INTELLECTUAL PROPERTY PROTECTION – SMALL, MEDIUM ENTERPRISES IN NIGERIA According to the International Council for Small Business (ICSB), Micro, Small and Medium-sized Enterprises (MSMEs) make up over 90 per cent of all firms, provide up-to 60% employments, and account for 50 per cent of Gross Domestic Product (GDP) of any economy1. This information is relevant in an increasingly knowledge driven economy, where intellectual property (‘IP’) remains a valuable asset in day-to-day business decisions as it ensures that businesses remain competitive, unique and relevant. This relevance prompts the need for business owners and entrepreneurs to fully understand the concept of protecting novel ideas, concepts, trademarks/brands and software applications. Therefore, a forward-thinking business owner or a prospective entrepreneur must understand the relevant intellectual property rights and the ways to ensure that same is adequately protected under the law. There are two major reasons for the above: • Registration of innovation, marks or processes prevents competitors from taking undue advantage of the intellectual efforts made by the developing party. If left unprotected, a good invention or creation may be lost to larger competitors that are in a better position to commercialise the product, thereby leaving the original owner with little or no reward. • It is also vital for business owners to be acquainted with intellectual property framework to avoid potentially infringing on IP laws and regulations. For example, a company that engages a web developer will ensure that requisite licences are obtained on all pictures used in the development of the company’s website, thereby avoiding liability for illegal use of protected images. The value of IP is often not adequately appreciated and its potential for providing opportunities for future profit is widely underestimated by SMEs in Nigeria. When IP is legally protected, and there is demand for the IP-protected products and/or services in the marketplace, it can indeed become a valuable business asset. Thus, the objective of this legal clinic session is to discuss the importance of having SMEs protect their IP by enlightening them on the various types and ways IP can be protected under Nigerian laws.
1. What is Intellectual Property (IP)? • Intellectual property as defined by the World Intellectual Property Organization (WIPO) is the creation of the mind such as inventions; literary and artistic works; symbols, names and images which have a commercial value. It is a category of property that includes intangible creations of the human intellect, and primarily encompasses copyrights, patents, and trademarks. 2. What are the different types of works that can be protected? The different types of intellectual property recognized and protected in Nigeria include: • Copyright, which covers all varieties of creative works including paintings, sculpture, prose, poetry, plays, musical compositions, dances, photographs, motion pictures, radio and television programs, sound recordings, and computer software programs; • Trademarks, which covers words, slogans, and symbols that serve to identify different brands of goods and services in the marketplace; • Patents which covers all inventions which demonstrate technological development and progress; • Industrial designs these primarily cover 3D designs; and • Trade secrets, which covers all confidential information that belongs to a business and gives that business a competitive advantage. 3. Why protect your intellectual property? Intellectual property of a business or individual may extend beyond just an idea or a concept. It may transform to becoming valuable assets which can be integral to the core operations and viability of the business. To this end, the theft of intellectual property poses a serious threat to all businesses. This serves as a vital incentive to ensure that business owners protect these ideas/concepts. Also, protecting intellectual property rights aid in distinguishing businesses from its competitors. Without doubt, this is key to the brand and marketing of the business. It is worthy to note that protect rights also vest a right of action in the owner, in the case of a breach or violation by third parties. 4. How can intellectual property rights be protected in Nigeria? Intellectual Property Rights in Nigeria can be protected by registration of the IP with recourse to the relevant provisions of extant laws. Registration of IP vests a right of action on the registered proprietors of intellectual property. In the event of violation, these rights can be enforced through the court system and tribunals such as the Trademarks and Patent Tribunal, and through various regulatory bodies. Also, Section 251 (1) (f) 1999 Constitution of the Federal Republic of Nigeria vests exclusive jurisdiction in the Federal High Court over disputes relating to copyright, patent, trademarks and passing-off, industrial designs and merchandise marks. 5. What are the benefits of protecting your IP? There are many benefits that accrue to a business owner or an individual whose intellectual property is protected and they include the following: a. Product-differentiation: When your intellectual property is protected, your product is distinguished from that generally found in the market and gives you a unique advantage making it difficult for competitors to appropriate and incorporate your properly protected idea into their products. b. Brand Recognition: When a business builds strong goodwill with its consumers, the identifying trademark as the source of certain products or services can be extremely valuable as it distinguishes the brand. This prevents competitors from appropriating the positive image of the business by associating with the brand or passing off their products as yours. c. Technological advantages: Protecting your intellectual property by patenting your technological innovations prevents competitors from taking undue advantage of your innovations and deters competitions. d. Business advantages: It improves your competitive advantage which in turn helps secure business advantages. For instance, copyrights can be an extremely valuable asset depending on the business. Software companies, creative companies (involved in film, photography, marketing and advertising), and technology companies, can all benefit by filing notifications of the copyrights for their key works. 6. What are the relevant laws on intellectual property protection in Nigeria? The relevant laws governing IP rights and protection in Nigeria include: • The Constitution of the Federal Republic of Nigeria 1999 (as amended) • Copyright Act (as amended), Cap. C28, Laws of the Federation of Nigeria 2004 • Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria 2004 • Trade Marks Act, Cap. T13, Laws of the Federation of Nigeria 2004 • Merchandise Marks Act, Cap. M10, Laws of the Federation of Nigeria 2004 • Trade Malpractices (Miscellaneous Offences) Act, Cap. T12, Laws of the Federation of Nigeria 2004 7. How much does it cost to protect intellectual property in Nigeria? There are no fixed prices for the registration of intellectual property in Nigeria as prices could differ most times, taking into consideration the type of application; the professional fee of the lawyer or agent handling such application. For instance, the cost of registering a trademark under more than one class will be higher than a registration under one class. 8. Is the protection perpetual or does it require renewals? Intellectual property protection in Nigeria is not perpetual, rather it is subject to renewal. The number of years however differ depending on the intellectual property sought to be protected. a. Copyrights: The duration of a protected copyright generally depends on the type of work involved. For literary, musical or artistic works other than photographs, the copyright subsists from the date of creation and expires 70years after the end of the year in which the author dies. In the case of a sound recording, cinematograph films and photographs, copyright expires 50years after the end of the year in which the first publication was made whilst for broadcasts, copyright expires 50years after the end of the year in which the broadcast first took place. b. Trademarks: Trademarks are valid for a period of seven (7) years from the date of the initial application. It is however subject to renewal from time to time at the option of the registered proprietor and each renewal is valid for a period of fourteen (14) years from the date of expiration of the original registration or of the last renewal of registration as the case may be. There is no limit to the number of renewals a mark may be subjected to. c. Patent: A registered Patent is valid for a period of 20 years subject to an annual renewal and payment of the renewal fees within the indicated 20 years after which it reverts to the public domain. Where there is a default in the payment of the annual renewal fee, the patent lapses, and if not renewed after the expiration of a 6 months period of grace, the patent may not be revived. d. Design: A Design once registered is renewable. The registration of a design lasts for a period of 15 years after which it reverts to the public domain and is no longer renewable. However, the Design must be renewed after every 5years within the indicated 15 years period. 9. How can Intellectual property rights be adequately enforced in Nigeria? Intellectual property right can be adequately enforced in Nigeria through the following ways: • A substantial amendment of existing Acts to bring them into reality with existing developments in the global sphere. • Participation and collaboration with the legislators to ensure that the laws are reviewed to serve as deterrence to potential offenders • Public awareness and sensitization on intellectual property rights protection • Collaboration among regulatory agencies in the area of information exchange towards enhancing effective enforcement. • Introduction of alternative dispute resolution procedures to reduce the delays in enforcement. • Increase in funding of regulatory bodies and government agencies responsible for enforcement of Intellectual Property. 10. Does protection of intellectual property in Nigeria extend globally? No. Registration or grant of Intellectual Property right, its protection, and its enforcement always remains with individual nations. This is because Intellectual Property rights protection offered by nations has a municipal effect i.e. it remains valid only within the registered nation's territory. For an Intellectual Property registered in Nigeria to be accorded protection globally, separate protection must be obtained in the country of choice. Otherwise, the product can become susceptible to theft by pirates, counterfeiters or trolls who may even go further to register such products. The "International Intellectual Property Rights system" however exists to provide uniform international protection structures. This refers to agreements between nations who subscribe to a uniform set of requirements with regards to a grant of an application for intellectual property protection but the actual grant would still be subject to the consideration and standards of the given nation. However, this International System is not automatically applicable to every country, but only to countries that are signatories and have ratified the Treaty governing the system. It is key to obtain requisite professional advice from IP attorneys so as to ensure that the relevant IP protections are obtained globally (if required).
