Let us imagine we had a time machine, and we went back to the 15th century. Of all the things we would see, we know that we would be fascinated by some things, and cringe at the sight of others. The factors and elements that make for the seeming astronomical advancement in this age, compared to the 15th century, would largely be the absence of technological advancement in diverse ramifications, including but not limited to the medical, legal, finance sectors in the 15th century.
As human beings grow out of their formative years, there usually is the gnawing desire in many to do something great and achieve cosmic feats. Many centuries ago, this situation displayed itself through the way humans would usually strive towards the acquisition of properties, slaves, and essentially, amass anything that would generally be accepted as a legal tender, or an object which conveys status. These objects and legal tenders were usually protected by soldiers and other security apparatus conceived as adequate by the owners of the properties.
As many years and different decades flew by, we started to have diverse innovations, inventions, businesses that disrupted the normal course of living, and many quantum leaps. With the array of inventions, a number such as the Gregorian Calendar established by Pope Gregory XIII in 1588, the water thermometer by Galileo in 1593[i], the adding machine invented by Blasie Pascal in 1642[ii], and the Piano invented by Bartolomeo Cristofori in 1709[iii] gained notoriety. In the 19th century, George Eastman invented the Photographic film usage and the Kodak Camera[iv]. The above instances are a reference to the fact that as the years progressed, thousands of inventions were made in the world at large. Before examining how the Law through intellectual property rights protects the rights of Creatives, it would be pertinent to briefly examine the concept of Intellectual Property, and Creatives.
DEFINITION OF INTELLECTUAL PROPERTY
According to the World Intellectual Property Organization (WIPO), Intellectual property refers to the creation of the mind. We cannot underplay the importance of creativity and inventiveness, as they are vital and play a large role in being a fillip for economic growth, the creation of new jobs, and enhancing the quality and enjoyment of life. Therefore, we can define creatives as people who in essence, create. They create art or advancement in the technological hemisphere, not just for the purpose of making quick money, but for making a difference in the quality of human existence and for ease of living. They color outside the lines, they think differently to come up with things that are different, which makes and essentially, they are inventors. Creatives either create new things and develop new ideas, or they develop already existing ideas and designs which are still in their crude forms. Examples of creatives in the 21st century include Chuck Hull, who is the inventor of 3D printing, Satoshi Nakamoto, who invented the Blockchain Technology, Dan Brown, who wrote diverse novels including: The Davinci Code, Digital fortress, Origin, etc.
PILLARS OF INTELLECTUAL PROPERTY
There are four (4) pillars of intellectual property, namely: Trademarks; Copyrights; Patents and Trade Secrets[v]. In Nigeria, the jurisdiction to hear intellectual property law cases is given under S.251(1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) exclusively to the Federal High Court. This has also been entrenched in the Nigerian Patents and Designs Act[vi]
A patent is a type of intellectual property that gives whoever it is conferred on, the legal right to exclude others from making, using, or selling without permission, that invention for a specified of years.[vii] Patents generally protect inventors who have brought something unique to the world’s table. By patenting an invention, the patent owner gets exclusive rights, and can stop anyone from using, making or selling that particular invention without permission. It should be noted that pursuant to Section 7 of the Patent and Designs Act (Cap P2, LFN 2004), patents generally last for 20 years, and that the patent right is usually in exchange for disclosure in respect of the full details of the invention, which the Patent Owner has to make after 20 years in published patent documents. General examples of patentable items would include Unique business methods, Computer software, Games, Internet advances, Perfumes, Magic tricks[viii]
Trademarks refer generally to signs and symbols which are capable of distinguishing the goods or services of one enterprise from the other. Trademarks cover a vast array of signs, inclusive of words, letters, numbers, symbols, colours, pictures, three- and two-dimensional signs like shapes, holograms, sounds and even tastes and smells. The core principle for registering a trademark is distinctiveness. Depending on the particular geographical location or jurisdiction, trademarks usually convey protection for a specified number of years after which they must be renewed. Major examples of common trademarks around the world include the Apple logo, the Nike ‘Just do it’ design, etc. We have diverse classes of trademarks including but not limited to Generic marks, Descriptive marks, Trade dresses, Certification marks, to mention a few[ix]
A copyright is a right that seeks to protect literary works. It vests someone creates or authors an original piece of work like a literary work, movie, music or diverse kinds of software.[x] It is essentially the right which a creative possesses in his literary work. A creative possesses both an economic and a moral right in his work. An economic right in the context of copyrights is the right a creative has to control the distribution of his work.[xi] A moral right is the right a creative has to be formally recognized as the creator of the literary work, and the right to prevent the literary work from being altered in such a manner as to damage the creative’s reputation.[xii] The moral right to a literary work has also been provided for in Section 12 of the Nigerian Copyright Act, while the economic right to a literary work has been vested on a creative in Section 13(a) of the Nigerian Copyright Act.
A trade secret is any confidential business information which provides an enterprise a competitive edge and is unknown to others. They are intellectual property rights that border on confidential information which may be sold or licensed. To crystallize the position of an information as a trade secret, the information has to be commercially valuable, be known only to a limited group of persons, and notable steps must have been taken to make it confidential. Violations like industrial or commercial espionage, breach of contract and breach of confidence are usually actionable by law.[xiii]
PROTECTION OF CREATIVES
All the aforementioned pillars of intellectual property seek to protect creatives and whatever they have set out to create. There are usually guidelines and factors that creatives must meet before they are protected by these pillars. The importance of intellectual property protection cannot be overemphasized. Asides setting one’s business apart from competitors, the IP can be sold or licensed, thereby providing a veritable stream of income. IP protection makes for the possibility of offering customers a unique service, and can form an integral part of branding.[xiv] There are also some landslide instances of how creatives were protected from intellectual property infringement. A look at Apple iPhones would inform the viewer of the fact that the corners of the phone are rounded. Amongst many others, Apple actually patented that design feature. After Samsung used the same design, they were ordered to pay hundreds of millions in damages for patent infringement[xv]
Another case in point was the downfall of Napster. In 1999, a student created Napster. The object of the app was to allow people download copyrighted songs around the world without paying for them. A & M records, alongside other record companies, filed a lawsuit against Napster, stating that Napster and its recent activities contributed to copyright infringement. The Peer-to-peer network was eventually shut down[xvi]
Reporting an IP infringement has become very easy, as social media platforms like Instagram, Facebook, Twitter, etc, have buttons through which they can report infringement of their rights. A warning could be issued to the infringer by way of a ‘cease and desist’ letter, especially if the infringement of the right has not latently progressed. A lawsuit could also be initiated which would seek for Payment of damages to compensate for the infringement and payment of profits which were unlawfully made from the infringement.
LOOPHOLES IN INTELLECTUAL PROPERTY LEGISLATION
There are some loopholes in the general legislative dimension of intellectual property in Nigeria, and sadly, some Nigerian creatives fall victim to these issues. First off, a cursory look shows that most Nigerian IP laws are old and are not in accordance with 21st century international best practices. A major example of this is the Trademarks act that was enacted in 1967, and the Patent and Designs Act which was enacted in 1971. In advanced countries like the UK, there have been several reforms that have been carried out on the Trade even as recently as 2018. This largely comprises the position of creatives in Nigeria as the law is seemingly unable to keep up with upcoming developments. It is in the best interest of creatives that these legislations are updated so they would be up to par, and be in sync with International best practices
There is equally the challenge of deficiency in enforcing Intellectual property regulations. There really is no point updating the legislations if the mechanisms requisite for the effective implementation of these laws are absent. Institutions saddled with the responsibility of enforcing these laws are mostly underfunded, or still seen to handle outdated equipment and technologies. The institutions concerned in enforcing IP laws are to be funded adequately, and provided with the tools necessary for the effective implementation of IP laws.
In the International space, there are multilateral efforts to protect IP rights that Nigeria has not exactly taken advantage of. Global organizations like the Harare-based African Regional Intellectual Property organization and the Geneva-based International Patent Cooperation Union provide for regional and international registration of Intellectual Property rights. Not only is Nigeria not a member of these organizations, Nigeria has not ratified very recent intellectual property treaties, conventions and charters to which it is a signatory to, as instructed in S.12 of the Nigerian Constitution
Due to the underfunded nature of most institutions in Nigeria, there is the seeming inability to cross-reference data. There is even the lack of a common data bank to the end of regulatory alliance. There is a dearth of coordination amongst agencies that ordinarily impact Intellectual Property rights, and this invariably makes holders of intellectual property rights vulnerable to infringement. For example, the National Agency for Food and Drug Administration and Control (NAFDAC) requests for a Notice of Acceptance of Trademarks as one of the documents for the registration of a regulated product. In the event that the trademark is subsequently opposed successfully, there is usually no communication to NAFDAC. To solve this, an efficient cross-referencing system through data banks and other mechanisms should be created by the Government to ensure a coordinated attempt to reduce the occurrence of regulatory conflicts and avoidable lacunae.
Intellectual property rights are of great advantage to the average creative, and it is the duty of the Government of a given Nation to seek to ensure that the institutions are saddled with the responsibility of enforcing these rights and efficiently equipped.
[vi] Section 32 of the Nigerian Patents and Designs Act
[xi] World Intellectual property organization
[xii] World intellectual property organization
Written by Theophilus Aigbogun
Theophilus Aigbogun is an Associate with Marcus-Okoko & Co., and specializes in Tech Advisory, Legal-Tech and Regulatory Compliance.