Laws Regulating Intellectual Property In Nigeria

By Joy Ayara

In understanding Intellectual Property Law, you would need to consider the terms literally. “Intellectual’, gotten from the word “intellect”, means “of the mind”. “Property”, on the other hand, deals with personal belongings, or products belonging to a person (in the broader sense).

Intellectual Property is therefore any innovation, creation, or product of the mind. Thus, it includes but is not limited to, literal works, designs, marks, inventions, and trade secrets, amongst other things. Intellectual Property laws are those laws that regulate every process of ownership, protection, registration, assignment and licensing (etc.) of IP rights.

There are several laws regulating the different types of Intellectual Property in Nigeria. Presently in Nigeria, there are 3 major laws relating to Intellectual Property. There are the Copyright Act, Chapter C28 Laws of the Federation of Nigeria 2004; the Trademarks Act, Chapter T13 Laws of the Federation of Nigeria 2004; The Patents and Designs Act, and Chapter P2 Laws of the Federation of Nigeria 2004.

There are however 4 categories of IP protections in Nigeria today which are;

• Copyright
• Trademark
• Patent
• Industrial design

Although not governed by any statutes, another Intellectual Property recognized in Nigeria is Trade Secrets.

Let’s consider this scenario

The Wealthy Vineyard Corp (aka TWV) just produced an App that can detect when a plant is malnourished and prescribes what nutrient should be given to the plant, and in what dosage, so as to revive the plant. In a bid to achieve this goal, they also invented the machine called the AG regulator which would help regulate the nutrients in the soil. This machine, had a very beautiful aesthetic feature, T-feature, which made it very stylish and functional. TWV Corp also wrote a detailed book on how to grow crops fast, with minimum loss. Finally, in a bid to stand out, TWV Corp, designs a logo, that is plastered on all their products, so as to let their customers know which product is theirs. After a while, the corporations started making their special beverage, which made great sales after the first year.

With the aid of the scenario above, we can now go on ahead to explain the different kinds of Intellectual Property law in Nigeria.

Copyright

Copyright protection simply protects the original work of artists, literary producers, filmmakers, songwriters, etc. Copyright is regulated by the Copyrights Act 2004. Copyright entails the following;

• Literary work, such as novels, computer programs, and choreographic work.
• Musical works of musical artists.
• Artistic works of painters, sculptures, woodcarvers, etc.
• Cinematographic works, from filmmakers and documentaries.
• Sound records, such as recordings from cinematographic films.

From the above scenario, you can observe that the book written by TWV Corp can be protected by Copyright laws, as it will give them complete ownership of the book. This book falls in the category of literary works. The application of TWV will also be regulated by the Copyright act as it consists of a series of written programs, and falls squarely under the ambit of copyright. Once this Copyright has been registered, it would confer some rights on the person who authored the book, in this case, the Corporation who wrote the book.

It is important to note that copyright usually exists in an authored work the moment it is created. So, the work doesn’t necessarily need to be registered with the Nigerian Copyright Commission (NCC) for it to be recognized or protected. However, because the NCC runs a depository (and notification) scheme, authors of these works would have to register or give notification to the NCC of the work they created. The purpose of this notification is to inform or notify the NCC of the existence of literary work. An application is made by the author of this literary work to the NCC, after which a certificate to that effect will be issued.

It is instructive to note that, like all other properties that can be transferred, works within the category of Copyright can also be assigned to another.

Trademark

A Trademark is yet another area of IP that is recognized in Nigeria. It consists of marks, names, and symbols of a particular company, institution, non-profit, etc, to help these organizations have an identity for their products. Trademark, therefore, becomes a very valuable asset of the organization as it the organization’s reputation and brand.

Notably, the law that regulates trademarks in Nigeria is the Trademark Act 2004. An unregistered trademark is regulated by the received English Common laws, applicable to Nigeria.

Using the scenario above, you can see that TWV would have to register its name: The Wealthy vineyard Corp, and its Logo. Even the name Acronym TWV, would also need to be registered. Why is it important for them to register the name and logo? Because, as was earlier mentioned, their name and logo are the brand identity of the organization, and for TWV to have exclusivity over that name and logo, they would have to register their trademark. Registration of trademarks is done at the trademark Registry. The validity of registration of a trademark lasts for 7 years and is subject to renewal, according to the regulation of the Act.

Patent

A Patent is a regulation on the monopoly of an invention. The Patent protection of an organization is regulated by the Patent and Design Act 2004. This law regulates the registration, control, and all practices of patents in Nigeria. The patent basically covers inventions such as machines and computer gadgets. For an invention to qualify for a patent, it needs to meet the criteria below:

• It must either be a new/novel invention, or it is an improvement on an invention that has already been given a patent.
• It must be a result of an inventive Activity.
• It must have an industrial application.

Considering the scenario given above, you can see that the AG regulator, falls under the purview of the Patent and Design Act. What will then make the AG regulator qualify for a Patent is if it is new if it was a result of an innovative process or activity, and if it has an industrial application. If the TWV can answer all these questions in the affirmative, then that machine will qualify for a Patent.

Once a Patent has been approved, it will be applicable for 20 years, after which it will be put in the public domain.

Industrial Design

Industrial Design focuses mainly on any aesthetic feature of a company or organization. According to the Patent and Designs Act, an industrial design includes any colours, combination of lines (or even both), or three-dimensional forms (whether having colours or not), of which is the intent of the maker to use as a model or pattern, which will be multiplied by the industrial process. Simply, an industrial design is an aesthetic feature that makes the product identifiable in the market.

It is important that an industrial design is moral and not contrary to the public, otherwise, it will not be accepted for registration. Yes, it is compulsory to register the industrial design, and the registration lasts for a period of 5 years. It is then renewed twice, for a period of 5 years each.

The registration of the Industrial design is done by the Registrar of Patent and Designs, after which a certificate will be handed to the creator of the creators of the design.

Trade Secret

A Trade secret is yet another aspect of IP that is applicable in Nigeria. Although not protected by any extant law, it, however, has become a practice in Nigeria. Trade secrets are secrets of a product that has been authored by an organization. Trade secrets as the name implies are unique ways in which a company has produced a particular product[1].

In the above scenario, you will observe that TWV made a particular drink that was unique. In this instance, they would have to protect the trade secret with respect to the product that they made.

Some other examples of trade secrets would include, methods and processes of making a product, engineering information, financial information, unpublished patents, etc.

How then can you protect your Trade secrets, seeing that there are no extant laws guiding the regulation of trade secrets? The most common way of protecting your trade secret is by entering an agreement with employees for non-compete and confidentiality, just to mention a few.

CONCLUSION

It is very important to note that every form of IP practice has with them transferable attributes. Meaning, therefore, that they can be licensed or transferred to another party.

These forms of IP mentioned above are the major IP practices that are recognized in Nigeria presently. While they do not cover all aspects of Intellectual Property, they, however, are very pivotal in the development and advancement of IP practices in Nigeria.

SNIPPET

It is important that an industrial design is moral and not contrary to the public, otherwise, it will not be accepted for registration. Yes, it is compulsory to register the industrial design, and the registration lasts for a period of 5 years. It is then renewed twice, for a period of 5 years each.

Key terms: Intellectual property, Copyright, Industrial design

[1] Trade Secrets: What Your Company Needs to Know: by John F. Hornick. Retrieved from, https://www.finnegan.com/en/insights/articles/trade-secrets-what-your-company-needs-to-know-1.html.

Credit:TNL