‘Nigeria is in Urgent Need of an Intellectual Property Policy’

It is on record that Nigeria has the third largest and fastest growing movie industry in the world, after Hollywood and Bollywood. Regrettably, Nigerian movies and musical works are the most pirated in the world, making the owners of these intellectual pr

It was a bold step when you migrated from teaching law to active legal practice and now back to teaching. What has been your experience, looking at the law from both sides? Teaching law is one of the best ways of learning law. As I taught from 1989 to 1991 as a visiting guest lecturer at the Nigerian Law School and as a tutor and guest lecturer at Queen Mary, University of London and University College London in the 1990s. As a teacher, I interact with my class to ensure that all students understand one precept before I proceed to the next. By explaining to those who are not fast to grasp lessons, I have developed skills that make it easier to communicate with judges, clients, et al. Writing notes which have evolved into books I am about to publish make the writing of opinions and the like easier. It is of great advantage to law students if their teachers are involved in some form of practice. In summary, teaching has made me a better lawyer.

Intellectual Property lawyers with specific expertise in the film and music industries are very few. With a huge and fast growing entertainment sector in Nigeria. As President of the Intellectual Property Law Association of Nigeria, how can your association address the challenges that exist?

IPLAN has been at the fore of capacity building for IP administrators, lawyers, judges, et al. It must, however, be admitted that the demand for capacity building far outstrips the supply. IPLAN is working out programmes with Babcock University to fill this gap. We will also experiment with a law clinic that seeks to offer some pro bono legal services to the entertainment industry and SMEs that need intellectual property services.

IPLAN will soon have a new executive. I am confident that they will ensure that the industry has more competent advisors, enforcers, administrators and adjudicators.

You were a member of the 1988 Copyright Drafting Law Committee that prepared the Nigerian Copyright Act 1988, the Act is outdated as it does not make provisions for the protection of Intellectual Property generated from digital media. What are your suggestions on reforming the Act?

Nigeria’s Copyright Act was passed in 1988 prior to the advent of today’s internet and communication technologies which have revolutionised how we live. It is therefore challenging to stretch the Copyright Act to accommodate these new challenges. Internationally, the World Intellectual Property Organisation treaties were introduced in the 1990s with Nigeria playing a significant role under the leadership of Moses Ekpo, the then DG of the NCC. However, unlike other countries that became party to the treaties, Nigeria has not amended her laws to bring the treaties into force in Nigeria. When this is done, it will make the prosecution and adjudication of copyright cases pertaining to the digital era easier.

Specifically, I have worked with Nollywood to prepare a manifesto that calls for the following amendments introducing a clause that: Curbs online piracy of films. Permits the first publication of a film in a treaty country as a qualifying condition for copyright protection under section 5 of the Act to accommodate the international nature of film today.

Specifically grants film owners the exclusive right to “the broadcast of a film” as this is not specifically mentioned in section 6(1)(c) of the Act.

Grants the film industry a separate right to control “the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them”

The criminal penalties including the fines and terms of imprisonment must be increased.

Makes ATTEMPT, AIDDING & ABETTING, copyright offences in themselves as offences.

Makes “the making, selling, using or stocking devices that circumvent anti-copying technology”

Makes “the making, using or stocking or selling of devices that can be used to counteract technology inserted in works to detect the number of copies made or the source of production” attract civil and criminal liability.

We call for a clause that enables courts to seize the assets of companies whose primary business is piracy.

Enables copyright holders in films to stop the importation or exportation of infringing films at Nigerian borders as section 44 of the present Act does not deal with films.

Enables internet and telecommunication service providers (ISPs) to remove or disable access to infringing content or links for ISPs to have rights to deal with recalcitrant offenders on their sites and platforms.

However, I must stress that where lawyers are clever and ingenious, they can successfully stop most acts of infringements in this digital age using the Copyright Act as it is today. Today’s intellectual property laws have been used to prevent digital IP theft.

Millions of trademarks have become commonplace, from visual logos to sound trademarks. The next frontier in Trademark protection appears to be bold and as farfetched as it sounds- ‘Smell Patenting’. The economic value of a possible ‘Smell’ Patent cannot be overstated, we only need to reference the multibillion dollar perfume industry to put that in perspective. What cutting-edge developments do you see in the Nigerian IP industry?

Several Nigerian companies in the brewery and cosmetics industries spent millions of dollars to introduce new distinctive bottle or container shapes to distinguish themselves in the market. Such shapes are supposed to be registrable as trademarks by virtue of Nigeria’s membership of the World Trade Organisation, yet our laws have not been amended to accommodate this. The best option for these industries is to rely on industrial designs that offer protection for three terms of 5 years each. Whilst industrial designs protection appears to be viable at least for 15 years, trademarks can be renewed “forever” and this may justify what trademarks offer a better solution for these industries. After 15 years, competitors can copy the shapes protected by designs lawfully, yet the shapes may be the unique selling point for the company.

Similarly, sounds and smells are registrable as trade marks in many parts of the world but there are still challenges in Nigeria as our Trade Marks Act of 1965 needs amendments to meet the needs of commerce. Most telephone handsets have distinctive sounds that distinguish their products from those of others. Such sounds function in the same manner as other trademarks, but there is no clear indication in our law that they are registrable as trademarks.

With technology greatly surpassing the existing framework for the protection of Trademarks and the dearth of legislation for the same purpose, how can Regulators such as the Nigerian Copyright Commission (NCC), the Registry of Trade Marks and the Registry of Patents and Designs (Registries) begin to develop a flexible and adaptive framework for tomorrow’s Nigerian IP?

The NCC and the Registries have made some attempts to fill the gap opened by the failure of the National Assembly to pass amendments to Nigeria’s Copyright Act, 1988, the Trade Marks Act, 1965 and the Patents and Designs Act, 1970. I will mention three of such flexible frameworks.

First, the NCC and the Registries have introduced online registration and notification although these are fraught with difficulties I will refer to later. Second, the NCC’s Licensing Panel is an Alternative Dispute Resolution body