Intellectual Property Protection remains a topical issue, particularly with the emergence of novel niches such as content creation and social media influencing the entertainment industry. Intellectual Property (IP) protection is however not limited to creatives in the entertainment industry as creators in science and other spheres are also generally entitled to IP protection under relevant laws and regulatory bodies.
Now, what is Intellectual Property? According to the World Intellectual Property Organization(WIPO), Intellectual Property refers to creations of the mind, such as inventions; literary and artistic works; designs and symbols, names and images used in commerce.1 Simply put, ownership of intangible property (including scientific discovery, innovations, artistic creation and performances, music etc.) is classified as Intellectual Property as they are creations or products of the mind and intellect. Essentially, an owner of a property whether intellectual(intangible) or physical(tangible) is entitled to a fair use and enjoyment of his or her property without disturbance or theft by another. This fundamental provision is enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Following this, there are specific international and local legal frameworks, resolutions, treaties and conventions for the protection of the Intellectual Property of creatives. This article purports to examine some of these legal frameworks and the mechanisms for enforcement of the attending rights.
WHO IS A CREATIVE?
A person with the ability to invent and develop original ideas.2 A person can be termed a creative on the premise of his/her ability to invent, create and innovate. This covers all spheres including entertainment, science and arts.
WHAT ARE THE FORMS OF INTELLECTUAL PROPERTY(IP)
The diverse expressions of creativity can be classified into the following forms/types:
- Copyright
- Trademark
- Patent
- Trade secret
- Industrial designs
- Geographical indications.
WHAT IS COPYRIGHT?
Copyright is the rights that creatives have in their literary, artistic or scientific works. These rights can be classified as economic and moral. The economic right of a creative is essentially the right of said creative over the distribution of his or her work and the economic/financial benefit accruing from it. Creatives in the exercise of their economic rights can restrict the use of their work without permission. The moral right of a creative is the right of said creative to be acknowledged as the creator, inventor or author of a work.3
WHAT CAN BE PROTECTED BY COPYRIGHT LAW IN NIGERIA?
The Nigerian Copyright Act 2022, (The Act) provides that literary works, musical works, artistic works, cinematography films, sound recordings and broadcasts are eligible for Copyright.4 Following this, creators of works under the above listed are entitled and eligible for copyright. The Act provides automatic protection to completed works under any of the above categories.
WHAT ARE THE EXTANT LAWS ON COPYRIGHT IN NIGERIA?
The Nigerian Copyright Act 2022 is Nigeria’s primary legal framework for copyright. The Act establishes the Nigeria Copyright Commission being the regulatory body for the protection and enforcement of copyright. Furthermore, Nigeria is a signatory to several international treaties, conventions and resolutions including; the Berne Convention, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.
WHAT IS TRADEMARK?
A trademark is a sign capable of distinguishing the goods or services of one enterprise from those of other enterprises. Simply put, a brand’s symbol that sets it apart from other brands can be seen as a trademark. Trademarks are required to be unique and distinctive.
It can be a logo, a mark, a sign, a colour, or a sound.
REQUIREMENTS/PROCEDURE FOR TRADEMARK REGISTRATION
The requirements for registration of a trademark are as follows:
- Availability Search: The first step in registering a trademark is to conduct a search to determine the availability of the intended or proposed trademark. A trademark may be refused where it closely resembles an already existing trademark, it is deceptive or misleading, or it is offensive, amongst others.
- Filing of Application: An application is to be filed at the Trademark Registry, said application should contain personal details of the applicant, the proposed trademark and the nature of goods or services the trademark intends to protect. The application fee is paid for at this stage.
- Examination of Application: Sequel to a successful application, the Trademark Registry is obligated to examine the application to determine compliance with all the regulatory requirements.
- Publication of Proposed Trademark and Opposition: Where the Registry is satisfied that regulatory requirements have been complied with; a publication is done to inform the general public of the proposed registration. Contentions and opposition to the registration may be received and heard within two (2) months.
- Trademark Certificate: In the absence of a legitimate opposition to the published application, the Trademark may be duly registered, and a Certificate of Registration issued to the brand.
A duly registered trademark enjoys legal protection for a term of seven (7) years after which it may be renewed.
WHAT ARE THE EXTANT LAWS ON TRADEMARK REGISTRATION IN NIGERIA?
The Trademark Act Cap T13 Laws of the Federation of Nigeria, 2004 is the primary legislation governing trademarks in Nigeria. The Merchandise Marks Act, Cap M10 LFN,2004 is also relevant legislation for Trademark registration in Nigeria. Furthermore, the Trademark, Patent and Design Registry under the Commercial Department of the Ministry of Trade and Investment is the regulatory body for the regulation, enforcement and protection of trademarks in Nigeria.
PATENT AND DESIGN
According to the World Intellectual Property Organization, a Patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. A patent may be granted on a novel invention or an improvement on an existing invention that is capable of industrial application5. Patents in Nigeria have a validity period of twenty (20) years after which they expire.
The fundamental distinction between Patents and Designs is that a patent is the exclusive right granted to an invention while Designs rights protect and cover the appearance, form and outlook of an invention. Designs are registrable where they are new and not contrary to public order or morality.6
EXTANT LAWS ON PATENTS AND DESIGNS IN NIGERIA
The Patents and Designs Act, Cap p2, LFN, 2004. is the primary regulation on Patents and Designs in Nigeria.
REQUIREMENTS/PROCEDURE FOR GRANT OF PATENT
Application: An application for grant of patent is made to the Registrar and the said application should contain the personal details of the applicant, a clear description of the invention and payment of the requisite fees. A patent application can only be made on one invention at a time.
Examination of application: The Registry would upon receipt of the application, examine the patent application to ensure compliance with the regulatory requirements for a grant of patent. Where there is a failure in compliance, the Registry may reject the application. The requirements are as spelt out in Section 3 of the Patent and Designs Act.
Grant of patent: Where the regulatory requirements are duly complied with, the patentee shall be granted the patent and issue the attending document.
REQUIREMENTS/PROCEDURE FOR GRANT OF DESIGNS RIGHT IN NIGERIA
The procedure for recognition of Design is essentially similar to the procedure for a patent application. The sole distinguishing procedure is the publication of the certificate details sequel to the registration and grant of Certificate of Registration to the applicant as provided for in Section 17 of the Patents and Designs Act.
CONCLUSION
As a nation, it is commendable that we recognize and protect intellectual property (IP) and creativity. Such protection and recognition of rights can help foster creativity and contribute to economic and societal growth. However, enforcing these IP rights remains a persistent problem. Despite amending existing laws and creating new statutes, IP theft continues to be a bottleneck that has not yet been fully addressed. It is hoped that enforcement agencies will become more proactive in addressing this issue.
Footnotes
1. https://www.wipo.int/about-ip/en/
2. https://www.collinsdictionary.com/dictionary/english/creative
3. wipo_hub_450_2020
4. Section 1. Nigerian Copyright Act,2022.
5. section 1, Patents and Designs Act Cap p2, LFN, 2004
6. Section 12, Patents and Designs Act Cap p2, LFN, 2004.
