Strengthening Intellectual Property Rights And Protection In Nigeria

LESSONS FROM OTHER DEVELOPING AND EMERGING ECONOMIES

In Nigeria, a two-pronged approach is required to address the problem with IPR protection and enforcement. Firstly, the whole framework of IPR administration requires overhauling. The current state where the Trademarks, Patents and Designs Registry still operates manual record system, and is managed as an underfunded appendage of the Ministry of Commerce and Investment must be addressed immediately. Leading Intellectual Property Offices (“IPOs”) are not organized the way the Nigerian IPO is currently organized and this may explain the poor state of things in Nigeria, compared to those other countries.

For instance, in the United States of America (“US”), although the US Patents and Trademarks Office (“USPTO”) is an agency within the Department of Commerce, it is operationally independent and is only subject to the policy direction of the Secretary of Commerce in carrying out its functions. Section 1 of Title 35 U.S. Code stipulates that, it shall retain responsibility for decisions regarding the management and administration of its operations and shall exercise independent control of its budget allocations and expenditures, personnel decisions and processes, procurements, and other administrative and management functions in accordance with this title and applicable provisions of law. Its Headquarter comprises 18 buildings in Arlington, Virginia covering about two million square feet of office and related space and housing an estimated 7,100 employees.

Due to the peculiarities of the Nigerian socio-political system, a similar structure as that of the USPTO is advocated for the country. It is noted that this suggestion is not novel or recent as a bill for the establishment of an Industrial Property Commission, similar in function and power to the Nigerian Copyright Commission, has been developed as far back as 2006. A version of the bill is currently before the National Assembly and it is hoped that it will be treated with the requisite level of importance and urgency it deserves.

The second approach is the review of the legal framework and the legislation constituting the legal framework, not only to make substantive provisions for the rights of creators but also to provide an efficient enforcement and deterrent system for the protection of those rights.

Such enforcement system will involve granting relevant law enforcement agencies, particularly the Nigerian Police Force and the Nigeria Customs Service, necessary powers to carry out their policing and prosecution functions. Instances where they may conduct a raid should be clearly delineated and the process for obtaining a search and seizure order should be significantly simplified.

The underlying problem that the foregoing, however, identifies is the dearth of an IP policy for the nation. Successive Governments have failed to understand the critical role that the protection and enhancement of IPR plays in the achievement of the industrial and commercial development of a country.

There are lessons to be learnt by Nigeria from emerging markets such as China and India, where IP has contributed immensely to the harnessing of talents; development of technical know-how; specialization in the production and exportation of modern technologies and overall growth and development of the economy.

In a 2015 Working Document by the European Commission (Brussels, 1.7.2015 SWD [2015] 132 final), studying the IP regimes in about 40 countries that have trade-relationships with European Union (EU) members; both China and India were rated high in Countries’ Ranking for the development of “solid and predictable IPR frameworks that create environments conducive to innovation and sustainable growth and offer effective enforcement”.