Intellectual property

Intellectual Property Piracy & Counterfeiting In Nigeria

16 Sep

ABSTRACT

The AG of the federation and minister of justice, Abubakar Malami SAN had on the 13th of September 2022, said that the federal government of Nigeria is working to ensure that the country’s Intellectual Property (IP) laws and administration are in line with current realities. Intellectual property rights (IPR) refer to the creation of the mind, inventions, literary and artistic works, symbols, names, and images used in commerce. It’s divided into two broad categories. INDUSTRIAL PROPERTY RIGHTS and COPYRIGHT. Industrial property rights(IPR) include patents for inventions, trademarks, industrial designs, and geographical indications. While COPYRIGHT covers literary works (such as novels, poems, and plays), movies, music, and artistic works such as drawings, paintings, photographs, sculpture, and architectural design; also rights related to copyright include those of performing artists in their performance, producers of phonograms in their recordings, and broadcasters in their radio telecommunication programs. The proliferation of information technology brings about rise in intellectual property (IP)abuses, disregard and working against the legal provisions on Intellectual Property. The federal government of Nigeria said it has signed a Memorandum of Understanding with a UK-based developing Africa group to create Africa’s first intellectual property rights (IPR) commercialization project in Nigeria. Thus, the memorandum will allow the group to use IPR as a means of resolving some of the investment challenges facing Nigeria as well as creating jobs, trade and services. Trade and services are crucial to the promotion of economic development and Nigeria happens to be one of the strongest regional hubs of trade in Africa, being the continent’s biggest economy. It’s no surprise that Nigeria has attracted the world (IP) governing bodies to Abuja as Nigeria hosts one of two world intellectual property offices (WIPO). This will create up to 15,000 jobs across Nigeria for the detection of fake labels and abuse of trademark rights and other (IPR) violation crimes in Nigeria. This article focuses on the impact of intellectual property piracy and counterfeiting in Nigeria as well providing possible solution to the menace of (IPR) violations in Nigeria.

INTRODUCTION

Intellectual property right (IPR) consist in the achievement of gifted people who create, preserve, and express the history and culture of their people, essentially through music, writing, dancing, plays and other ways in order to encourage the creation and dissemination of information and ideas that enrich peoples’ lives. According to Ojiji (1992) stated that people who possesses these wonderful creative and interpretative talent are the country’s cultural workers who write books, compose inspiring music and paints. He further stated that these cultural works of the mind are aptly refers to the intellectual property (IP) and when this property is protected by law then it emerges to what is known as intellectual property rights (IPR). Similarly, According to Akunyili (2010) intellectual property rights are rights conferred on an individual or corporate body with respect to the product of his or her intellect guaranteeing the exclusive control of his or her work for a limited period of time.   

The vitality of intellectual property rights (IPR) is today assuming unprecedented attention nationally and internationally. This is visible in the formation of bodies such as the World Intellectual Property Organization (WIPO), The Nigerian Copy rights Commission (NCC), and many calls for workshops, conferences, and seminars by these bodies. New development in modern science and technology coupled with challenges arising from the competitive nature of international trade vis-a- vis the usefulness of preserving intellectual property rights (IPR) from infringement heightened this upsurge of interest. (Akunyili 2010).

Intellectual Property Rights(IPR) help to attract foreign investment and enhance technological transfer. This is vital because no businessman will try to invest where his trademark, patent, would be abused. The economy of Nigeria is failing because of non-involvement of foreign investors in trade and technology sectors. The reason is partly because of intellectual property (IP) violation and non –governmental seriousness over the violation. Affirming this is a top executive of a German pharmaceuticals company stated:

 “We are not prepared to transfer high technology into a country in which our Intellectual Property Rights (IPR) is not protected and in which we will lose control of it”

One of the usefulness of intellectual property rights (IPR) is that it creates order in the universe of publications, research and inventions and with it plagiarism, piracy; counterfeiting and other abuses are kept at bay as ownership will no longer be contested. Hence, as GROVES (1997) observed that an intellectual property rights (IPR) prevent conflicts among individuals and nations over ownership of intellectual property. Intellectual Property Rights (IPR) encourages innovation and creativity which in turn lead to societal growth and development. Legal protection enables the owner of a work to control the publication or use of his work. In recognizing the rights to creator of a work SAUNDERIS (1992:64) stated thus:

‘’it’s just that an author should reap the pecuniary profits for his ingenuity and labor; no author should use his work without his consent. its fit that he should judge when to publish, its fit whether he will ever publish, its fit he should not only choose the time but the manner of publication, how many, what volume, what print.’’

The promotion and protection of intellectual property rights (IPR) enhances economic growth, create new jobs or new industries which promotes the level of quality of human life. An effective and equitable Intellectual Property Right (IPR) system can help all countries to realize their potentials as a catalyst for economic and social development. EPHRAIMN AFEBENDE AND NKEBEM (1997) Quoted OKOROJI as having lamented thus:

“What started as a personal problem of musicians has become a big problem for investors and book publishers, a problem for motor spare parts, manufactures, counterfeiting has become a national problem, and you now have the option of buying an original work or what was termed as Aba made or pirated works”.

Abuses of intellectual property rights (IPR) exist when these rights are not honored, when legal orders backing them are not in action or flouted. This abuse robs a nation of creativity and encouragement of innovation or economic growth and development. Stating the input of infringement, the Nigeria Copyright Commission (NCC 2018) Quoted Obasanjo as regretting that:

“The damage effects of piracy are visible around us, the waning for creativity, the dearth of well researched books and reading materials in the educational sector”.

COUNTERFEITING AND PIRACY IN NIGERIA FOCUSING ON KEY FACTORS IN NIGERIA.

Statistics shows that several factors contribute to the wide-scale proliferation of counterfeit and pirated products throughout Africa particularly Nigeria including the disproportionate size of its informal economy, corruption, outdated legislations, weak enforcement mechanisms and unawareness among consumers of the risk involved. The most vulnerable sector is the pharmaceutical industry where it’s estimated that up to 30% of medications in the African market are counterfeit and 100,000 people die in Africa per year due to fake anti-malaria drugs alone. Nigeria is the largest market in Africa for counterfeit and pirated products and also serves as a gateway to the rest of the continent for rampant illicit trade. The entertainment industry in Nigeria is also one of Africa’s biggest industries, a report by the NTA in 2008 estimated the total annual loss of the entertainment industry (music, videos, film, art, theater) to be well over N100,000 billion. In 2013 the Nigeria copyright commission (NCC), disclosed that Nigeria is losing over US$1billion to piracy annually.

Creativity and innovation are proven drivers for economic growth and competitiveness. Research has shown that economic growth is related to how well the economy encourages, stimulates, and fosters creativity and innovation. The World Bank estimates that for every legitimate copy sold nine others are pirated and if adequate Intellectual Property Rights (IPR) measures were taken, a million more jobs could be created in the film industry in Nigeria. Several factors hamper the development of strong Intellectual Property Rights (IPR) in Nigeria. One is the cross-cutting nature of (IP) is not sufficiently acknowledged. Another is that, in general (IP) is not accorded a prominent place in national and economic agenda. Moreover, financial and material resources available for (IP) are inadequate. The (IPR) is the only way to protect authors’ creativity and ensure the security of national intellectual treasures and resulting economic profit. Without adequate protection, owners of (IP) suffer economic loss and government is denied revenue from legitimate production. Many experts believe that a modern and well managed (IP) system could be the catalyst for economic growth, with a population over 200million; Nigeria is likely to generate more revenue in the exploitation of its (IP).

The astonishing damage piracy and counterfeiting is doing to the Nigerian economy affects important industries such as entertainment, textile, pharmaceuticals industry and many others. According to the chairman of Longman Nigeria PLC Emmanuel Ijewere said: 

Authors and producers in the Entertainment industry have lost over 81 billion to counterfeiting and piracy, This circumstances has discourage Nigerian authors from producing new materials since they feel that their work yield more profit to piracy and counterfeiting!

In the textile industry for example, the United Nations Industry Development Organization reported that, since 2000 more than 70,000 Nigerians working in the textile industry lost their jobs due to the accelerated closure of many manufacturing firms caused by the invasion of the market by cheap counterfeiters. The strength of a countries (IP) regime is among the factors that influence firms to transfer technology or invest in a country. For example the Organization for Economic Co-operation and Development (OECD) has found that the strength of a country’s patent right is positively correlated to inward Foreign Direct Investment (FDI). Economist found that 1% increase in a country’s patent protection correlates to a 2.8% increase in a country’s FDI. The OECD’s Global Competition index takes into account (IP) protection as a pillar of a country’s competitiveness and attraction and in 2012 Nigeria’s (IP) protection and Competitiveness was ranked 110 and 115 out of 144 countries respectively but in 2014 the index decrease and Nigeria was ranked 126 and 127 respectively, this shows the effect that (IP) has in the microeconomic performance.

PROBLEMS ASSOCIATED WITH COUNTERFEITING AND PIRAVY IN NIGERIA.

While legitimate market has grown, counterfeiters have also recognized these opportunities and Nigeria  has become both target destination and transit route for knock off goods. Cheap or substandard products are flooding the market through foreign and local traders. The infiltration of counterfeit medicine in Africa most especially Nigeria is of particular concern. The British Think Tank International Policy Network (IPN) estimates that globally fake drugs and tuberculosis drugs cause 700,000 deaths a year, a death toll comparable to “four fully laden jumbo jets crashing every day”

In 2001 approximately 68% of medicines in circulation in Nigeria were unregistered and as much as 41% were believed to be fake. Thus, fake drugs are not the only counterfeit problems in Nigeria. Also, cheap counterfeit electronics and electrical components, software, are flooding Nigerian market putting consumers at higher risk. When consumers pay the same price for both genuine and counterfeit goods they are often unaware that they are buying a fake product that may not only be vastly inferior but in certain cases even harm them.

The US department of commerce estimated that Nigeria was the largest market in Africa for goods that infringe on (IPR). Brand owners suffered with no protection. There is also no serious protection by judicial precedent coupled with slow court proceedings. Thus, eroding brand equity in case of disputes and public awareness of the dangers of counterfeiting and the effect on the revenue of Nigeria. Lack of (IPR) protection, forces investors to move their businesses to other better structured (IPR) jurisdiction resulting in loss of jobs and government revenue through nonpayment of taxes. The development and protection of (IPR) will highly encourage (FDI) and could make Nigeria a hub for investment opportunities. Lawyers are encouraging the federal government of Nigeria to enforce the country’s (IP) laws to protect individuals creative output.

 POSITIVE PROGRESS MADE IN PIRACY AND COUNTERFEITING IN NIGERIA.

According to (WIPO) 2012 report, Nigeria IP protection situation has recently witnessed some remarkable progress. For example the Nigerian Copyright Commission (NCC), ensured increase in the prosecution of copyright infringement. The (NCC) had undertaken more than 26 anti-piracy and counterfeiting raids, made more than 145 arrests and seized over 6million pirated works including films, sound recording books, software and broadcast equipment with street value of over US $4.8 MILLION. Since December 2010, the (NCC) has intensified its copyright enforcement and anti-piracy activities. In January 2012, the Commissionpublicly destroyed some 722MILLION pirated works confiscated in anti-piracy and counterfeiting raids between 2007 and 2011. Furthermore, on the 27th July 2014 (NCC) launched a new online registration system called “The Nigeria E-copyright Registration system” (NeCRS) which seeks to improve on the existing optional copyright notification scheme. The plan was established to enable the creators of copyright or persons who have acquired rights in these works to register their interest with NCC. Also the Nigerian Government introduced the copyright (Optional Discs Plants Regulation) 2016 which mandates that all discs manufacturing companies In Nigeria need to register with the (NCC) and meet required conditions for operation.

 CONCLUSION 

Businesses must constantly innovate to contribute to the success of today’s economy. However, weak (IP) regimes discourage such innovation. Every naira that is earned from counterfeit products is a naira stolen from the original intellectual property owner. The strongest tool with which to restore Nigeria’s intellectual property centers on strong enforcement regime and legislative policy. Legislative recommendation for a healthy (IP) regime in Nigeria include improving enforcement procedures, strengthen local legislation and ratify international (IP) agreement, enacting laws against internet piracy, fraud tightening borders and addressing deficiencies in our criminal procedures. Adopting a collaborating inter-agency approach with regulatory and private sector players, expanding capacity building as it relates to (IP) rights and increasing public awareness. Similarly, dispute resolution mechanisms should be adopted in settlement between parties. Examples are reconciliation, mediation, arbitration, small claims and committees. Government could offer ss portal to submit and manage request along with detailed guides and video tutorials. Government agencies could track (IP) statistics to understand current trends and support decision makers in making decisions. Thus, Government could also inform the public on the dangers of IP infringement on society and consumers health and empower the public with information on how to report cases of (IP) infringement via dedicated information centers, guides and case studies.

HASSAN SADISU IMAM is a Lawyer who graduated from the prestigious Ahmadu Bello University Zaria Kaduna Nigeria; He has a keen interest in Constitutional Law and Various aspects of Commercial Law. He has authored many articles on diverse contemporary legal issues; He can be reached via,

Tel: 09023945495

Email: hassanlimanesq@gmailcom                     

  REFERENCES

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