Nigeria: Sub-Sahara Africa: Intellectual Property Rights Development

By Uche Nwokocha¹

Introduction

Sub-Sahara Africa has become a place of interest for the world. Though the region recorded an enormous in-flow of investment in the past decade, there are however palpable set-backs that still impede economic development. Some of these include:

• Political instability

• Poor leadership

• Lack of advanced technology

• Low level of education and infrastructure

One area through which the Region can explore huge investment opportunities is in intellectual property rights development and protection. This will result in increased revenue.

Definition of Intellectual Property

• The World Intellectual Property Organization (WIPO) defines intellectual property as:

• Intellectual property rights have been defined as property rights in something intangible that protect innovations and reward innovative activity.

What is Intellectual property?

This is aptly put in the following quote by Ben Franklin:

Categories of Intellectual Property Rights

• Intellectual property is divided into two categories:

Overview of Intellectual Property Law

• Basically, intellectual property law protects the right of owner of a work created by exertion of mind or intellect to use the work exclusively, barring any use of the work without the owner's prior consent.

• Intellectual Property Rights (IPRs) are classified into different rights ranging from copyright, trademark, industrial designs, patents, Utility Model Plant and Animal Variety , amongst others.

• The term 'intellectual property' scarcely describes trade marks and similar marketing devices; but has now acquired international acceptance. IP or IPR is indeed becoming a fashionable description of research results and other original ideas, whether or not they fall within the ambit of what the law protects.³.

• Certain IPRs do not protect ideas but the expression of such ideas. The expression of this idea must also satisfy the requirement of disclosure in some cases.

• The question constantly raises agitation is how to balance the rights of an inventor or owner of an IPR with the right of the public to share in the work. The patent system is designed to promote innovation and, at the same time, offer a mechanism that would ensure that the fruits of such innovation are accessible to society. In the context of public health, the challenge for policy makers is to find an optimal balance between the rights of patent owners, who provide technological innovations to improve health conditions, and the needs of the general public.

• The challenge of balancing the private interest of the IPR owner with the public rights of disclosure forms the circle of intellectual property protection characterized by the laws of the States in the region and the world in general.

• The role of IPRs is to ensure that the intellectual property owners do not lose rights to the information by disclosing it since such information can be used by an indefinite number of persons simultaneously⁴.

• Most applications for IPR protection in sub-Sahara Africa are not filed by the nationals or residents of the region. Statistics show that most patent applications emanate from North America, Europe and Asia while Africa only accounts for less than 2% of total applications made⁵.

• In Nigeria, about 99% of patents applications lodged with the Patent & Designs Registry are made on behalf of foreign brand owners in Europe, United States of America and Asia. South Africa accounts for less than 1%.

• Trademark seems the most active IPRs in sub-Sahara Africa most especially in Kenya, Ghana, Gambia, Nigeria, and South Africa. This is the area of IPRs which had witnessed numerous applications from nationals of the region. Copyright has not really witnessed any notable activity in the region. Most transactions involving copyright are rather done on an informal basis. It is ironic that the region produces quite a number of home video entertainments with Nigeria leading the chart in Africa. Still some of these works are not protected due to lack of awareness of IPRs. At a recent workshop on Intellectual Property Rights for Professionals in the film industry, a speaker from the copyright office in Kenya suggested that the Nigerian Copyright Commission (NCC) should work with its Kenyan counterpart to find ways to rid the streets of Nairobi of Nigerian films imported from China without the consent of the owners of such rights.
  

• The Nigerian movie industry (Nollywood) is second only to United States (Hollywood) and India (Bollywood) in the production of about 200 home videos per month⁶. Nollywood attracts multi-million dollars investment locally and internationally although it is still struggling with some technical and quality issues⁷.

• Though IPR has fully developed in other regions, this is not the case in Sub-Sahara Africa. The major reason for this is the impact of Intellectual Property Rights on access to medicine and food. There has been a challenge between the biological resources provided by or usually assessed from the Sub-Sahara Africa and the technology provided by the developed nations of Europe and North America⁸ .The resultant effect of these are:

Administration of Intellectual Property Rights

• A few countries in the region have taken bold steps to put in place legal framework for the prevention of the infringement of intellectual property rights.

• In Nigeria, the Nigerian Copyright Commission (NCC)¹⁰, a creation of the Federal Legislature, is empowered to regulate the music, publishing, artistic, literary societies. The Nigerian Broadcasting Commission¹¹, also a creation of the legislature regulates the broadcasting rights, licenses, and assignments. The Registry of Trade marks, Patents & Designs regulate the filings of trade marks industrial designs as well as grant of patents in Nigeria. Likewise, the National Office for Technology Acquisition and Transfer¹² registers Technical Service Agreements and Technology Transfer and Know-How Agreements.

• Similar frameworks also operate in Kenya, South Africa and other countries.

• Practicing lawyers in the administration of IPRs also play a crucial role. The Registries mentioned above are inundated with filings and applications for trade mark and patents. The Nigerian IP lawyers have taken the challenge with the formation of the Intellectual Property Lawyers Association of Nigeria (IPLAN), Nigerian local chapter of the International Association for the Protection of Intellectual Property (AIPPI), Anti-Counterfeiting Collaboration (ACC), Nigeria¹³. These pressure groups are formed with the sole objective of improving and developing intellectual property in Nigeria as well as lobbying for IP law reform. The Intellectual Property Commission (IPCOM) Bill which is currently awaiting presidential assent is largely due to efforts of the IP community and the various associations mentioned above.

• The faculties of law of Nigerian Universities offer courses in Intellectual Property Law by which undergraduate students are introduced to major developments in intellectual property law. In the curriculum of studies, IP students are given hypothetical cases on compulsory licensing of pharmaceutical products. Moot court competitions on intellectual property issues are organized among students. Students are also admitted into internship programs with leading IP law firms in Nigeria.

• The Performing Musicians Association of Nigerian (PMAN) and Federation of Intellectual Property Owners (FIPO) both play significant roles in protecting members' rights.

• Collecting Societies¹⁴: As mentioned above, the continent boasts of a multi-million Dollar investment in "home video" entertainment. Nigeria is the third largest home video entertainment country with over 200 home videos released every month. The music industry is growing in the region with the introduction of Music Broadcast stations like Nigezie and Channel O, to mention just a few. The need for a system of collection of royalty is coming up in the region. These societies grant licenses to distributors and users of copyright works most especially music and collect royalties in return.

CHALLENGES TO THE DEVELOPMENT OF IPRs IN SUB-SAHARA AFRICA

• Inadequate Skills and Personnel:

The administration of IPRs in Sub-Sahara Africa is incapacitated by inadequate skills. Persons involved in its administration are usually not experts. For instance in Nigeria, patent examiners are not experts in the field of science and technology, therefore the grant of a patent is as to form only, there is no substantive examination.

• Infrastructure and IT:

The infrastructure for operation of IPR in sub-Sahara Africa is still largely undeveloped. Information Technology is also in the early level of development thus not encouraging proper research by IP experts, students and scholars. Filing of applications is always slow in the region whereas IPRs vest on the date of filing as against the date of grant. The process of grant of IPR could take years due to the limited infrastructural facilities¹⁵ at the Trade mark and Patent Registries. These infrastructure deficiencies have not encouraged business development in Africa with bottlenecks in passage of goods and services between borders in the region.

• Development in Law:

It is quite disappointing that after decades of independence most countries in the sub-Sahara Africa have not made any significant change in their IP laws, the laws have remained outdated. Some of the major problems facing development in IP law in Nigeria are enumerated below.

1. Africa still lags behind in developing an indigenous law that will address basic issues on IPRs germane to its economy and intergovernmental activities in the region. In the area of trademarks, there have been developments of other forms of marks different from marks relating to goods. There are service marks, scent marks, sound mark and slogans. Presently in Nigeria, service mark is only now recognized and protected by an amendment to the regulation made by the Minister of Commerce in exercise of his powers under the Trade Mark Act, 1965. There have been questions as to whether that amendment is legal¹⁶. The grant of patent on some plant varieties and seeds already in force in England has been recognized and regulated in Kenya¹⁷ and South Africa¹⁸ and it is indeed a milestone development. Nigeria and some other sub-Sahara Africa still regard plant varieties as non-patentable in their laws¹⁹. It is hoped that this will be corrected in the Bill amending the Trademark Act of 1965
2. The judiciary is not up to date with issues relating to IPRs. Most cases found in these courts are only limited to trademarks while there are very few on copyright and patents Nigeria. Also most IP cases are settled by the parties before they get to the appeal courts.

South African Case

The legislative 1997 amendment to the Medicines Act was intended to provide for the parallel importation of patented medicines. The 1997 Amendment Act, which amended the South African Medicines and Related Substances Act no. 101 of 1965, introduced a new section 15C. The Minister may prescribe conditions for the supply of more affordable medicines in certain circumstances so as to protect the health of the public, and in particular may:

It will be noted that the language of section 15C appears to provide the Minister (of Health) with wide powers to override patent laws and patent rights. This would be contrary to TRIPS.

It should also be noted that paragraph (b) of section 15C, which deals with the importation of an "identical" medicine does not refer to importation by persons other than the patent owner, but to importation by persons other than the holder of the "registration certificate" in respect of the medicine - presumably the certificate authorizing the marketing of the medicines. This discrepancy created some uncertainty in the patent context.

However, in regulation 7 of the Regulations issued in terms of section 15C, there is a clear reference to the importation of a patented medicine sold outside South Africa with the consent of the patent holder. This is interpreted as an indication that parallel importation is in fact contemplated by the legislature.

This is, unfortunately, not entirely clear because the term "parallel importation" (which is defined in the definition part of the Regulations as (the" importation into the Republic of a medicine protected under patent and/or registered in the Republic that has been put onto the market outside the Republic by or with the consent of such patent holder") has not been used in regulation 7. The Guidelines issued respect of the Regulations, appear to support the argument that parallel importation is indeed what is contemplated in regulation 7, so that regulation 7 should be interpreted and applied in its correct sense, namely to refer to the importation of branded products obtained outside South Africa from the patentee or its authorised licensees.

Accordingly, the importation mechanism created by regulation 7 was not intended to provide a means for importing generic equivalents.

• Piracy and Counterfeiting:

As big as the potentials of Intellectual Property Rights operation in Africa is, piracy and counterfeiting have become the factor frustrating its development. Sub-Sahara Africa is indeed a big market with so much potential for growth. The region has not been able to achieve maximum potential due to acts of piracy and counterfeiting. Nigeria remains a gateway to the rest of the region for counterfeit products and fake goods are constantly being offered alongside genuine goods to unsuspecting and undiscerning consumers.

• The IP laws of Nigeria for instance do not provide for adequate enforcement of the rights of an owner of intellectual property. The penalty for infringement especially piracy and counterfeiting is not sufficient to deter would-be offenders. The only remedy for an owner is civil action in court, there is no provision in the law for criminal prosecution except in the area of copyright where the owner can institute a criminal action thorough the NCC

International Relations and IPRs Development

The establishment of World Intellectual Property Organization has brought in its wake the need to uplift Sub-Sahara Africa and make it the beneficiary of globalization and international development. This has been reiterated in treaties and updates²⁰. WIPO is constituted of 184 member States, with forty-eight of them in Sub-Saharan Africa²¹[2]. The WIPO is set to bring about cohesion and inflow of activities among member States. One of the treaties of WIPO is the Berne Convention for the Protection of Literary and Artistic Works 1886. The provisions of this treaty is targeted towards developing countries. The treaty comprises of three major principles vis: principle of national treatment; principle of automatic protection and principle of independence of protection.

The WIPO also acts as depository to other treaties which include the WIPO Copyright Treaty regulating copyright protection among member nations also stressing the principle of national treatment, and WIPO Producers of Phonograms Treaty regulating phonograms production and protection of rights of phonograms.

An extension of the international relations to the development of IPR is the creation of World Trade Organization (WTO), which succeeded General Agreement on Tariffs and Trade (GATT) in 1994. The advent of an international economic order has fundamentally changed the nature of the global economy, affecting countries as well as the firms and individuals in every nation and region²². The introduction of WTO brought about the start of international economic law. One of such provisions in this respect is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Prior to TRIPS Agreement, countries practiced the doctrine of territoriality (which states that property rights are to be honoured by each State's rules) and the doctrine of independence (which states that the grant of property rights within one country does not have force in another)²³. This however changed with the introduction of TRIPS Agreement which preaches free market economy as against the earlier practice by least developed countries (LCDs) of reduction of benefits to innovators (working requirement and compulsory licensing)²⁴.

The framework of TRIPS Agreement emphasizes the view that the justification for granting IPRs is to present to the innovator some monopolistic return for an investment that will benefit society and which would otherwise not occur. Provision is however made to address the issues of concern to developing countries²⁵[6]. The Agreement also reinforces transfer of technology between the developed and developing countries of the world²⁶.

Over a period of time, member countries have met to formulate policies further to the implementation of the provisions of TRIPS Agreement. Some of such meetings are the Doha Round negotiations whereby the Doha Declaration on TRIPS and Public Health (""Doha Declaration) calls for flexibility to allow LDCs to decide on extent of intellectual property protection in the face of public health crises which can constitute national emergencies. The Doha Declaration allows LDC member States to grant compulsory licences for the importation of drugs in cases of emergency which is usually determined by these countries subject to notification to the General Council²⁷.

The above discussion shows that the WTO with the WIPO allows for participation of Sub-Saharan African countries in internal economic development thus attaining the status of technology oriented States in near future through transfer of technology.

African Regional Intellectual Property Organization

The Sub-Sahara African countries have also gone a step further by creating a regional institution in intellectual property rights. This is known as the African Regional Intellectual Property Organization (ARIPO²⁸). The history of ARIPO goes back to the early seventies when a regional seminar on patents and copyright for english speaking African countries was held in Nairobi. That seminar recommended that a regional industrial property organization be set up. In 1973, the United Nations Economic Commission for Africa (UNECA) and the World Intellectual Property Organization (WIPO) responded to a request by these english speaking African countries for assistance in pooling their resources together in industrial property matters by establishing a regional organization.

Following a number of meetings at UNECA headquarters in Addis Ababa and WIPO in Geneva, a draft Agreement on the Creation of the Industrial Property Organization for English-speaking Africa (ESARIPO) was prepared. This agreement, now known as the Lusaka Agreement, was adopted by a Diplomatic Conference held in Lusaka, Zambia on December 9, 1976. This organization is established by a Treaty and a Protocol to the Treaty. The Treaty basically sets up the administrative organs and financial obligations of its member States. The objectives of the organization include;

1. to promote the harmonization and development of the industrial property laws, and matters related thereto, appropriate to the needs of its members and of the region as a whole;
2. to foster the establishment of a close relationship between its members in matters relating to industrial property;
3. to establish such common services or organs as may be necessary or desirable for the co-ordination, harmonization and development of the industrial property activities affecting its members;
4. to organize conferences, seminars and other meetings on industrial property matters;
5. to promote the exchange of ideas and experience, research and studies relating to industrial property matters;
6. to assist its members, as appropriate, in the acquisition and development of technology relating to industrial property matters;

Beside ARIPO, there are two regional documents that attempt to address the issue of patent protection, namely the Lome Convention and Lagos Plan of Action which espouse the policies that relate to acquisition and absorption of foreign technology. However, the documents emphasize trade in tangible as opposed to intangible products²⁹.

Conclusion and Recommendations

The Intellectual Property Rights is developing in Sub-Sahara Africa though, we recognize, it is not where it ought to be. There are a number of significant developments in IPRs in the region and they are briefly enumerated as follows.

1. The role of collecting societies in Nigeria is fast becoming significant and an example of this is the licensing of traders in Alaba International Market Lagos, to produce and distribute albums belonging to the members of those societies. In combating piracy, the Nigerian government also introduced through the Nigerian Copyright Commission (NCC), the Copyright (Optical Discs Plants) Regulations 2006 which mandates all disc manufacturing companies in Nigeria to register with the NCC and meet required conditions for operation.
2. In Kenya and South Africa, there has been the introduction of new laws recognising some plant varieties and conditions for grant of patents coupled with grant of Plant Builders' Right to agricultural and horticultural produce³⁰.

The need for an impressive development of IPRs is however conditional on some factors being put in place and they include:

1. Proper review and amendment of IP laws in Sub-Sahara Africa to indicate contemporary issues in IPRs.
2. Provision and maintenance of infrastructure to allow easy access to information and development of IPRs through transfer of technology to the region since IPRs need to be worked in the domiciled country for listing in the register or archives of the ministry.
3. Financing of university education on Intellectual property and technology and provision of IT facilities to aid learning culture, research and application of technical know-how
4. Intensive and regular training of IP personnel and practitioners to keep abreast of current developments in contemporary IPRs.
5. Ratification, intensive operation of and participation in Treaties of WTO on IPRs.
6. The introduction and adequate implementation of collective system of royalty payment and collection.
7. Appointment of IP experts and professionals into offices and parastatals for the implementation of policies on IPRs.
8. Introduction and enforcement of local content in multinational companies for transfer of knowledge and technology to nationals of sub-Sahara Africa.

Footnotes

1. Ms. Nwokocha serves in the position of Partner in Aluko & Oyebode. Capitalizing upon many years of in-depth training, background experience in law, qualifications and an astute grasp of her field of expertise, she is responsible for managing the intellectual property portfolio of clients and advising clients on their specific needs. Ms. Nwokocha utilizes her vast legal expertise to turn potential into action through meticulous preparation and skilled training. Motivated by life's many challenges, she attributes her professional success to high ethical standards and conduct, good interpersonal and communication skills, and dedication. For the future, Ms. Nwokocha is committed to providing optimum service to Aluko & Oyebode through continued "best" practices and customer satisfaction.
2. ] http://www.wipo.int/about-ip/en/assessed on 23rd January, 2008
3. Cornish, W. R., "Intellectual Property: Patents, Copyright, Trade marks and Allied Rights" 4th Edition, Sweet & Maxwell at p.3
4. Kameri-Mbote, Patricia: "Intellectual Property Protection in Africa: An Assessment of the Status of Laws, Research and Policy Analysis on Intellectual Property Rights in Kenya" assessed from http://www.ielrc.org/content/w0502.pdf
5. Ibid.
6. http://en.wikipedia.org/wiki/Cinema_of_Nigeria assessed 23rd January, 2008
7. ibid
8. Kameri-Mbote, Patricia: "Intellectual Property Protection in Africa: An Assessment of the Status of Laws, Research and Policy Analysis on Intellectual Property Rights in Kenya" Ierlc Working Paper 2005-2 assessed from http://www.ielrc.org/content/w0502.pdf; Swanson, Timothy: "Diversity and Sustainability: Evolution, Information and Institutions, in Intellectual Property Rights and Biodiversity Conservation – An Interdisciplinary Analysis of the Values of Medicinal Plants 1" (Timothy Swanson ed., 1995) noting that 12 developing countries hold about 50% of all biodiversity
9. Protection of IPRs was made a topic at the G8 Summit.
10. Established by the Nigerian Copyright Act CAP N97 Laws of the Federation of Nigeria, 2004
11. Established by the Nigerian Broadcasting Commission Act CAP N11 Laws of the Federation of Nigeria, 2004
12. Established by the National Office for Technology Acquisition and Transfer Act CAP N 62 Laws of the Federation of Nigeria, 2004
13. membership includes brand owners and regulatory authorities and others
14. There are presently two collecting societies in Nigeria: Musical Copyright Society of Nigeria, and Performing & Mechanical Rights Society. Collecting Societies in Nigeria are regulated by the Copyright (Collecting Societies) Regulations 1993
15. Including but not limited to inadequate electricity supply, inadequate communication system, poor road network and insufficient Information Technology know-how
16. Section 45, Trade mark Act 1965, CapT13, LFN 2004
17. The Seeds and Plant Varieties Act [insert citation]
18. Plant Breeders' Rights Amendment Act No. 15 of 1996
19. Section 1(4), Patents and Designs Act, Cap P2, LFN, 2004
20. Update 214/2003, Geneva, December 1, 2003 "WIPO pledges support for development of Africa" http://www.wipo.int/WIPO-UPD-2003-214 WIPO Pledges Support for Development Of Africa.mht/
21. Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo (Brazzaville), Cote d'Ivoire, Djibuti, Equitorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissaau, Kenya, Lesotho, Liberia, Madagascar, Malawi, Mali, Mauritania, Mauritius, Mozambique, Namibia, Niger, Nigeria, Rwanda, Sao Tome and Principe, Senegal, Seychelles, Sierra Leone, Somalia, South Africa, Sudan, Swaziland, Togo, Uganda, Zambia, Zimbabwe.
22. Yueh, Linda Y.: "Global Intellectual Property Rights and Economic Growth" Northwestern Journal of Technology and Individual Property, Vol.5, No.3 (Summer 2007) p.436
23. Ibid at p438
24. Ibid op cit.
25. Ibid op cit
26. Article 66 – 67, TRIPS Agreement
27. WT/L/540 and Corr.1: Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement nad Public Health; Decision of the General Council of 30 August 2003
    WT/MIN(01)/DEC/2 20 November 2001: Doha Declaration on the TRIPS Agreement and Public Health, Adopted on 14 November, 2001
28. http://www.aripo.org/articles.php?lng=en&pg=14 Membership of ARIPO: Botswana, the Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe; Potential Members include: Angola, Algeria, Burundi, Egypt, Eritrea, Ethiopia, Liberia, Libya, Mauritius, Nigeria, Rwanda, Seychelles, South Africa and Tunisia
29. Kameri-Mbote op cit 20
30. Kameri-Mbote, Patricia: "Intellectual Property Protection in Africa: An Assessment of the Status of Laws, Research and Policy Analysis on Intellectual Property Rights in South Africa"; being an IELRC Working Paper 2005-2

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