INTRODUCTION:
Artificial Intelligence (AI) is reforming economies all across the world by proffering novel products and services which creates an avenue for the generation of greater productivity gains, improved efficiency and lower costs. This is a radical change from the usual practice and such that has the tendency to permeate every aspect of the economy of any given nation. Studies accentuate that Artificial Intelligence has a vital economic impact on developing economies in the world. Recent research conducted on 12 developed economies in the world, all of which together generate more than 0.5 % of the world's economic output, projected that by the year 2035, AI could double the annual global economic growth rates.1 This is because Artificial Intelligence has a massive impact on healthcare, communication, financial, legal and commercial services to mention but a few. Studies have predicted that by 2025, Artificial Intelligence will be a 190-billion-dollars business venture. As a result of this, about 83 per cent of companies are also reported to state that it is their future priority.2 Due to the obvious benefits of Artificial Intelligence (AI), Legislators in countries all over the world, particularly those with developing economies, are making painstaking and conscious efforts to provide a legal framework that will establish, protect and encourage further innovations and development in the field. It therefore becomes pertinent that the legal system is such that copiously protects the rights of inventors thereby enabling them to fully maximize the economic benefits of their inventions. This paper therefore will take a critical look at the legal framework that has been put in place to protect the rights of the inventors of these technologies in Nigeria. This article seeks to consider and answer this question: 'Is the Nigerian law well-structured enough to protect the rights of the inventors of Artificial Intelligence (AI)?
CONTENT
What is Artificial Intelligence?
Artificial intelligence (AI) is a field of computer science focused on the creation of systems, machines and technologies that are capable of performing tasks that ordinarily require human(natural) intelligence. These machines are programmed in such a way that they can improve and upgrade themselves based on the information that they receive. AI can be in several forms, it could be interactive, text recognition, analytic, functional or visual.
Who is an inventor?
An inventor is a person who is the first to create something that was not in existence. Hundreds of years ago there were no cars, aeroplanes, helicopters, telephones, computers, etc. These were invented at different times and countries as a result of individual effort or joint efforts of a group of individuals.
Intellectual Property rights are legal rights established to protect and ensure the economic gain of creators or inventors from their inventions or creations. In every country and jurisdiction of the world, there exists laws that regulate the protection of intellectual property rights. There are typically four categories of intellectual property rights protection which are, Copyrights, Patents, Trademarks, and Trade Secrets. Other types include industrial designs, protection of geographical indications (GIs), IC lay-out designs, and new plant varieties.
In Nigeria, the Patents and Designs Act, the Copyright's Act, and the Trademarks Act are the major laws regulating Intellectual Property. Other laws and policies like the Nigerian Data Protection Regulation (NDPR), National Digital Economy Policy and Strategy (NDEPS), Nigeria ICT Innovation and Entrepreneurship Vision (NIIEV), the National Digital Innovation and Entrepreneurship Policy are also relevant in this field.
This brings us to the crux of the matter, which is whether an Artificial Intelligence software can be protected under the Nigerian law. As with all computer programs, Artificial Intelligence (AI) software can be protected under the various laws highlighted above – the Copyrights Act, the Patents and Designs Act and the Trademarks Act. Each of these laws provides a distinct kind of protection to the inventor of the software.
Protection under the Patents and Designs Act.
The inventor of an Artificial intelligence (AI) software can protect this technology in Nigeria under the Patents and Designs Act. The right to this protection is not automatic but only granted upon the fulfillment of certain conditions. Section 1(a) and (b) of the Act provides that for an invention to be patentable, the inventor must show that his invention is new and is a result of inventive activity that can be applied industrially, and that the invention constitutes an improvement upon a patented invention which is also new, results from inventive capacity and is capable of inventive application. Therefore, if such invention is an improvement on an already patented invention, so long as it is also new and results from inventive activity and one which can be applied industrially, it is also patentable.3 Inventive activity simply denotes that the invention is unique and not so common. Industrial application on the other hand simply suggests that the invention must not be one that is theoretical but one that can be applied practically in the form of a product or service. An artificial intelligence software can therefore be protected by its inventor under the Patent and Designs Act in Nigeria so long as the software complies with these requirements.
An application for patent is filed at the Patents and Designs Registry. The application is to include the applicant's name, address, a description of the invention with any suitable plans and drawings, and claim(s) to the invention. The application is also to be accompanied with the payment of the prescribed fees.4 Once the application is submitted, same is examined by the registrar to ensure that it satisfies the requirements of the Act. If the Registrar is satisfied with the examination, the patent is granted. Acquisition of the patent confers on the inventor the right to preclude others from making, importing, selling or using the product, or stocking it for the purpose of sale or use for a period of 20 years5, subject to the payment of annual fees.' >Protection under the Copyrights Act.
An inventor of an Artificial intelligence (AI) software can also protect his invention by obtaining a copyright in respect of his invention under the Copyright Act. A Computer software, specifically the program code, can be protected under Section 1 (1) (a) of the Copyrights Act as a literary work. 6 This is possible because the Artificial Intelligence software, just like any other computer program, is a source code which is simply a set of instructions stored in any form that can be interpreted by a computer. Since it can be in written form (document), same can therefore be registered under the Copyrights Act as a literary work. Owning copyright in an invention will give the inventor the exclusive rights to the reproduction, publication and distribution of copies of the work to the public7 throughout the lifetime of the creator and up to 70 years after his death.8 This protection also provides the author of the work with the exclusive right to reproduce the source code, generate derivative works from the source code as well as distribute, perform or display the copyrighted work publicly.
It must be pointed out that while a copyright may be registered with the Nigerian Copyright Commission (NCC), however, such registration is not a prerequisite for a work's copyright to be protected. This is because unlike patent protection, copyright protection will automatically exist the moment the work is created. This position was established by Article 3 of the Berne's Convention, 1886 and applies to all countries that are signatories to the Convention. The Berne's Convention is an International Convention which protects creators and innovators of works and equips them with the right to dictate how their works are being handled by other parties. Nigeria is a signatory to this Convention and there exists about 179 other states that are parties to the Berne Convention in total. 9 The Convention requires all countries that are its signatories to recognize the copyright works from other countries to the Convention and treat same as those of its own nationals. The implication of this is that any work created in Nigeria automatically has copyright protection not only in Nigeria but in other countries that are signatories to the Berne Convention.
Although copyright exists automatically when an original work is created, the Nigerian Copyright Commission (NCC) requires that such work be voluntarily registered with it so as to notify it of the date of creation of the work and other facts stated in the application form. This is to aid the NCC in updating the database of the Nigerian Copyright Commission.10 Such application can be made directly to the Nigerian Copyright Commission (NCC) either physically or through the Nigerian Copyright e-Registration System (NCeRS) which is an online platform for registration of works eligible for copyright protection. For physical submission, such application can be submitted at any office of the NCC nationwide accompanied by two (2) copies of the work, and evidence of payment of the prescribed fee.
Copyright protection applies strictly to the form in which the work is embodied.11 This is unlike Patent Protection which seeks to protect the ideas, systems and methods of operation of the invention, regardless of the form in which it is illustrated.
Protection under the Trademark's Act
Another protection available to an inventor of Artificial intelligence (AI) Software in Nigeria is through the registration of the software's distinct mark under the Trademark's Act, 200412. Trademarks are simply any sign, word, logo, icon or phrase used to identify or distinguish a product or service. Most software or programs usually have a unique mark or logo that can be used to reference it. For example, IBM WATSON is an Artificial intelligence (AI) software that has a registered trademark owned by International Business Machines Corporation (IBM). This protection under trademark will prevent third parties from imitating the inventor's business by offering similar services under a mark which is the same as, or similar to the inventor's chosen mark.
Trademarks are registered in classes and the classification system used in Nigeria is the Nice Classification. This classification system originated from the Nice Agreement of 1957 which is an International Classification of Goods and Services for countries globally to ensure uniformity in the registration of trademarks. Under this classification, Artificial intelligence software can be registered under class 42 which covers marks that relate to scientific and technological services and designs. To register a trademark, the first step is to conduct a search to ensure that the proposed mark does not conflict with an existing one. The basic requirements for the application process are the document containing the proposed mark or logo, Applicant's name, contact details and a valid Power of Attorney authorizing an agent (lawyer/accredited trademark agent) to conduct such registration. Once the Registry approves the registration of the mark, and acceptance letter is issued to the applicant. After this, the notice of the application is the published in the trademark journal. This is to give the opportunity to an interested or affected person to oppose to this registration.13 If after two months there is no opposition to the application, a certificate of registration will then be issued by the registry to the applicant. 14
A trademark registered in Nigeria is valid for a term of seven years and upon expiration may be renewed perpetually for a subsequent period of 14 years from time to time. However, this protection only covers works in Nigeria.15 Trademarks however do not protect the technology, system, ideas, functionality or methods of operation of the invention, rather, it protects the symbols or names used to distinguish a product in the marketplace.
Protection as a Trade Secret
Artificial intelligence (AI) software can also be protected as a trade secret in Nigeria. A trade secret refers to information which an individual or company has access to and at the same time inaccessible to other individuals, businesses or corporate organizations. The utilization of trade secrets in businesses gives the individual or company an edge over its competitors. Trade secrets act as a key component of Intellectual Property portfolios by helping businesses protect their secret formulas, know-how and other key information that gives them a competitive edge.16 The important features of a computer program, such as the ideas and code, can be protected as trade secrets. Trade Secrets do not require any registration for this protection to avail the inventor. This protection however, only lasts as long as the ideas remain a secret, that is, if for any reason the information is made public by the inventor or otherwise, the protection can no longer avail the inventor.
From the above, it can be observed that the Nigerian law currently makes provisions for the basic protection of the rights of an inventor of Artificial intelligence (AI) in Nigeria. There are in fact several intellectual property rights protections for AI inventions created in Nigeria, each of which affords a different type of legal protection. While Patents and trade secrets can be used to protect the technology itself, copyrights protect the rights to market the software while trademark simply protects the distinct mark.
Due to the dynamic nature of AI software, there exists several economic benefits that are available to inventors of such technology and to countries that have invested in same. For a country to fully maximize the economic benefits of such innovations, such country must put in place the legal framework to ensure that there is further development in this field. Countries all over the world are delving into this field and it is noteworthy that Nigeria is also taking steps to take advantage of this situation and establish itself as a digital economy. Recently, a National Center for Artificial Intelligence and Robotics was established in Nigeria in line with the eight pillars of the National Digital Economy Policy and Strategy (NDEPS) of the Federal Government of Nigeria. It is expected that this in turn would encourage aspiring inventors and creators to participate fully in inventive activities that will translate into a momentous global economic impact.
Conclusion:
In conclusion, it is no longer news that Artificial intelligence has come to stay and will definitely determine the growth rate of most economies in the years to come. The scope of Artificial intelligence is so wide and it will constantly change the world. Although evolving gradually, yet, surely towards a wider range of economic growth. It is therefore imperative for talented individuals in Nigeria to bring in new discoveries while the government in turn provides the necessary protection for such discoveries.
Footnotes
1
https://newsroom.accenture.com/subjects/technology/artificial-intelligence-poised-to-double-annualeconomic-growth-rate-
in-12-developed-economies-and-boost-labor-productivity-by-up-to-40-percent-by-2035-according-to-new-research-by-accenture.htm
accessed 10th Decemeber, 2021
2 Nigeria gets Artificial Intelligence, Robotics Centre – Abiodun Borisade accessed December 15 2021
3 Section 1(1) of the Patents and Designs Act, Chapter 344, Laws of the Federation of Nigeria 1990
4 Section 3 of the Patents and Designs Act, Chapter 344, Laws of the Federation of Nigeria 1990
5 Section 7 of the Patents and Designs Act, Chapter 344, Laws of the Federation of Nigeria 1990
6 Section 51 of the Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004
7 Section 6 (a) Copyrights Act LFN 2004
8 First Schedule Copyrights Act LFN 2004
9
https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwit6PTZ9Ib0AhXB8OAKHa57BdEQFnoECAwQA
w&url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FBerne_Convention&usg=AOvVaw0f9WO3Q73eJ5TgvpKVkSLp
accessed 23rd November, 2021
10 http://www.eregistration.copyright.gov.ng/ncc/faq accessed 1st March, 2022
11 Johnson Controls v. Phoenix Control Systems, 886 F.2d 1173 (9th Cir. 1989) United States Court of Appeals where the court held that the sequence and structure in which a computer program is organized may be eligible for copyright protection so far it qualifies as an expression of an idea, rather than an idea itself.
12 CAP T13, LFN 2004
13 Section 19 & 20 Trademarks Act CAP T13, LFN 2004
14 Section 22 Trademarks Act CAP T13, LFN 2004
15 Section 23 Trademarks Act CAP T13, LFN 2004
16 https://www.wipo.int/tradesecrets/en/ accessed on 22nd November 2021
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