Feb 2, 2018

How Creatives Can Protect their Intellectual Property Rights | Adedunmade Onibokun

 As an Artist, Inventor, Photographer or a member of the creative industry, it takes a lot of effort, skill and hard work to do what you do and it is a reasonable expectation to be paid for your work. However, once work is made available to the public, the chances of someone claiming the work as their own or reproducing it without giving proper credit is extremely high in today’s technologically advanced and share-friendly culture. Nothing is more infuriating than discovering that your creative ability is being exploited by someone who has neither the permission nor the right to do so.

Adequately curbing piracy in Nigeria still requires a lot of effort despite the spirited actions of several government agencies. Truth is, there really is no actual patent or copyright police, roaming the streets on behalf of Creatives and looking to investigate piracy, except for the few police raids on centers known for selling or making pirated works.  Most Creatives therefore usually enforce their rights, themselves though our non – evolving laws and the inadequacies of judicial enforcement are not encouraging.  

To protect your Intellectual Property Rights (IPRs), the first thing to note is registration with the relevant authority. IPRs are governed by the Trademarks Act, the Patents and Designs Act, the Merchandise Marks Act and the Copyright Act, in addition to the principles of common law.

The Trademarks Act
A trademark consists of any word, symbol, or device used to distinguish the company’s goods or services. A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others. The Act provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of a trade mark except it is registered.

The Patents and Designs Act
The Act provides that 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 patented invention. Patents protect ideas that are novel, useful, and non-obvious. When a patent expires which is usually about 20 years, the item or process enters the public domain. Until that time, a patent holder can prevent unauthorized use, manufacture, or sale of the invention. 

The Merchandise Marks Act
The Act relates to fraudulent marks on merchandise and provides in Section 3, that anyone who forges a trademark or assigns on goods a false trademark with intent to deceive or has in his possession forged goods for sale shall be liable- on conviction before a High Court to imprisonment for a term of two years, or to a fine, or to both and on summary conviction before a magistrate court to imprisonment for a term of six months or to a fine.

The Copyright Act
Copyright law protects the creative expression of ideas. Ideas themselves may be protected by patents, not copyrighted. Any creative work that has been fixed in a tangible medium of expression, such as paper, software, or film, and that can be reproduced or otherwise communicated exactly is automatically protected by copyright law. Examples include art, songs, movies and writings. The digital world is boundless and to protect a copyright, an artist may have to use digital watermarks on their creations and put up a copyright notice on the web page where your work is displayed.

How to enforce IPRs
Having registered your intellectual property, whether trademarks, copyrights or patents; enforcing your legal rights against any person who may have infringed on them is the second step to protecting your IPRs. IPRs are protected through the registration of rights with the relevant registries and regulatory bodies established by the Nigerian Government, such as the Trademarks, Patent and Designs Registry. the Nigerian Copyright Commission (NCC), as well as other related offices, such as the National Office for Technology Acquisition and Promotion (NOTAP), the Standard Organization of Nigeria, and the National Agency for Food and Drug Administration and Control (NAFDAC). All these offices run their independent registries and often interface in the discharge of their mandate.  

·        National Agency For Food And Drug Administration And Control (NAFDAC)
NAFDAC is empowered to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, packaged water and chemicals, generally known as regulated products. Under the provisions of various regulations and guidelines on registration, the submission of evidence of ownership of trademark is a condition precedent for the registration of branded regulated products. Where an infringed trademark is used in respect of a product that is within the purview of NAFDAC powers, a petition can be presented to NAFDAC in that respect.

·         The Nigeria Copyright Commission (NCC)
The role of the NCC is limited to works which are eligible for copyright protection under the Act. It is the agency responsible for the enforcement of the Copyright Law in Nigeria, carrying out raids and seizing items that are pirated, prosecuting perpetrators and convicting them with copyright infringement. If a copyright is infringed, a petition can be made to the NCC on registered copyrights.

·         Nigerian Customs Service
The new fiscal policy of Nigeria, as contained in the Common External Tariff for 2008–2012 Schedule 4, provides the list of goods which are absolutely prohibited from being imported. Specifically, Item 3 prohibits the importation of “all counterfeited/pirated materials or articles including base or counterfeit coin of any country.”

·         The Nigerian Police
Section 4 of the Police Act provides for the general duties of the police and one of such duties is the prevention and detection of crime and the apprehension of offenders. As such crimes bothering on criminal infringement of IPRs can be reported to the Police.

·         The Nigerian Intellectual Property Office (IPO)
The IPO is an arm of the Commercial Law Department under the Ministry of Trade and Investment, and is also known as the Nigerian Trademarks, Patent and Designs Registry. Applications challenging the grant of Trademarks either before or after such registration can be made to the IPO.

·        The Federal High Court
The Federal High Court is the court with jurisdiction to enforce IPRs and civil proceedings for infringements can be instituted at the Federal High Court against any offender. The Federal High court is also vested with the authority to hear criminal matters bothering on the infringement of IPRs.

It is important that in Nigeria, there are several pieces of work that do not fall under the protection of IPRs in Nigeria, including the style designs of fashion designers, therefore a designer such as Ugo Monye who made the popular native attire Ebuka Obi-Uchendu wore cannot claim damages or infringement against any other designer who recreates the outfit.

There continues to be a call for a reform of Nigeria’s IP laws as most of the current legislations are old and do not conform with today’s reality.

If you will like to read further on how to legally protect your business or startup, here are 10 tips.

Adedunmade Onibokun

Adetola Adeleye. (2016). INTELLECTUAL PROPERTY RIGHTS ENFORCEMENT IN NIGERIA: REGULATORY AGENCIES TO THE RESCUE.Available: http://pennjil.com/intellectual-property-rights-enforcement-in-nigeria-regulatory-agencies-to-the-rescue/. Last accessed 2nd Feb, 2018 .

 Ray Dickinson. (2017). What Can You Protect? Types of Intellectual Property. Available: http://edwardlowe.org/what-can-you-protect-types-of-intellectual-property/. Last accessed 2nd Feb, 2018.

Photo Credit - Pic 1 - www.guardianng.com ; Pic 2 - www.lindaikejisblog.com 

NOTE: Please note that this article is strictly for educational purposes and not for commercial purposes. If you have any comments or remarks you may contact the author.