PROTECTION OF INTELLECTUAL PROPERTY (IP) RIGHTS IN NIGERIA.

PROTECTION OF INTELLECTUAL PROPERTY (IP) RIGHTS IN NIGERIA.

 

Intellectual Property (IP) rights are pivotal for promoting innovation, creativity, and economic growth. In Nigeria, a nation marked by a burgeoning technology sector and rich cultural heritage, effective protection of IP rights is essential. This comprehensive analysis delves into the guidelines that shape the landscape of intellectual property rights protection in Nigeria, exploring the legal frameworks for its protection, registration processes and enforcement mechanisms.

LEGAL FRAMEWORKS FOR IP PROTECTION

Nigeria’s IP protection is governed by various legislative enactments, which provide protection for different categories of matters and they include:

1. 1. Copyright Act: This act provides protection for literary, artistic, musical, and dramatic works, sound recordings, and broadcasts. It establishes the Nigerian Copyright Commission (NCC) to oversee copyright matters and enforce rights. This Act was recently amended and now known as the Copyright Act of 2022.

The Copyright Act of 2022.

The Act provides a comprehensive explanation of copyright, encompassing various forms of creative works such as audiovisual, musical, artistic, literary, and broadcast. Furthermore, it tackles concerns relating to digital and online usage of copyrighted works by enhancing author rights and imposing stricter punishments for criminal violations. Additionally, the Act specifically safeguards audio-visual works in digital content. It declares it unlawful to utilize any form of internet content, including images, films, sound recordings, and other outputs, without the creators’ consent.

Section 2(1) of the Copyright Act 2022 makes provisions for works to qualify for copyright and they include:

(a) literary works;

(b) musical works;

(c) artistic works;

(d) audiovisual works;

(e) sound recordings; and

(f) broadcasts.

• Important New Clauses of the Act:

• The new act contains clauses that give copyright owners the authority to send out notifications of infringement for the removal or deactivation of links to illegal content. With regard to online content that violates copyright, the legislation gives the Nigerian Copyright Commission the authority to prohibit websites.

• The Act specifies the types of works that are eligible for copyright protection, including broadcasts, audiovisual works, sound recordings, and literary and musical compositions. The former act’s cinematography was removed from this list and replaced with audiovisual works.

• Folklore is a traditional cultural expression granted specific respect under the new Act and is shielded from exploitation for commercial advantage outside of its original context. Any party wishing to utilize folkloric terms for commercial purposes must first acquire consent from the involved indigenous group and/or the Nigerian Copyright Commission. Failure to comply might result in the user facing criminal penalties.

• The Act outlines criteria for relying on the fair dealing defense. These considerations include the intended use, the quantity and longevity of the section utilized in proportion to the work as a whole, and the impact of the use on the work’s potential market or worth.

• The law guarantees digital content protection. The creations of online content providers, including images, movies, audio files, and other media, are thereby shielded from copyright violations. Therefore, it is prohibited to utilize digital content without the owner’s or the authors’ permission.

• The new Act specifies the types of works that are eligible for copyright protection, including broadcasts, audiovisual works, sound recordings, and literary and musical compositions. The former act’s cinematography was removed from this list and replaced with audiovisual works.

• The statute makes it easier for those who are blind or visually impaired to access published works. This signifies a big step forward in the development of a society where everyone can benefit from education.

2. Trade Marks Act, Cap T 13, Laws of the Federation of Nigeria 2004 and the Trademark Regulations 1990: These legislations govern the registration and protection of trademarks, service marks, and collective marks. It establishes the Trademarks, Patents, and Designs Registry under the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment.

3. Patents and Designs Act, Cap P2 Laws of the Federation of Nigeria 2004: This act regulates the grant and protection of patents and industrial designs. It provides inventors with exclusive rights over their inventions for a certain period.

4. Trade Secrets Act (2004): This act offers protection for confidential business information and trade secrets, prohibiting unauthorized use or disclosure.

Accordingly, the guidelines for protecting Intellectual Property rights include;

1. Registration of IP Rights.

To protect IP rights, the first step begins with proper registration.

Ways of achieving this include;

1. Timely Registration: Promptly register patents, trademarks, copyrights, and designs with relevant government agencies – the Trademarks, Patents, and Designs Registry, and the Nigerian Copyright Commission. This provides legal evidence of ownership and protection against infringement.

2. Thorough Documentation: For effective protection, maintain detailed records of the creation and development of IP assets. Document the development process, creation dates and any improvements or modifications made. This documentation can be crucial in proving ownership and can serve as evidence in case of disputes or claims.

3. Use of IP Professionals.

Engaging IP lawyers, patent agents, and trademark attorneys is advisable, especially for complex cases. These professionals can guide you through the intricacies of IP laws, assist in filing applications, and represent you in legal proceedings.

3. Enforcement Mechanisms.

Effectively enforcing IP rights is crucial for deterring infringement and ensuring creators’ and inventors’ rights are respected. The ways by which it can be enforced are through;

1. Judicial Recourse: Seek legal action through the judicial system to enforce IP rights. Courts can issue injunctions, damages, and orders for the confiscation or destruction of infringing goods.

2. Customs Recordation: For trademarks and copyrights, record IP rights with the Nigerian Customs Service. This can help to prevent the importation of counterfeit or infringing goods and protect brand reputation.

3. Alternative Dispute Resolution (ADR): Explore mediation and arbitration as a faster and cost-effective means of resolving IP disputes.

4. Education and Awareness

Guidelines focusing on education and creating awareness are critical to fostering a culture of respect and protection for Intellectual Property rights. Hence, IP education should be Incorporated into academic curricula and professional training programs to equip students, professionals, entrepreneurs, creators, and inventors with the knowledge of their rights and responsibilities.  Regular workshops, seminars, and campaigns can help disseminate information on IP laws and best practice.

Also, stakeholder collaborations should be encouraged between government agencies, legal experts, industry associations, and academia to promote the importance of IP rights.

5. Licensing and Contract.

Clearly define the terms of use for your intellectual property through licensing agreements and contracts. These documents outline how others can use your IP while safeguarding your rights and revenue streams.

6. Monitoring and Vigilance.

Regularly monitor the market for potential infringements. Implement systems to track and identify unauthorized use of your IP. Prompt detection can help prevent further damages and legal complications.

7. Protection of Trade Secrets.

While patents and copyrights require public disclosure, trade secrets must be kept confidential. Implement robust internal measures to protect sensitive information, including non-disclosure agreements (NDAs) with employees and partners.

How to Register/Protect Intellectual Property Rights in Nigeria

1. Copyright

The Copyright Act does not provide for the registration of eligible works as copyright arises automatically upon the creation of such works. That is to say, there is no registry in which copyright works are registered. However, in fulfilling one of its obligations of creating a databank of authors and their works, the Nigerian Copyright Commission (NCC) has established a voluntary notification process by which authors can notify it of their works.

Notifying the NCC of the creation of an Eligible Work serves as evidence of the existence and date of creation of the work which may be helpful in the event of a dispute regarding ownership of the work.

2. Trademarks

3. Filing the Application:An application is made in the prescribed manner to the Registrar of Trademarks, either in Part A or Part B of the Register. The documents required to file a trademark application in Nigeria are as follows:

• Duly completed T.M. Form 1 ‘Authorization of Agent’.

• The name and address of the proprietor of the trademark.

• A representation of the trademark to be registered.

• An indication of the class of goods and/or services in which the trademark is to be registered.

1. Acknowledgement of Application: The Registrar, on receipt of the application, issues a letter of acknowledgement which contains all relevant filing details on the trademark (example, temporary number, date of application, the trademark etc.).

2. Examination of the Application: The Registrar examines the trademark for distinctiveness, similarity with existing registered trademarks and general compliance with the requirements of the law. Where the Registrar is satisfied, he issues a Notification of Acceptance for the mark to be advertised in the Trade Marks Journal for opposition purposes. Otherwise, the mark is refused and a Letter of Refusal is issued stating the reason(s) for the refusal. It takes about 6-12 weeks from filing an application to obtain an acceptance form.

3. Refusal of Application:Where an application is refused, the applicant must apply for a hearing in the matter within two (2) months, otherwise the application will be deemed abandoned. The hearing is an ex-parte forum for the applicant to lead evidence to persuade the Registrar to accept its application. Such evidence may include prior use, bad faith on the part of the proprietor of the cited mark, honest concurrent user etc. However, in practice, the Trademarks Registry does not schedule a physical hearing where an application is refused, rather, an applicant is allowed to file a written appeal outlining the reasons why its trademark application ought to be accepted by the Registry.

4. Acceptance and Publication: Where an application is accepted, there will be publication. Publication of the mark for opposition in the Trade Marks Journal may take as long 36 months because the Journals are not published regularly; as such there are backlogs of applications awaiting publication for opposition.

5. The Opposition Period: When a trademark is advertised, any person may within two (2) months from the date of the publication give notice to the Registrar, of his/her opposition to the registration of the mark. The Registrar shall send a copy of the Notice of Opposition to the applicant and the applicant shall within one month of receipt of the Notice of Opposition, file a Counter-statement containing the grounds on which it relies for its application to be registered. Failure to file the Counter-statement within the prescribed period will result in the application being deemed abandoned. Where a Counter-statement is filed, the Registrar shall furnish a copy thereof to the opponent. The opponent shall within one month of receipt of the Counter-statement lead evidence in the form of a Statutory Declaration after which the applicant shall also lead evidence in the form of a Statutory Declaration within one month of receipt of the opponent’s Statutory Declaration.

After both parties have submitted their Statutory Declarations, the Registrar shall invite them for a hearing, and after hearing the parties, decide on whether the application should be registered or not. The Registrar’s decision is subject to appeal to the Federal High Court. The parties may further exercise their right of appeal to the Court of Appeal and finally to the Supreme Court of Nigeria.

1. Issuance of the Registration Certificate: Where no opposition is received at the expiration of the opposition period or the opposition is determined and resolved in favour of the applicant, the Registrar is obliged to issue a Certificate of Registration for the trademark on payment of the prescribed fee. The registration date of the trademark will be the date of filing. This could take up to 6 months after publication depending on the backlog of certificates awaiting the Registrar’s signature.

2. Patents

Application for the grant of patent is made to the registrar of   Patent and Industrial designs which is under the Federal Ministry of Commerce, Abuja. The application consists of:

• A petition or request for a patent with the applicant’s full name and address (form 1A).

• A signed power of attorney authorization of agent if the application is made by an agent (form 2).

• A specification including a claim or claims in duplicate (form 3).

• Plans and drawings if any in duplicate.

• A declaration by the true inventor where applicable.

After Examination, the patent application is examined by the Registrar merely to ascertain formal compliance. Once the application satisfies the statutory requirements as to the completion of form and payment of appropriate fees, the Registrar is likely to grant the patent without enquiries to its novelty, inventiveness and industrial applicability or whether the specification sufficiently discloses the invention. Patents are granted at the risk of the patentee and without guarantee as to their validity. See Sections 3, 4 and 5 of the Patents and Designs Act.

4. Industrial Designs

An application for registration of an industrial design shall be made to the Registrar and should contain the following items:

1. Request for registration of the design.

2. The applicant’s full name and address and, if that address is outside Nigeria.

3. An address for service in Nigeria.

4. A specimen of the design or a photographic or graphic representation of the design with any printing block or other means of reproduction from which the representation was derived.

5. An indication of the kind of product (or, where a classification has been prescribed, the class of product) for which the design will be used.

6. Such other matter as may be prescribed.

The application should be accompanied by the following items:

1. The prescribed fees

2. Where the true creator is not the person who filed the application, a declaration signed by the true creator requesting that his name be included in the Register of designs.

3. A signed power of attorney if it is filed by an agent.

The application will be examined by the Registrar as to whether it is contrary to public order or morality and contains the items stipulated above. The Registrar will approve the registration if he is satisfied that the application complies with the requirements without further examination as to whether the registration might be contrary to the requirement of newness. Once it is registered, the applicant will be issued a certificate of registration. The registration subsists for five years from the date of the application and may be renewed for two further consecutive periods of five years upon payment of the prescribed fee.

The Role of the Judiciary in Protecting Intellectual Property Rights.

Nigerian courts play a vital role in protecting the intellectual property rights of individuals. In the case of Multichoice Nig. Ltd. v. M.C.S.N. Ltd. Gte., the Court emphasized the right of a musician to his/her works as a propriety right that needs to be protected. The Court held thus:

“A musician is a composer who creates something out of nothing. The product of his ingenuity is music which is the soul, lubricant and elixir of life. He acquires intellectual interest over his musical work, which racks pari passu with other proprietary rights.” (P. 535, paras. E-F)

The intellectual property law allocates power to the court to award additional punitive damages where the infringement of intellectual rights occurs, inter alia, vulgarization of the work, economic loss or unjust enrichment of the offending party. See U.B.N. Ltd. v. Odusote Bookstores Ltd.

In the case of Maurice Ukaoha v. Broad-Based Mortgage Finance Ltd. & Anor, the Court granted an injunction restraining the defendants from further infringing the plaintiff’s copyright, as well as awarded N 250, 000. 00 (Two Hundred and Fifty Thousand Naira) as general damages for the infringement of the plaintiff’s copyright.

CONCLUSION

Nigeria’s guidelines for the protection of intellectual property rights serve as a blueprint for fostering a thriving ecosystem of innovation, creativity, and cultural preservation. By adhering to these guidelines, Nigeria can encourage inventors, creators, and entrepreneurs to generate value from their intellectual assets. To fully realize the potential of IP rights, the country must continually address enforcement challenges, enhance public awareness, and remain steadfast in its commitment to international agreements. The protection of IP rights not only contributes to Nigeria’s economic growth but also solidifies its place in the global landscape of innovation and creativity.

 

 

[1] Esegi Maureen, ‘Nigerian Copyright Act 2023: An In-Depth Overview.’ Available Online at https://www.mondaq.com/nigeria/copyright/1323108/nigerian-copyright-act-2023-an-in-depth-overview. Accessed August 23, 2023.

 

[2] Section 54 & 55 of the Copyright Act, 2022.

[3] Section 2(1) of the Copyright Act, 2022.

[4] Section 74, 75 and 76 of the Copyright Act, 2022.

[5] Section 2 of the Copyright Act, 2022.

[6] Section 26 of the Copyright Act, 2022.

[7] F.O Babafemi. Intellectual Property: The Law and Practice of Copyright, Trade Marks, Patents And Industrial Designs In Nigeria (Ibadan, Justinian Books Limited: 2007) Pg. 19.

[8] Sections 17, 18, 21, and 22 of the Trade Mark Act of Nigeria.

[9] Sections 13, 15, 16, and 20 of the Patents and Designs Act of Nigeria.

[10] (2020) 13 NWLR (Pt. 1742) 415.

[11] (1995) 9 NWLR (Pt. 421) 588.

[12] (1997) F.H.C.L 477.

[13]Ogooluwa Osilesi, ‘Impact of IP Law in the Economic Development of Nigeria.’ Available online at https://www.lawglobalhub.com/impact-of-ip-law-in-the-economic-development-of-nigeria/. Accessed August 21, 2023.