The World Intellectual Property Organisation (WIPO) defines Intellectual Property (IP) to mean creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.
In Nigeria, the three main legislation that govern and protect IP rights are the Copyright Act, the Patents and Designs Act, and the Trade Marks Act. While the Copyright Act is mainly focused on the governance and protection of the rights in musical and artistic works, the Patents and Designs Act governs and protects rights to inventions that extend to things like machines, devices, chemical compositions, industrial designs and manufacturing processes. The Trade Marks Act, on the other hand, governs and protects rights in marks, signs, or other such combination that is peculiar to a particular owner for identification of the owner's design and differentiating it from other products, especially competitors.
In recent times, the IP space in Nigeria has witnessed a number of developments that are critical to note. In this Article, we have discussed some of these developments and highlighted the impact on creatives, IP rights owners and other stakeholders.
The Enactment of the Copyright Bill 2022
On 17 March 2023, Former President Muhammadu Buhari signed the Copyright Bill 2022 (now “Copyright Act” or “the Act”) into law. The Act seeks to protect the rights of authors and ensure adequate reward and recognition for their intellectual efforts; provide appropriate limitations and exceptions to guarantee access to creative works; facilitate Nigeria's compliance with obligations arising from relevant international treaties and conventions; and enhance the capacity of the Nigerian Copyright Commission (NCC) for effective regulation, administration, and enforcement of the provisions of the Act.
The Act repeals the Copyright Act Cap C28 LFN 2004 (which was enacted in 1988) and has introduced mechanisms for the protection of new mediums of expression of creative works and methods that have arisen due to advancement in technology.
Some of the key provisions of the Act are:
Eligibility for Copyright
The Act provides that the following works will be eligible for
- literary works;
- musical works;
- artistic works;
- audiovisual works;
- sound recordings;
provided that some effort has been expended and the work has been fixed in any medium reproduced or otherwise communicated either directly or with the aid of any machine or device.
- Performer's Rights The Act introduces certain economic and moral rights for performers in line with the provisions of the Beijing Treaty on Audiovisuals and Performances which was ratified by Nigeria in 2017. Amongst other things, the Act requires that sufficient protection be given to performances, both fixed and unfixed, and appropriate remuneration be provided for the performers.
- Special Exceptions for Blind, Visually Impaired or Otherwise Print Disabled Persons Section 26 of the Act contains provisions that aid accessibility by certain disabled persons in line with Nigeria's commitments under the Marrakesh Treaty for the Blind and Visually Impaired Persons of 2013 (Marrakesh treaty) The Section provides that an "authorised entity" can make or procure an accessible format copy of a work or subject matter and supply the copy to beneficiary persons by any means, including non-profit lending, or electronic communication by wire or wireless means without the permission of the owner of copyright in the work. The Section further defines an "authorised entity" as an entity that is authorised or recognised by the government, or receives financial support from the government, to provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis.
- Protection of Online Content Part 7 of the Act comprising Sections 54 to 62 is dedicated to actions that can be taken to protect online content. It places an obligation on online service providers to investigate and take down infringing content after receiving a notice from copyright owners. The NCC has also been empowered to block or disable access to any content, link or website hosted on a system or network, which it reasonably believes to infringe copyright. The Act criminalises the knowing circumvention of a technological protection measure that effectively protects access to a work protected under the Act. It goes further to prohibit the manufacture, sale, purchase, distribution or use of any device, technology or service that can be used to circumvent protective measures put in place for copyrighted works. This is in line with Nigeria's commitments under the World Intellectual Property Organisation (WIPO) Performances and Phonogram as well as Copyright Treaties.
- Offences and Penalties The Copyright Act prescribes penalties for offences which range from ₦10,000 to ₦1,000,000 or imprisonment terms of up to 5 years. These include, a fine of at least ₦1,000,000 or imprisonment for a term of at least 5 years or both when a Copyrighted work is made available to the public without the consent of the owner. The Act further permits both criminal and civil actions to be taken simultaneously in respect of the same infringement under it.
Given the increased use of social media and digital content, it became expedient for the provisions of the law to reflect the rapid advancement in technology and the possible threats facing authors and curators of original works. Hence, the signing of the Copyright Act was a necessary intervention by the Nigerian Government.
Amendment of the Patent and Designs Act under the Business Facilitation Act, 2022
Earlier in 2023, Former President Muhammadu Buhari signed the Business Facilitation (Miscellaneous Provisions) Bill (now “Business Facilitation Act” or “BFA”) into law. The BFA seeks to promote business accessibility in Nigeria for accountability, effectiveness, and productivity.
The BFA, which is effective from 8 February 2023, introduces a number of provisions to promote ease of doing business in Nigeria and specifically amends relevant sections of a number of laws including the Patent and Designs Act.
Specifically, the BFA introduces an amendment to the First Schedule of the Patent and Designs Act to grant the Minister of Industry, Trade & Investment (“the Minister”) powers to prescribe the procedure for the application, grant, use and withdrawal of Compulsory Licenses by regulation.
Compulsory Licences are licenses which may be granted by a court with respect to a patented invention without the consent of the patent owner upon certain specified grounds. Under the Patents and Designs Act, Compulsory Licenses are an exception to the rule that an inventor or a patentee can enjoy exclusive rights to his invention to the exclusion of all others. Typically, a Compulsory License can be deployed as a tool by government in accelerating advancements in invention or addressing certain national emergencies in the interest of the public.
Paragraph 13 of the First Schedule of the Patent and Designs Act provides that the Minister, by order in the Federal Gazette, may provide that, for certain patented products and processes (or for certain categories) declared by the order to be of vital importance for the defence or the economy of Nigeria or for public health, compulsory licences may be granted before the expiration of a certain period and may permit importation.
"Businesses require competent regulatory advisors to assist them in navigating the IP landscape in Nigeria and to ensure that their rights are adequately protected and are not infringed upon. Given the recent changes in legislation and other expected legislative action, it is important for businesses to continually liaise with their consultants to ensure that they are aware of their rights and obligations in IP matters especially in the face of the changing regulatory regime and practice in Nigeria."
Therefore, the amendment introduced by the BFA now expressly allows the Minister to regulate the process for application and grant of compulsory licenses to products referred to in Paragraph 13.
While we await the Regulation to be issued by the Minister, it is expected that this provision will allow the Minister to provide additional clarity on the operations of Compulsory Licenses under the Patent and Designs Act in Nigeria.
Amendment of the Trade Marks Act under the Business Facilitation Act 2022
The BFA also introduced an amendment to Section 67 of the Trade Marks Act. Based on the amendments, the definition of “goods” under the Trade Marks Act now includes “services”.
The new definition of “trade mark” explains it as a mark used or proposed to be used in relation to goods or services (and not only goods).
This implies that the Act now specifically acknowledges the use of trademarks to protect not just tangible goods, but also services. Although prior to now, businesses offering services have been able to register their trademarks with the Ministry of Trade and Investment, it is important for businesses to take note that there is now a statutory backing for this practice based on the amendments to the Trade Marks Act.
The Nigeria Creative Industries Development Bill, 2023
One other significant development that occurred at the twilight of the last administration was the drafting of the Nigeria Creative Industries Development Bill, 2023. This was a novel draft legislation that was to establish the Creative Industries Development Commission and provide an enabling environment for the creative industries in Nigeria. Its main focus was to provide a specific legal, regulatory and institutional framework for the development of a sustainable environment for the creative industries in Nigeria and other related matters. While a draft of the legislation was in circulation, it was not deliberated upon or enacted by the National Assembly, but the expectation is that the Bill will be submitted to the current National Assembly for consideration.
IP is a very crucial asset for business advancements in Nigeria. Hence, it is critical for businesses to keep abreast of developments in the IP space to be able to identify possible areas of opportunities and threats to the business.
Businesses require competent regulatory advisors to assist them in navigating the IP landscape in Nigeria and to ensure that their rights are adequately protected and are not infringed upon. Given the recent changes in legislation and other expected legislative action, it is important for businesses to continually liaise with their consultants to ensure that they are aware of their rights and obligations in IP matters especially in the face of the changing regulatory regime and practice in Nigeria.
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.