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HomeNewsINTELLECTUAL PROPERTY PIRACY AND COUNTERFEITING IN NIGERIA BY HASSAN SADISU IMAM

INTELLECTUAL PROPERTY PIRACY AND COUNTERFEITING IN NIGERIA BY HASSAN SADISU IMAM

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By Hassan Sadisu Imam

INTRODUCTION

Intellectual property rights (IPR) refers to the creation of the mind, inventions, literary and artistic work, symbols, and names, images, used in commerce. It’s divided into two broad categories. Industrial property rights and copyright.

Industrial property rights include patents for inventions, trademark, industrial design and geographical indications. While copyright covers literary works (such as novels, poems, and plays) films, music, artistic work such as drawings, paintings, photographs, sculpture and architectural design, also right related to copyright include those of performing artist in their performance, producers of phonograms in their recording and broadcasters in their radio telecommunication programs.

The proliferation of information technology brings about rise in intellectual property abuses, disregard and working against the legal provisions on intellectual property rights.Recently in 2022 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 rightsCommercialization 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 and trade services.

Trade is crucial to the promotion economic development and Nigeria happens to be one of the strong regional hubs of trade in Africa being the continent biggest economy. It’s no surprise that Nigeria has attracted the world IP governing bodies in Abuja as Nigeria hosted 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 will focus on the challenges of IPR in Nigeria as well try to come out with possible solutions on how to tackle the problems of intellectual property rights in Nigeria.

WHAT IS INTELLECTUAL PROPERTY RIGHTS?
Intellectual property right 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 and when this property is protected by law then it emerges to what is known as intellectual property rights.

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.

IMPORTANCE OF INTELLECTUAL PROPERTY RIGHTS
The vitality of intellectual property rights 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 from infringement heightened this upsurge of interest. (Akunyili 2010).

Intellectual Property Rights 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 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 is that it creates order in the universe of publications, research and inventions and with it plagiarism, piracy, and other abuses are kept at bay as ownership will no longer be contested. Hence as GROVES (1997) observed that an intellectual property rights prevent conflicts among individuals’ and nations over ownership of intellectual property. Intellectual Property Rights encourage innovations 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 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 system can help all countries to realize their potential 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 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 AFRICA FOCUSING ON KEY FACTORS IN NIGERIA.
Statistics shows that several factors contribute to the wide-scale proliferation of counterfeit and pirated products throughout Nigeria and Africa including the disproportionate size of its informal economy, corruption, outdated legislation, 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 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. Several factors hamper the development of strong Intellectual Property Rights in Africa and Nigeria in particular. 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 in African countries. moreover financial and material resources available for IP is 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 Africa particularly 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.

According to estimate by WHO 30% of medications on the African market are counterfeit, more than 584,000 malaria death globally each year 90% occur in Africa and WHO estimate fake anti-malaria drugs alone kill 100,000 in Africa annually and the market deprive government of 25% to 50% of their legitimate revenue.

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!”

The US National Institute for Health found after analyzing data from 21 sub-Saharan African nations that 35% of anti-malaria drugs failed chemical testing because they were poorly manufactured while another 20% were complete fakes. In July 2012 a major sweep across 16 seaports on the east and west coast of Africa by the World Customs Organization (WCO) seized more than 82million doses of illicit drugs with an estimated value of US $40MILLION.

Among the fake drugs confiscated in the raid included cough syrup, anti-malaria and anti-parasitic drugs, anti-biotic and even contraceptives. Similarly, in West Africa health and law enforcement officials in coordination with WHO and INTERPOL has been running Multi -country operations aimed at disrupting transnational criminal networks for fake drugs. An operation in 2011 “COBRA” resulted in the seizure of 170 tons of counterfeit and illicit medical products and during the latest operation in 2014 called “PORCUPINE” nearly 200 tons of illegal medicines were seized with an estimated value of approximately US $25MILLION.

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 Africa, also cheap counterfeit electronics and electrical components, software, are flooding African and 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.

In 2008 for example fake cosmetics circulating in Darussalam Tanzania were found to cause skin cancer and severe nerve tissue damage. Counterfeiters were producing home-brewed concoctions and repacking them into original packages in order to sell them at higher prices. Exacerbating the problem Saloon Owners and workers did not know how to differentiate between counterfeit and genuine cosmetics.

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 INTELLECTUAL PROPERTY PROTECTION IN NIGERIA.
According to WIPO 2012 report Nigeria IP protection situation has recently witnessed some remarkable progress. For example the NCC ensured increase in the prosecution of copyright infringement. The NCC had undertaken more than 26 anti-piracy 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 NCC publicly destroyed some 722MILLION pirated works confiscated in anti-piracy 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.

LAWS AND BODIES GOVERNING INTELLECTUAL PROPERTY RIGHTS IN NIGERA
1. Copyright Act (as amended) CAP 28 Laws of the Federation of Nigeria 2004.2. Patent and Designs Act CAP P2 Laws of the Federation of Nigeria 2004.3. Trademark Act CAP T 13 Laws of the Federation of Nigeria 2004.4. Merchandise Marks Act CAP M 10 Laws of the Federation of Nigeria 2004.5. Trade Marks Act (Miscellaneous Offences) Act CAP T 12 Laws of the Federation of Nigeria 2004.

Some of the bodies established to govern intellectual property rights in Nigeria include.
1. The Nigeria Copyright Commission Established under the copyright act to regulate creative activities such as music, publishing of artistic and literary works.

2. The Nigeria Broadcasting Commission (NBC) the responsibility of the commission is to receive process and consider applications for the establishment, ownership or operation of radio and television stations including cable television services, direct satellite broadcast and any other medium of broadcasting radio and television stations.

3. The trademark, patents and design Registry Established pursuant to the trademarks Act and the patents and design act under the federal ministry of commerce to regulate the filing of trademark, industrial design as well as grants of patent in Nigeria.

4. National Office For Technology Acquisition and Promotion (NOTAP) Established under the NOTAP ACT Cap 62 Laws of the federation of Nigeria to register service agreement, technology transfer and know-how agreement between Nigeria and non-Nigerian parties.
Several other non-governmental Institutions have also been formed to support the above governmental bodies in the facilitation and enhancement of IP rights such as the following:

1. Intellectual Property Lawyer Association of Nigeria.

2. The Nigeria Local Chapter of the International Association for the Protection of Intellectual Property.

3. Anti-Counterfeiting Collaboration of Nigeria (ACC)

4. The Performing Musician Association of Nigeria.

5. Copyright Collecting Societies.

6. Federation of Intellectual Property Owners (FIPO).

RECOMMENDATIONS
1. Improve and expedite civil judicial enforcement procedures.

2.  Strengthen IP legislation and ratify IP international agreement.

3.  Improve border enforcement.

4. Address deficiencies in criminal procedure.

5. Established an inter-agency approach and enhance collaboration between NigerianRegulatory Agencies administering and enforcing IP laws.

6. Increase public and political awareness of counterfeiting and piracy and its effect on economic and social matters.

7. Research and make information available on technical tools and systems for prevention and investigation purposes including tracking and tracing systems which will help to distinguish genuine from counterfeit products.

8. Enhance the deterrent effect of penalties by introducing higher maximum fines and imprisonment terms.

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.

Policy recommendation include 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 IP e-service 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.

REFERENCES
“Piracy: Nigeria PC users Ranked 2nd Highest” Vanguard (2011), Available at http://www.vanguardngr.com/2011/09/piracy-nigeria-pc-users-ranked-2nd-highest 

The Problem of Substandard Medicines in Developing Countries: Workshop in International Public Affairs, University of Wisconsin System (2012), P. 29-30, Available at http://www.lafollette.wisc.edu/images/publications/workshops/2012-medicines.pdf   

New Development and Challenges In the Protection of Intellectual Property Rights (IPR) A Nigerian Perspective. WIPO (2001) Available at http://portal.unesco.org/en/files/11610/10515189411sof01-2-7.pdf/sof01-2-7.pdf

National Office for Technology Acquisition and Promotion http://www.notap.gov.ng/content/technology-transfers.

World Intellectual Property Report “The changing face of Innovation” WIPO (2011), available at http://www.wipo.int/edocs/pubdocs/en/intproperty/944/wipo-pub-9444-2011.pdf

World Investment Report 2012 UNCTAD (2012) available at http://www.unctad-docs.org/files/UNCTAD-WIR2012-Full-en.pdf
Intellectual Property: Powerhouse For  Innovation and Economic Growth “International Chamber of Commerce (2011) available at http://www.iccwbo.org/date/document/intellectual-property/ip-powerhouse-for-innovation-and-economic-growth/

The Impact of Intellectual Property Infringement on Businesses and the Nigerian Economy. www.pwc.com

HASSAN SADISU IMAM

hassanlimanesq@gmail.com

09023945495

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