Nigeria: Securing International Intellectual Property Rights Protection Over Nigerian Information And Communication Technology Products - Part 1

Last Updated: 16 May 2016
Article by O. Marx Ikongbeh

PART 1 "Quick Overview of Intellectual Property Rights in Nigeria"

  1. Introduction

With the current emphasis on non-oil exports in Nigeria, another frontier for enhanced foreign exchange earnings for Nigeria could easily be the appropriate exploitation of intellectual assets in the Information and Communication Technology sector.

However this exploitation requires a robust Intellectual Property Rights protection strategy both at governmental and business levels. Zeroing in on the business level strategy, our question is:

How can proprietors (owners, developers, producers etc), of Nigerian Information and Communication Technology products secure International Intellectual Property Rights protection for their exports?

This article would reveal several International Intellectual Property Rights protection systems that could secure Nigerian Information and Communication Technology products from Intellectual Property Rights infringement as it crosses the borders.

Before we conclude also, we shall x-ray the dangers of not securing the appropriate Intellectual Property Rights protection for Information and Communication Technology products. The unfortunate domain name dispute between the Nigerian e-commerce giants, Konga and Jumia would be used as a case in point. It presents an excellent example and highlights the need for comprehensive International Intellectual Property Rights Protection for Nigerian Information and Communication Technology firms.

  1. Key Deliverables

We shall presently look at the following in this part of the article:

  1. Brief introduction (what is Intellectual Property Rights anyway?)
  2. Types of Intellectual Property Rights (Copyrights, Trademark, Patents and Designs).
  3. The relationship between Intellectual Property Rights and Information and Communication Technology products.

In Part 2 [International Intellectual Property Rights Protection Mechanisms] we shall consider:

  1. The territoriality of Intellectual Property Rights and the rationale for international protection
  2. The different International Intellectual Property Rights systems and Organizations.
  3. Emerging areas of International Intellectual Property Rights protection (domain name protection etc)
  4. Summary of how and why every Nigerian Information and Communication Technology firm should key into international Intellectual Property Rights protection.

Without doubt if this age is to be referred to with a single decimal such as the stone age, the iron age etc, it would undoubtedly be called the Information and Communication Technology age.

  1. What is Intellectual Property Rights anyway? (Brief Introduction)

As opposed to physical/tangible property (e.g. cars, houses, stock of goods etc) the law recognizes that property right also exists in intangible form, these rights arise as a result of the intellectual efforts that an individual (includes a company) has applied and the unique products that are birthed from such exertion.

The law recognizes that it will be unfair to allow any other person to derive benefits from such products without adequate rewards to the originator. Broad examples of such property include; reputation, goodwill, creative ideas, "look and feel", the right to exploit new solutions to existing challenges etc.

We shall give precedence to the Intellectual Property Rights that are relevant to the Nigerian Information and Communication Technology sector.

  1. What are the types of Intellectual Property Right relevant to Nigerian Information and Communication Technology Firms?

Historically, Intellectual Property Rights is treated under four principal categories, with each having a separate body of laws regulating it. These include:

  1. Copyright

Copyright is concerned with protecting creative works of the human intellect. It relates to literary and artistic works. Bear in mind that "literary or artistic works" is not limited to literature and music; it also includes such technical expressions of human creativity as computer software design, electronic databases, multi-media productions, maintenance manuals, architectural drawings etc.

What is important is that Copyright protects "Original" "Works" that have been "Fixed" in some form. Original means that it has not been copied from another Work. Work means that it has gone beyond a mere idea and some effort has been expended to develop the idea into a concrete end product. Fixed means that it has been recorded in some permanent form such as being written down or recorded through any device that can reproduce it at a later time for human appreciation.

The protection is not perpetual; it usually lasts for a number of years that is computed from the death of the author depending on the law of the particular country. The duration by the Nigerian Copyrights Act 1988 is 70 years but 50 years in certain cases including where the author is an Information and Communication Technology firm. Firms must thus take advice on how to structure copyright authorship.

Copyright is usually notified by an encircled "C" sign ©. While this is not necessarily a requirement of law in Nigeria, it serves as a warning to the public on the author's rights. Registration is not a requirement for protection but "depositing" a copy of the work with the Nigerian Copyright Commission would be a sensible way to prove authorship and fixation (i.e. publication).

  1. Trademark

Trademark refers to the protection of the unique identification symbols used to distinguish the goods of one organization from that of others. It could consist of words, logos, designs, letters, numerals, slogans, devices, symbols etc or a combination of any of these.

It is called a Trademark when it protects goods e.g. Zinox (a Nigerian brand of personal computers) and a Service mark when it protects services e.g. Paga (a Nigerian mobile money solution).

To be registrable, a Trademark must be "Distinctive" and it must not be "Deceptive". Distinctive means that the Trademark does not merely describe the product. (e.g. "Glo" while it may be distinctive for a telecoms service operator would be descriptive for a light bulb manufacturer). Deceptive means it tends to suggest a quality it doesn't possess.

Trademarks can have a perpetual duration but upon registration are valid for 7 years in the first instance and subject to renewal at 14 years intervals thereafter. Trademark also forms the basis of domain name protection as we shall see later on.

Trademarks before registration may be notified with a TM sign inserted as a superscript on the top right side of the mark TM or an SM in the case of Service marks SM. But both are signified with an encircled "R" in superscript ® when it has been duly registered. This is not necessarily a requirement of law in Nigeria.

Registration is not a requirement for protection as common law action of passing off and "well-known" marks receive limited protection. However, the right to bring a simplified action for "infringement" under the Trademark Act 1965 is only available to registered Marks. It would be unwise for an Information and Communication Technology firm to rely on unregistered marks considering the ease of infringement possible in the cyber-world.

  1. Patents

A Patent is a monopoly over the exploitation of an invention given by the government to the inventor in return for the inventor disclosing the full working of his invention. An invention can be defined as a new solution to a technical problem. An invention could be an entirely new solution (e.g. table top internet router: Wifi) or an improvement of an existing solution (e.g. carry-along pocket-sized internet router: Mifi).

To be Patentable, the invention must be "Novel", possess an "Inventive Step" and be capable of "Industrial Application". Novel simply means it must be new. Inventive step means that it goes beyond the general knowledge in that field; it must be "non-obvious" to an average practitioner of that field. Industrial Application means that it must be capable of practical use; it produces a defined end that is useful.

Patents are granted for a fixed number of years (20 years by the Patents and Designs Act 1970) and are subject to annual renewal within the period of validity. A grave danger with Patents is that once the invention is disclosed before registration, the right to Patent would be lost forever. So Patents must be registered even before trial versions are released to the public.

The words "Patent Pending" may be inserted to notify that the product is subject of a patent application that is still in progress. This is not expressly required by Nigerian law since Patents do not undergo substantive examination.

  1. Industrial Designs

An Industrial Design (also called Design Patent) protects the ornamental or aesthetic aspects of a useful article. It protects the unique "look and feel" of the product. It is different from a trademark because it doesn't need to be distinctive. It could be 2 or 3 dimensional e.g. packaging, pattern or shape.

To be registrable, it must be "new" or "original". It must "appeal to the eye" meaning that it has an attracting and not just a functional effect. It must also be capable of reproduction by industrial means.

Industrial Design is granted for a total of 15 years renewable in 5 year intervals under the Patents and Designs Act 1970. Under certain conditions, the subject of an industrial design can also be protected by Copyright.

Practical Illustration

It must be borne in mind that these categories of Intellectual Property Rights discussed above are not exclusive; they are merely the most formally recognized protection mechanisms. Other forms of protection include; passing off (protection for unregistered trademarks); trade secrets (protection by the producer who creates a wall of secrecy around his invention; you must have heard about the famously guarded Coca-Cola secret recipe) and other protection measures such as the law of unfair competition.

We must also note that one product can be covered by the different categories of Intellectual Property Rights. Take a tablet device. Its instruction manuals and the algorithm that runs its software would be covered by Copyright, its logo and distinctive name e.g "T-Pad" is Trademarked, its shatter-proof plexiglass screen and unique water resistant features is Patented and its ergo-dynamic curved shape and brightly coloured stripe pattern back case is registered as an Industrial Design and the secret chemical formula for the liquid wipe that restores the screen from scratches is locked up in a safe deposit box. – That would be an effective Intellectual Property Rights protection strategy!

  1. Intellectual Property Right and Information and Communication Technology products:

From what we have examined thus far, it is logical to conclude that Information and Communication Technology products which largely are intangible and highly susceptible to hacking, piracy, "free-surfing" and counterfeiting require a comprehensive Intellectual Property Rights protection strategy.

Most Information and Communication Technology products are distributed seamlessly over the internet, except a robust Intellectual Property Rights protection strategy is developed and enforced, anybody could take an Information and Communication Technology product reverse-engineer it and offer it for sale to unsuspecting buyers who cannot tell the source of the product, since they don't have to visit a brick and mortar store for purchase.

For the Nigerian Information and Communication Technology firm seeking to cross the border, the threat to their Intellectual Property Rights takes on a hydra headed dimension. Thankfully Part 2 of this article [International Intellectual Property Rights Protection Mechanisms] presents an effective remedy.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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