NOTAP, in the exercise of its mandate to ensure that TTAs are not inimical to the economic and technological growth of Nigeria, has put in place certain requirements which must be met before these TTAs which will invariably use foreign trademarks, patented inventions, technical expertise, engineering/machinery etc. are registered1.
NOTAP may refuse registration of a TTA on certain grounds. Some of these grounds are2:
- Where the technology is readily available in Nigeria.
- Where the price of the technology is not commensurate with market prices.
- Where the agreement contains a provision, which permits the supplier to regulate or intervene directly in its execution, which NOTAP considers unnecessary.
- Where the TTA creates an onerous or gratuitous obligation on the transferee of the technology to assign to the transferor or any other person designated by the transferor, patents, trademarks, technical information, innovations or improvements obtained by such transferee without the assistance of the transferor or such person.
- Where the TTA obligates the transferee to acquire equipment tools, parts or raw materials exclusively from the transferor or any other person or given source.
- Where the transferee's products or services is prohibited or unreasonably restricted from being exported or where there is an obligation on such transferee to sell the products manufactured by it exclusively to the supplier of the technology concerned or any other person or source designated by the transferor.
- Where the transferee is required to pay in full for technology which remains unexploited by him.
Where a TTA cannot be successfully registered and Certificate of Registration issued, the Federal Ministry of Finance, the Central Bank of Nigeria and any licensed bank in Nigeria may withhold authorization of any payments due under the agreement3. Other laws which regulate technology transfer in Nigeria are:
- The Federal Competition and Consumer Protection Act: This Act requires all technology transferred into Nigeria to meet a particular standard as set by the Federal Competition and Consumer Protection Commission (FCCPC).
- Trademarks Act4: An assignment of a right to a trademark or patent is required to be registered with the Trademarks, Patents and Designs Registry.
- Copyrights Act5: It is not mandatory for copyrights in a work to be registered however, copyrights may be registered at the Copyrights Commission as it serves as a public source for verification of an author's work.
- Nigeria Data Protection Act and the National Information Technology Development Act6: These Acts provide the guidelines for the protection of data. Under certain technology transfers, personal data may be exchanged or made available. Parties would be bound by the provisions of these Acts to ensure that such data is secured adequately.
- Cybercrimes Act7: This legislation criminalizes certain acts carried out on the internet. One of such acts is the interception of a computer system without authorization.
- Labor Act8: This legislation regulates the relationship between employers and employees in Nigeria. Certain types of technology transfers such as technical and management service agreements, may necessitate the need for the transfer of labor. In such situations, it is necessary to keep abreast with the provisions of the law.
Other legal issues which may arise under technology transfer are the protection of trade secrets or confidential information which is disclosed or becomes known to a party in the course of technology transfer. Such issues can be adequately addressed under confidentiality agreements or non- disclosure agreements whereby a party or parties are restricted from divulging or utilizing certain information obtained during the course of such technology transfer for a specified period.
Conclusion
While the role of technology transfer in the economic development of Nigeria cannot be downplayed, it is worthy to note that technology transfers in Nigeria can be better maximized with emergence of Nigerian brands pursuant to such transfers rather than merely serving as extensions or local branches for foreign brands. This can be achieved by providing an economically enabling environment for businesses to thrive in view of the fact that economic challenges have been major setbacks to the viability of certain local brands that would have been established pursuant to TTAs in the past.
Footnotes
1. Section 4 of the NOTAP Act, Cap N62 LFN 2004
2. Section 6 (2) of the NOTAP Act, Cap, N62 LFN 2004
3. Section 7 of the NOTAP Act, Cap, N62 LFN 2004
4. Trademarks Act Cap T13 LFN 2004.
5. Copyright Act 2022
6. Nigeria Data Protection Act 2023 and the National Information Technology Development Act 2007
7. Cybercrimes (Prohibition, Prevention, etc.) Act 2015
8. Labour Act Cap L1 LFN 2004
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.
