UNDERSTANDING INTELLECTUAL PROPERTY (IP) AND ENFORCEMENT OF IP LAWS IN SCIENCE1

1. Introduction

Innovations created through scientific research and methods are essential intangible assets that have great value to scientists through advanced knowledge and the creation of new products for the development of the society. Such assets require adequate protection and laws regulating fair use by the public. Intellectual Property Law is an area of law that regulates the legal rights associated with creative and innovative activities for commercial profit and business goodwill. It gives statutory protection to the moral and economic rights of inventors and creators on their innovation and creation and preserves the rights of the public to access those inventions and manufactures.2

Intellectual property Law (IP) plays a crucial role in the field of science by ensuring the protection of innovations and the dissemination of scientific knowledge and discoveries. This article highlights the intersection of IP and Science and the enforcement of IP laws in the field of Science.

2. The Concept of Intellectual Property Law and Science

2.1 Intellectual Property

Intellectual property law governs the rights and protection granted to creators and innovators for their intellectual creations. It is the legal framework that promotes innovation and creativity by conferring economic incentives and protection on inventors and creators. The objective of Intellectual Property Law is to protect the interests of private owners of their intellectual creations by recognizing their proprietary rights in their works and to promote public interest and utility by granting access to a large variety of creations and inventions in various sectors that are relevant to societal development.3

According to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement (an international legal agreement created by member nations of the World Trade Organization), the areas of intellectual property include copyright and related rights, trademarks, patents including the protection of new varieties of plants, trade secrets, geographical indications and industrial designs.4 These areas are regulated by laws that stipulate the works which are eligible to be protected, the minimum standards of protection, the rights to be conferred and permissible exceptions to the rights, and the minimum duration of protection.

2.2 Science

Science is the study of natural events by identification, observation, description, experimental inquiry, and theoretical justification.5 It is the pursuit and application of knowledge and understanding of natural and social activity through a scientific methodology that involves critical analysis of experiments and evidence to establish general rules or conclusions.6 The branches of science include Biology, Physics, Chemistry, Natural Science, Mathematics, and Social Sciences amongst others.

3. The Interface between Intellectual Property and Science

3.1 Patents

An important area of IP that plays an essential role in the branches of science is patent. Patents are a form of IP protection which confers legal rights on inventors of new and useful products and processes which exclude others from exploiting the invention commercially.7 A patent grant is issued by the appropriate authority8 to inventors following an application to fully protect and exploit the commercial value of the inventions and ensure fair use of the inventions by the public.9 The outcome of inventive ideas through a scientific methodology which is essential to human existence and development requires legal protection and recognition. Scientific research and experiments that result in the creation of new drugs, devices and equipment, medical and scientific processes and procedures to meet the evolving health challenges across the globe, to protect the environment, to aid economic activities and create wealth and promote well-being are all worthy of adequate legal protection and recognition. Patent protection prevents others from taking undue advantage of the invention without authorization from the inventor. It is an avenue for an inventor of new and useful products to benefit from intellectual and scientific effort and research on the resources and time invested which is free from infringers and imitators.10 It is important to note that not all inventions can be protected by patent. An invention is patentable if it is new, results from inventive activity, and is capable of industrial application, or if it constitutes an improvement upon a patentable invention and also is new, results from inventive activity, and is capable of industrial application.11 An inventor can apply for the grant of a patent once the requirements are attained.

3.2 Plant Variety Protection

Plant breeding which involves agricultural innovation is the science of maximizing plants' genetic traits to produce desirable outcomes. It is an essential method that increases crop production, and grant farmers access to genetically improved cultivation for wide yield, and better resistance to biotic and abiotic stresses to meet consumers' demand and expectation.12 Plant Variety Protection (PVP) Act13 is a legislation designed to regulate and protect plant breeders rights. Plant variety protection is a type of intellectual property protection that grant rights to plant breeders over their methods and planting materials. It promotes increased staple crop productivity for farmers and boosts investment in plant breeding and crop variety and protects new varieties of plants.14 By implementation of the PVP Act, intellectual property right is conferred on plant breeders over a new plant variety which includes the right to commercialize seeds and propagation material on the variety exclusively.15 PVP Act only applies to the protection of a new and distinct plant variety. A plant variety must fulfill all the requirements provided in the Act16 before the rights and protection are granted to the plant breeder.

3.3 Copyright

Copyright is a type of IP that protects original works of authorship put in tangible form and certain works designated as eligible under the law.17 The law provides categories of works that are eligible for copyright protection.18 Originality and fixation are the specific requirements such works must satisfy for protection under the Act.19 The creation of the work must result from the author's intellectual creation or expenditure of independent skill or labour and such works must be expressed in a definite medium. Eligible works are automatically conferred with copyright protection as registration is not required.

Discoveries made through scientific methodology by researchers can be fixed in a definite medium through publication. Researchers can assemble their ideas and discoveries in a tangible form through textbooks, journals, presentation papers, and recordings which can be accessible to the public. Such publication is protected under copyright and the author is granted an exclusive right to control certain acts in relation to the works. Such acts include reproducing the work in any material form, publishing, performing, translating, adapting, distributing, or communicating the work to the public.20 With proper attribution to the author of the work, the public can use the copyrighted material for nonprofit uses like further research or education without diminishing the market value of the works.21

3.4 Trade Secret

Confidential information and formulae constituting essential parts of the creation of new products which are commercially valuable and known to limited persons are protected by trade secret which is a type of intellectual property.22 Ideas, knowledge, and capsules of information that provide the owner a competitive advantage in an industry on the creation of products can be termed as trade secret. Trade secret protection confers on owners the right to protect the information through appropriate protective measures and to prevent unlawful disclosure of the information to the public in a manner contrary to honest commercial practice.

The creation of new products through scientific methods that involve extensive research, experiments, skills, and time expended on the products in laboratories and factories by scientists which are classified as confidential information and formulas can be protected under trade secret once it is proven that such information and formulas have actual and potential commercial value in the market space and reasonable steps have been taken to protect the information as a secret and restricted from unlawful disclosure.

3.5 Trademark

Logos, marks, signs and symbols used in relation to goods and services for the identification of the source and ownership of such goods and services are protected under trademark.23 With the use of trademarks, brands create unique identities for their goods and services. In addition, trademarks distinguish similar goods and services of one competitor from another competitor.

Laboratory research centers, Hospitals, and pharmaceutical organizations utilize marks and logos to distinguish similar goods and services in the market space. With the use of trademarks, consumers are assured of the quality of goods and services purchased.24 Hospitals and pharmaceutical organizations such as Johns Hopkins Hospital,25 Fidson Healthcare Plc.,26 Emzor Pharmaceutical Industry Limited27 employ trademarks to identify their goods and services in the market space.

3.6 Traditional Knowledge

The knowledge, know-how, skills, and practices developed by indigenous communities which have been sustained and shared between generations forming part of the spiritual and cultural identity of that community can be referred to as Traditional knowledge. Traditional knowledge includes agricultural, scientific, technical, ecological, and medicinal knowledge as well as biodiversity-related knowledge.28

The combination of herbs, recipes, and medicinal knowledge used in farming, agriculture, and other sectors which are developed in a traditional context to address the needs of the community are examples of traditional knowledge. Traditional knowledge and ancient practices require preservation and protection in order to prevent extinction and unauthorized commercial misuse of the knowledge base. Traditional knowledge in intellectual property rights can be preserved through positive protection which is the act of conferring on the traditional knowledge holder the right to take necessary actions and to seek remedies against misuse of the knowledge base with the enactment of specific laws. A defensive mechanism is also a form of intellectual property protection. It refers to the steps traditional knowledge holders take to prevent the acquisition of their Intellectual Property Rights.29 Traditional Cultural Expressions (TCEs) could capture handicrafts, artistic designs, and architectural forms in addition to art, dance, music, symbols, performances, and cultural ceremonies.

3.7 Enforcement of IP Laws.

Intellectual property rights are regulated by various specific laws and administrative mechanisms. The laws governing the enforcement of intellectual property rights and protections are codified in various statutes.

Patents and Designs Act30 is the legislation that governs the rights, requirements, and procedures of a patent application on an invention in Nigeria. The law stipulates the type of inventions that can be protected, the requirements,31 the rights conferred on patentable inventions,32 and the remedies granted to a patentee whose rights have been infringed upon.33

The main statute that regulates copyright protection in Nigeria is the Copyright Act.34 The Act provides the categories of works eligible for protection, legal requirements, and infringement procedures for the enforcement of copyright and related rights.

Plant Variety Protection Act is a recent law that was enacted to protect plant varieties, encourage investment in plant breeding and crop variety development, and establishes a Plant Variety Protection Office for the promotion of increased staple crop productivity for smallholder farmers in Nigeria.

Trade Marks Act regulates the registration of trademarks, the rights granted to proprietors of the registered marks, and the process of enforcing such rights. Also, the Act recognises unregistered trademarks through the constant use and popularity of the trademark in the market. The proprietor of such trademark is limited to the common law action of passing off to enforce his ownership of the trademark.35

In Nigeria, trade secrets are regulated by the provisions of the Common Law, Law of Torts, and Contract Law as there is no independent body of law that governs the protection of trade secrets. The owner of a trade secret can institute an action under such laws to enforce his rights in the event of an unlawful disclosure or misappropriation.

By the provisions of the Constitution of the Federal Republic of Nigeria36 and the legislations enacted on various types of intellectual property rights,37 the Federal High Court is conferred with jurisdiction over the enforcement of IP Rights in Nigeria. The court is granted the exclusive jurisdiction to hear and determine causes and matters, whether criminal or civil, relating to intellectual property rights. The owner and other relevant parties can institute an action at the Federal High Court for the enforcement of their intellectual property rights on their creations and innovations. The remedies granted by the court in enforcing the rights include an order for inspection and seizure, an order of injunction, an award of damages, an account of profits, and delivery up for destruction of the offending goods and associated implements.

Also, parties to an intellectual property dispute can employ Alternative Dispute Resolution (ADR) as an enforcement mechanism to enforce their rights. The ADR mechanisms include mediation, conciliation, arbitration, and expert determination. Notably, ADR as an alternative to litigation although not expressly provided in the various legislations enacted for intellectual rights has been proven to be veritable means of resolving disputes outside the court procedures with the assistance of an intermediary. A qualified expert intermediary can be consulted in resolving patent disputes due to the highly technical nature of this area of intellectual property. For the maintenance of parties' relationship, confidentiality, time, and cost efficiency, parties should utilize ADR mechanisms in enforcing their intellectual property rights as there is a better likelihood of a consensual outcome as against litigation.38 The legal framework of ADR is provided in the Arbitration and Conciliation Act.39

3.8 Works exempted from Intellectual Property Protection

In enforcing IP rights on works and inventions, scientists and inventors should be aware that certain works and inventions are not protected under IP laws. An invention that satisfies the eligibility criteria for patent grants can be exempted from IP protection if the nature of such invention falls under the categories of inventions excluded from patentability under the appropriate legislation. In Nigeria, the Patents and Designs Act excludes certain inventions such as biological processes or natural products, inventions that are contrary to public order or morality, and principles and discoveries of a scientific nature.40 A patent grant cannot be obtained for such works.

Furthermore, the Copyright Act stipulates certain works that are not eligible for copyright protection.41 Such works include discoveries, formats, processes, procedures, laws of nature methods of operations, ideas and concepts, official texts of a legislative or administrative nature, and official state symbols and insignia. There are certain exceptions provided for the enforcement of copyrighted works. Fair use is a significant exception that serves as a defense to copyright infringement. The copying of copyrighted works for limited and transformative purposes such as to comment on, criticize in the form of a satire, parody or pastiche without permission from the copyrighted owner can be termed as fair use. Certain requirements must be fulfilled before the defense of fair use can be successfully raised as the concept of fair use is applied on a case-by-case basis.42 A compulsory license to produce and publish translations for teaching, scholarship, or research on a copyrighted work43 and a compulsory license to rectify the abuse of dominant markets or to promote public interest are exceptions to copyright infringements.44

Some certain marks and logos cannot be registered as a trademark. Such marks include marks for deceptive or scandalous matters,45 names of chemical substances,46 and identical and resembling trademarks of different registered marks.47 Also, marks that falsely imply official patronage from the government are prohibited from trademark registration.48

4. Conclusion

The objective of intellectual property right is to safeguard innovative products from exploitation and confer rights to creators over their works while granting public access to the works as part of a policy trade-off with the state.

Scientists must be introduced to the concept of intellectual property at the initial stage of their careers as this would assist in the identification of inventions that are eligible for intellectual property protection and procedures to adequately commercialize these inventions to their advantage without depriving the public of the benefits that the inventions offer. The dissemination of scientific knowledge, methods, and research works through publications enables scientists to earn proper recognition and financial benefits from their works while retaining their rights to the work.

Footnotes

1. Maryam Abdulsalam, Associate, Intellectual Property Department, SPA Ajibade & Co. Being the text of a paper presented at the Annual General Lecture of the Intellectual Property Club Olabisi Onabanjo University (IPLC OOU) on 21st June 2023.

2. David Bainbridge, Intellectual Property (6th ed., Essex: Pearson 2007).

3. Adejoke O. Oyewunmi, Nigerian Law of Intellectual Property, University of Lagos Press, 2015 at p. 3.

4. See World Trade Organization website available at https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm accessed on 12th June 2023.

5. Lyndsay T Wilson, "Definition of Science", Explorable.com available at https://explorable.com/definition-of-science accessed on 12th June 2023.

6. See, https://sciencecouncil.org/about-science/our-definition-of-science/ accessed on 12th June 2023.

7. Adejoke O. Oyewunmi, supra, at p. 8.

8. In Nigeria, the Patents and Designs Registry under the Commercial Law Department of Ministry of Industry Trade and Investments issues Patent grants.

9. See WIPO, Intellectual Property Handbook, (2nd Ed, Geneva: WIPO, Publication No 489 (E) 2004) 13.

10. Adejoke O. Oyewunmi, Nigerian Law of Intellectual Property, University of Lagos Press, 2015 at p. 12.

11. Section 1 of Patents and Design Act.

12. Nigerian Economic Summit Group "Plant Variety Protection Act 2021 Fact Sheet" available at file:///C:/Users/Mariam%20Abdusalam/Downloads/Factsheet_1627539725.pdf accessed on 13th June 2023.

13. Plant Variety Protection Act 2021 available at https://www.upov.int/edocs/mdocs/upov/en/c_55/law_of_nigeria.pdf accessed 13th June 2023.

14. Section 1 of PVP Act 2021.

15. Nigerian Economic Summit Group "Plant Variety Protection Act 2021 Fact Sheet" available at file:///C:/Users/Mariam%20Abdusalam/Downloads/Factsheet_1627539725.pdf accessed on 13th June 2023.

16. Section 12 and 13 of PVP Act 2021.

17. Copyright Act 2022 available at https://placng.org/i/wp-content/uploads/2023/04/Copyright-Act-2022.pdf accessed 13th June 2023.

18. Section 1(1) of Copyright Act.

19. Section 1(2) of Copyright Act.

20. Section 6 of Copyright Act.

21. National Library of Medicine On Being a Scientist: A Guide to Responsible Conduct in Research: Third Edition, Intellectual Property available at https://www.ncbi.nlm.nih.gov/books/NBK214554/#:~:text=Intellectual%20property%20is%20a%20legal,private%20gains%20and%20
public%20benefits accessed on 13th June 2023.

22. See, https://www.wipo.int/tradesecrets/en/tradesecrets_faqs.html#:~:text=What%20is%20a%20trade%20secret,limited%20group%20
of%20persons%2C%20and accessed on 13th June 2023.

23. Section 67 of Trade Mark Act.

24. Sandra Eke, "Why you need to protect your business hashtags and catchphrases" https://spaajibade.com/why-you-need-to-protect-your-business-hashtags-and-catchphrases-sandra-eke/ accessed on 17th June 2023.

25. See, https://www.hopkinsmedicine.org/the_johns_hopkins_hospital/ accessed on 7th July 2023.

26. See, https://fidson.com/products/ accessed on 7th July 2023.

27. See, https://www.emzorpharma.com/ accessed on 7th July 2023.

28. See, WIPO "Traditional Knowledge" available at https://www.wipo.int/tk/en/tk/ accessed on 19th June 2023.

29. Intellectual Property Talent Search Examination, "What is Traditional Knowledge and How to protect it?" available at https://iptse.com/what-is-traditional-knowledge-and-how-to-protect-it/#:~:text=Traditional%20knowledge%20is%20the%20knowledge,cultural%20identity%20of%20that%20community. Accessed on 19th June 2023.

30. Cap P2, Laws of the Federation of Nigeria 2004.

31. Section 1 of the Patents and Designs Act.

32. Section 6(1).

33. Section 25.

34. Copyright Act 2022 available at https://placng.org/i/wp-content/uploads/2023/04/Copyright-Act-2022.pdf accessed 19th June 2023.

35. Section 3 of Trade Mark Act Cap T13 LFN 2004.

36. Section 251 (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

37. Section 46 of the Copyright Act, Section 67 of the Trade Mark Act, Section 32 of the Nigerian Patents and Design Act.

38. Adejoke O. Oyewunmi, Nigerian Law of Intellectual Property, University of Lagos Press, 2015 at p. 202.

39. 2022, available at https://placbillstrack.org/upload/HB91-AsPassed.pdf accessed on 7th July 2023.

40. Section 1(4) and (5) of the Patents and Designs Act.

41. Section 3 of the Copyright Act 2023.

42. Johnson Bryant "The Defence of Fair Dealing in Nigerian Copyright Law: Tradeoffs Between Owner and User" 2018, available at https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-copyright-law-tradeoffs-between-owner-and-user#_ftn5 accessed on 7th July 2023.

43. Section 31 of the Copyright Act 2022.

44. Section 35.

45. Section 11 of the Trade Marks Act.

46. Section 12.

47. Section 13.

48. Section 62.

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