WHAT IS INTELLECTUAL PROPERTY?
Intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain names, written and recorded media and inventions. The word IP refers to creation of the mind and expression: inventions, literary and artistic works, symbols, names and images used in commerce.
TYPES OF INTELLECTUAL PROPERTY
For the purpose of this write up, major emphasis will be on the four traditional aspect of Intellectual Property in Nigeria and they are as follows with the applicable governing laws:
- Trademark – Trademarks Act 1965
- Patent – Design and Patent Act 1970
- Industrial Design – Design and Patent Act 1970
- Copyright – Nigerian Copyright Act (Amended) 1999
A trademark is a distinctive name, sign or logo which uniquely identifies the source of goods and services. The primary aim of the Trademarks Law is to ensure that no-one uses a trademark of another which is similar or identical as to cause confusion in the course of trade in relation to the goods and / or services in which it is registered.
A patent is a right granted to anyone who invents any new and useful process or fundamentally impresses an existing process. In order to protect an invention it must be novel or essentially better in some way than what was previously made, or a better way of making it.
Industrial design is the ornamental or aesthetic aspect of a useful article which may consist of the shape, pattern and / or color of the article and must appeal to the eye.
It could simply be said to be a combination of lines or colors or both and any three dimensional form.
Copyright is that aspect of the law that deals with the rights of intellectual creators in preventing unauthorized copying or reproduction of the literary or artistic works.
The principal purpose of Copyright is to protect against the appropriation of the produce of another person's literary and artistic work or effort.
Copyright consists of exclusive rights given to the creator in the exploitation of his works; this includes painting, music, poem, architecture, computer software, maps and technical drawings.
RELATIONSHIP AMONG INTELLECTUAL PROPERTY COMPONENTS
The various components of Intellectual Property are independent on their own as mentioned earlier and situations may arise where an overlap may exist among them. For instance a single product may have more than one type of intellectual property. Example, in a refrigerator,
- A trademark can exist herein, protecting the name and logo of the refrigerator's manufacturer e.g. whirlpool, Frigidaire
- The parts and processes of the refrigerator that keep food cold may be patented
- The Design of the refrigerator (the style and appearance of its drawers, shelves, handles, etc) can be protected by Industrial Design.
- The refrigerator's operating manual, an original written text, can be protected by copyright
NON- TRADITIONAL IP
The commercial aspects of intellectual property are usually referred to as the non-traditional aspects of IP, the list not exhaustive includes:
- IP Securitization
Furthermore, IP has become a fundamental consideration in the following transactions:
- Merger and Acquisition
- Joint ventures
- Due Diligence
THE IMPORTANCE AND GLOBAL ECONOMIC VARIABLES OF INTELLECTUAL PROPERTY
Technology and knowledge have played an important role in economic growth of major world economies like the UK, USA and emerging economies like the BRIC countries i.e. Brazil, Russia, India and China.
Intellectual property through globalization and technological innovation has come to reveal an enticing allure in corporate strategy affecting company ratings. Therefore, it is safe to say a country with higher rate of technological growth would experience a higher standard of living than those of countries without much growth.
There has been a tremendous growth in company investment in intangible assets. According to the company asset valuation recorded by Fortune 500, Intellectual Property Assets (intangible assets) was translated to make up approximately 80% of companies value.
One of the consequences of global trade that started at the beginning of the 1990s in the developed countries was the creation of a deliberate connection between trade law and IP policies to use trade measures to curb piracy of intellectual property rights which led to the TRIPS Agreement.
This agreement establishes global standards for IP protection that would be binding on both developed and developing countries which includes enforcement and border measures.
It has been stipulated that Intellectual property significantly influences the appreciation in value and the accumulation in quantity of human capital and technological change. For example the growth in patent filing is associated with the growth of knowledge and patent-related statistics can act as an indicator of the strength or weakness of a country's economy.
The influence of IP can also be said to have been reflected in the increasing contribution in the high technology and knowledge-intensive industries. For instance there is now the inclination of firms to patent their inventions and this has increased worldwide which includes some developing countries.
PCT in developing countries have started to accumulate knowledge and increase in economic power.
ECONOMICAL BENEFITS OF IP PROTECTION
- It has the potential causative to a country's efforts to attract Foreign Direct Investment (FDI) and provide the necessary conditions for transfer of technology.
- It facilitates transfer of technology such as patent licensing through an active use of patent information.
- Intellectual property protection plays a catalytic role in inspiring research and development in a country.
- Trademarks are important component of the IP system which has strong influence on private investment and marketing decisions as they are intangible capital.
- The commercialization of IP is a significant stimulus to economic growth.
WHERE WE ARE NOW
In comparing the practice of IP in Nigeria with the practice in other countries of the world, it is imperative to note that Nigeria is still very much reliant on the English Laws. For instance the applicable Trademarks Act of 1965 in Nigeria was fashioned after the English Trademarks Act of 1938.
These laws have been overtaken by modern technological and economical advancement. The UK Trademarks Act over the years has been amended and is presently being regulated by the English Trademarks Act 1994.
As Nigeria advances industrially, there is the need to update our laws to address the present lacuna in our legislation. For instance, there should be recognition and incorporation of the registrability of smell, sound and geographical indication into our laws.
Intellectual Property is mainly about protection of property rights and the mechanism through which IP is being administered in Nigeria is through the Courts, Registry and Copyright Commission.
IP stakeholders are building public awareness of the role of IP by organizing seminars to create a broad understanding and respect for the system.
The Federal Government of Nigeria approved the registration of service marks with effect from 19th March 2007. However, this directive is yet to be published in the official gazette. It is worthy of note that service marks are being filed and in the last two publication of the Trademarks Journal, service marks were advertised.
INTELLECTUAL PROPERTY AS A TOOL FOR ECONOMIC GROWTH IN NIGERIA
- Promotion of trade and innovation especially in areas of technology
- Intellectual Property rights encourages the acquisition of more wealth
- Intellectual Property can help in the technological advancement of industries
- Intellectual property has also helped the living conditions of people with major emphasis on patent which deals mainly with inventions
The importance of Intellectual property in Nigeria is growing fast especially in terms of local inventions which has become recoginised internationally.
According to Goldman Sachs a leading global investment bank, securities and investment management firm, Nigeria has been projected to be amongst the Next Eleven (N-11) countries the world should watch out for as having a high potential of becoming the world's largest economies along with the BRICs countries (Brazil, Russia, India and China).
CHALLENGES FACED IN NIGERIA ON INTELLECTUAL PROPERTY
The growth of Intellectual property in Nigeria can not be sideline as a result of the importance derived from this aspect of law. Notwithstanding the importance and growth there are still some challenges faced in this field. These include:
- Lack of awareness
- Passive involvement of Government in Intellectual Property Law
- Most innovation are not registered
- Counterfeiting Act performed by non owners of Intellectual Property Rights
- Non compliance with Intellectual Property Treaties such as TRIPS, PCT (Patent Co-operation Treaty). According to the provision of Section 12 of the Constitution of Federal Republic of Nigeria Which states that "No Treaty between the federation and any other country shall have the face of law except to the extent to which such treaty has been enacted into law by the National assembly".
- Inadequate Policies by Government on Intellectual Property
Having examined the challenges encountered by Intellectual Property in Nigeria it is paramount to recommend a solution for awareness and development of Intellectual Property in Nigeria in other to withstand other countries and be on the same pedestal with them.
For proper economic, social and cultural development to occur, Intellectual Property must play a fundamental role. The way forward includes:
- There is the need to update our laws and incorporate the protection of IP rights on smell and sound as already practiced in the major world economies. It is indeed a laudable achievement that service marks are now being registrable in Nigeria, however in order to support this accomplishment there is the need to publish same in the official gazette.
- Improvements on awareness as to the importance of Intellectual Property in Nigeria. Through advertisement, seminars and symposium in Technical schools, Institution of higher learning, companies, and Industries where most innovations are carried out.
- Encouragement of R & D by the Federal Government thereby assisting with funding.
- Continuous education for registry personnel
- Improvement on Government Policies especially in commercialization of invention where financial difficulty is encountered.
- A thorough review of Patent and Trademark laws which are archaic and a lot of deficiencies are contained, thereby an adequate legal infrastructure and progressive policies on protection of Intellectual Property would be relevant.
- Enforcement of Intellectual Property rights: ensure effective enforcement mechanism is put in place by providing adequate resources to combat counterfeiting and piracy.
- Ratification of Relevant Treaties. The need to domesticate the relevant treaties into our laws as a treaty can not be enforced without it being ratified. There are several intellectual property (patents) treaties that would have made changes in our national laws, but since they are not ratified there is little contribution such can make.
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.