Enforcement of Intellectual Property (“IP”) in Nigeria is saddled with loop holes, bureaucratic bottlenecks, lack of technical knowledge, skills and lack of public awareness. These have led to the prevalence of piracy, counterfeiting, unauthorised, unlicensed use and infringement of IP rights. Though there have been laudable developments in recent times, there is still a wide gap in the enforcement of Intellectual Property Rights.
Regulatory Framework & Institutions
The principal types of Intellectual Property rights in the Nigeria Legal System are Copyrights, Patents, Trademarks and Industrial Designs. The regulatory frameworks include by the Copy Right Act Cap C28, Trade Marks Act Cap T13, Patent & Design Act P2 and the Merchandise Marks Act Cap M10.
These laws are enforced by the Nigerian Copyright Commission (“NCC”), The Trademark, Design and Patents Registry which is a subdivision of the Ministry of Industry, Trade & Investment, The National Agency for Food and Drug Administration Control (“NAFDAC”), The Nigerian Police (“NPF”) and The Nigerian Custom Service (“NCS”).
Nigeria is also a signatory to numerous international treaties on Intellectual Property. These include the World Intellectual Property Convention (“WIPO”) of 1970, Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”), Berne Convention and Rome Convention for the Protection of Performers, Producers of Phonograms &Broadcasting Organisation etc.
The Current Situation
Enforcement of IP rights in Nigeria have been slow, largely ineffective and ladled with obstacles and loopholes. We shall consider the causative factors:-
- Obsolete and Weak Laws: The principal laws in force were adopted from the Laws of England and date back as far as the 19th Century with no review since enactments. Intellectual Property is a steadily evolving concept and these laws do not also take into consideration, these dynamic changes in IP including the advancements in Technology. These Laws are also weak and cannot effectively control issues like piracy and counterfeiting.
- Non Implementation of International Treaties: Section 12 of the Constitution of the Federal Republic of Nigeria 1999 as amended (“CFRN”) provides that before an International Treaty can be implemented in Nigeria, it must be ratified and enacted by the Legislative. Though Nigeria is a signatory to numerous International Treaties on IP, which can be a supplement to our laws, these cannot be implemented because they haven’t been ratified and enacted according to the CRFN.
- Lack of Awareness and Inadequate Finance & Staffs of the Regulatory Agencies: Regulatory Agencies charged with enforcing IP rights in Nigeria are greatly understaffed; lack the necessary equipment, training and knowledge to effectively carry out their duties. . These culminate in a slow and inefficient enforcement of IP rights.
- Lack of Uniformity and Cooperation amongst enforcement Agencies: Intellectual Property is a broad and technical area. Its enforcement cannot be carried out by one regulatory agency alone; the agencies need to work together. However in Nigeria, there is no such cooperation, they also lack a uniform public domain between the agencies to access the data of each agency in enforcing Intellectual property rights.
- Judicial Enforcement: The Nigerian Judicial System is slow and t cases take an inordinate amount of time before coming to a conclusion. This coupled with the technical nature of Intellectual Property Rights, the lack of such technical knowledge by the Judges and the non-observance of judicial orders has further inhibited the effective enforcements of IP rights by the Judiciary. Furthermore the Federal High Court is vested with exclusive jurisdiction over IP disputes. This is a bar to parties exploring Alternative Dispute Resolution (“ADR”).
The Way Forward
Due to the loopholes in enforcing IP rights and resolving IP disputes in Nigeria, it has become necessary that new and alterative procedures need to be considered. These include Arbitrations and Special Courts.
Arbitration according to the Black’s Law Dictionary is a dispute resolution process in which the disputing parties choose one or more neutral third parties to make a final and binding decision resolving the dispute. WIPO has advocated for the use of Arbitration for resolving IP disputes and has gone further to establish an Arbitration & Mediation Centre for resolving IP disputes. It also has in place its Arbitration rules. Discussed here are the advantages of Arbitration over Litigation and why IP disputes should be resolved using Arbitration in Nigeria.
- Technicality involved in Intellectual Property: Intellectual Property is a technical subject matter. Therefore it is a better to use an Arbitrator who has specialised knowledge of Intellectual Property. This is even more so when technical issues like computer programs, Industrial designs, patents etc. are being contested. When parties can choose their adjudicator they have the opportunity of picking one who possesses the necessary technical knowledge.
- Expert determination: Disputing parties can also refer the matter to an expert in the area of dispute for expert opinion, appraisal, valuation or determination to settle a dispute. This expert can act as Arbitrator and the resulting decision is binding on the parties.
- International Nature of Intellectual Property Disputes: IP is by its nature intangible and global unlike other forms of property. It can be exploited and transmitted globally instantaneously. This makes its rights infringeable internationally and disputes are cross borders. Therefore IP disputes are best resolved by Arbitration which is most suitable for International disputes.
- Flexibility of Arbitration: Arbitration by its nature is flexible. The parties can choose the Arbitrator, time, conduct of the proceedings and venue of the proceedings. Also they can choose the applicable law to govern the proceedings. This is important having regards to the International nature of Intellectual Property disputes. Parties do not have to be bound by the local laws of a disputing party.
- The Time Involved and Finality: Arbitral proceedings are fastidious. Parties do not have to go the tedious and formal procedure involved in litigation. Arbitration is expeditious, quick and efficient. This is an advantage for Intellectual Property disputes which are of a technical and economical nature and need to be resolved timeously. Furthermore, contracting parties can resolve that there will be no appeal to the arbitral award. This ensures the dispute will be brought to an end quickly unlike litigation where parties by contract cannot bar an appeal.
- Confidentiality: Arbitration ensures confidentiality between parties. IP disputes may involve trade secrets and commercial benefits. These are better kept confidential in order to avoid being exploited by the public. Arbitration also ensures that parties’ trade reputation is protected and this is a commercial benefit.
Establishing Special IP Courts
A special IP Court is an independent public judicial body that can operate at national or regional levels to adjudicate IP disputes, enforcement of IP rights and incidental disputes. There has been a global trend toward the establishment of specialised IP courts especially in developed Countries. Establishing a specialised Court improves the quality of justice available to litigants. This is because the Judiciary will have vast experience and knowledge in IP. This is unlike non specialised Court where the judiciary may or may not have vast knowledge of IP. Specialised Courts are better equipped to keep pace with and adapt to dynamic developments in Law. Another advantage of specialised Courts is that they allow for timely and cost-effective handling of proceedings and can improve consistency in case Law. Establishing a specialised IP Court or Tribunal in Nigeria will further enhance the effective enforcement and protection of IP rights in Nigeria and it is important considering the fact that some IP disputes are of a criminal nature and thus not arbitrable.
Intellectual Property plays a key role in the economy and development of a Country. Where these rights are adequately protected, enforced and implemented, it has a lot of benefits to the economy and the society at large. Lessons have been learnt form developed countries who have given IP the paramount stage that it deserves. A crucial method of ensuring these rights and enforced and disputes are efficiently resolved is to resort to Arbitration and establish specialised IP Courts. Our Laws should be amended to meet up with dynamic trends in IP, to provide resort to ADR especially Arbitration and Special Courts and Tribunals should be established to ensure speedy and effective trial of IP disputes.