Google, Tom & Jerry, Snapchat, Starwars, Instagram, Americanah© by Chimamanda Ngozi Adichie, Beyoncé, Beyhive, Facebook, Exxon Mobil, Yahoo!.
A new world of ideas
The world is moving at a faster pace and the tools being employed in this rat race are of an intellectual nature. There is a shift towards recognising that all elements of creations can and should be protected. Metaphorically speaking, the seeds sown by a farmer and the crops that grow are both equally important. Any idea could start a billion dollar business and as a result, that idea should be capable of being protected. The existence and protection of non-tangible rights such as music, lyrics, broadcasts, words, acts in a broad sense is what intellectual property rights are all about.
Take a look at the popular story of a university student and his friends who sat in a dorm room and came up with an idea to enable other university students to communicate with one another via an internal network – that was the idea. Today, that idea has given life to the billion-dollar social networking platform that is Facebook. This serves to illustrate that an idea, intangible as it may seem, can reap a lot of financial rewards when implemented properly. The rest of the world has realised this and have decided that ideas do need to be legally protected in order to secure the interests of the originator/creator of the idea.
This is where intellectual property rights come in. Intellectual property rights come in various forms such as patents, copyrights, trademarks, etc.
Protecting IP in Nigeria, a slow-moving train
Nations have entered treaties and drafted legislation that protects its interests and those of its citizens in both the international and domestic markets. In Nigeria, that statute which regulates copyrights is the Copyright Act 1988.
A look at the Nigerian legal system will reveal that copyright is not as heavily litigated as other types of law such as the law of torts, contract law or property Law. There have, however, been some prominent intellectual property suits. One was the 1975 case involving King Sunny Ade against his record manufacturing company – African Songs; and its subsidiary, Take Your Choice Stores. The judge had ordered the companies to return the master tapes of King Sunny Ade’s songs but the companies did not comply with the judicial order. King Sunny Ade consequently instituted another suit at the Federal High Court in 1997 to obtain the master tapes and seek redress for the infringement of the copyright to his musical works. In 2015, the Federal High Court finally ruled in favour of King Sunny Ade granting him damages to the tune of about ₦500 million as well as general damages of ₦3 Million. This was viewed as a major victory for intellectual property and the creative industry at large as it showed that the court was taking active steps in protecting intellectual property rights. The 18-year lag in arriving at the judgement is an altogether different conversation and this is not factoring the appeal that has been filed by African Songs and will almost certainly take its precious time if the matter goes up to the Supreme Court! An unduly lengthy court action will definitely prohibit aggrieved parties from turning to the courts for the protection of their rights or to seek redress for a wrong done to them.
Another example of the shifting trend towards the recognition of intellectual rights and the need to protect them was the agreement between the National Copyright Commission (NCC) and the National Broadcasting Commission (NBC) that the NBC would pay royalties to the NCC for the broadcasting of musical works and sound recordings of Nigerian musicians.
Small wins go a long way
Despite these little morsels of progress, a lot still remains to be done in order to develop the administration of intellectual property rights in Nigeria. For example, from my experience, it takes about a year (if not more), to complete the registration process and obtain the Certificate of Registration of Trademark at the Trademarks Registry. It is hoped that the Presidential Enabling Business Environment Council (PEBEC) would shine a spotlight on this area and take necessary measures to turn it around.
Furthermore, there is a need to create more awareness about the existence of intellectual property rights. It is suggested that Collecting Societies take steps to inform and educate the public of their rights. These societies are recognised under section 32(b) of the Copyright (Amendment Act) 1992 as an association of copyright owners which has its principal objectives of negotiating and granting of licensees, collecting and distributing of royalties in respect of copyright works. Perhaps the Act needs to increase the quantum of powers available to collecting societies to foster broader enforcement of intellectual property rights. Currently, their powers are currently limited as they are required to seek and obtain the NCC’s approval before acting based on the Court of Appeal’s decision in NCC & ORS V. Musical Copyright Society of Nigeria (2016) LPELR-41009(CA).
Of utmost importance is the fact that the Copyright Act 1988 needs to be reviewed and amended. The United Kingdom passed its copyright legislation, the Copyright Patents and Design Act in 1988 and have amended it numerous times over the years – the latest being in 2014, whereas Nigeria has amended its law only twice. These amendments and reviews have benefitted UK creators tremendously as they have fixed gaps in the law and adjusted it in ways that would benefit creatives, regulators and consumers. A sterling example that portrays the inadequacies inherent in the 1988 Nigerian Copyright Act is the fact that copyright is simply defined as ‘Copyright under the Act’. The definition section does not do much to define it at all.
A clarion call©
Intellectual property has the capacity to improve Nigeria’s economic fortunes. Most countries around the world have put in place adequate measures to enable its citizens to tap into this gold mine, by putting in place, laws and systems that effectively govern the administration of copyright. This is, therefore, a clarion call to the Nigerian legislature to spearhead the proper development of Nigerian copyright law; for the executive government to put in place efficient administrative systems that enable people and companies register their intellectual property rights with ease and within the fastest possible time; and to the judiciary to take active steps in ensuring that intellectual property disputes are concluded swiftly without sacrificing justice on the altar of speed.
Chinyere Akachukwu is an attorney with a foremost Nigerian law firm. She writes from Lagos