MEANING, NATURE AND SCOPE OF INTELLECTUAL PROPERTY LAW IN NIGERIA

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. This gives economic incentive for their creation, because it allows people to profit from the information and intellectual goods they create. These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators.

The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is “indivisible”, since an unlimited number of people can “consume” an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation: a landowner can surround their land with a robust fence and hire armed guards to protect it, but a producer of information or literature can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods’ wide use is the primary focus of modern intellectual property law.[1]

Intellectual property is so broad that it has many aspects, yet it is an area of law that has not been fully explored by a nation like Nigeria[2]. It stands for groupings of rights which individually constitute distinct rights. However, its conception differs from time to time. It is subject to various influences. The change in information technology, market reality (globalization) and generality have affected the contents of intellectual property. For instance, in olden days-because of religion creation of life, say plants or animals were not protected. Thus, defining IP is difficult as its conception changes. It is diverse, challenging and has application in own day today life.

Intellectual property, as a concept, “was originally designed to cover ownership of literary and artistic works, inventions (patents) and trademarks”. What is protected in intellectual property is the form of the work, the invention, the relationship between a symbol and a business. However, the concept of intellectual property now covers patents, trademarks, literary and artistic works, designs and models, trade names, neighboring rights, plant production rights, topographies of semi conductor products, databases, when protected by a sui generis right, unfair competition, geographical indications, trade secrets, etc.

Those types of intellectual property have been characterized as “pieces of information which can be incorporated in tangible objects at the same time in an unlimited number of copies at different time and at different locations anywhere in the world”. In other words, intellectual property rights are intangible in nature, different from the objects they are embodied in. The property right is not in those copies but in the information which creates in them.

To some extent you may already know the answer to this question. We know that the inventor of a machine, the author of a book, or the writer of music somehow usually ‘own’ their work. From this ownership, certain consequences flow and you probably have been made aware of the fact that we cannot just copy or buy a copy of their works without consideration of their rights. Equally, original industrial designs of furniture, wallpaper and the like seem naturally to be owned by someone or some organization. Each time we buy such ‘protected’ items, a part of what we pay goes back to the owner as recompense for the time, money, effort and thought they put into the creation of the work. This has resulted over the years in the development of industries such as the music industry growing worldwide and encouraging new talent to produce more and more original ideas and articles. Let’s begin with a more formal definition of intellectual property, so as to build a solid foundation for later explanations of the various types of intellectual property, and then the relevant governing international treaties.

The best place to start is with a consideration of the meaning of the word property, and thereafter, Intellect or intellectual. Thus property is defined as anything owned by a person or entity.[3] It was also defined as anything that a person or business has legal title over.[4] The outstanding features that most types of property share are that the owner of the property is free to use it as she/he wishes, provided the use is not against the law, and to exclude others from so using that owned item of property. Intellectual on the other hand describes something or anything related to or using the mind or intellect.[5]

Now the term “intellectual property” is reserved for types of property that result from creations of the human mind, the intellect. Interestingly, the term intellectual property in the Convention Establishing the World Intellectual Property Organization, or “WIPO”, does not have a more formal definition. The States that drafted the Convention chose to offer an inclusive list of the rights as relating to:

“Literary artistic and scientific works; performances of performing artists, phonograms, and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and “all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”[6]

Intellectual Property refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.[7] Thus IP is a section of law which protects creations of the mind, and deals with intellectual creations.

From another angle, Intellectual property, or IP as it is commonly referred to, consists of all the pieces of your business that you or your employees have thought of. It’s the things that differentiate you from the competition that you came up with using your intellect – your brain.[8]

Also, the term “Intellectual Property Rights” refers to the legal rights granted with the aim to protect the creations of the intellect. These rights include Industrial Property Rights (e.g. patents, industrial designs and trademarks) and Copyright (right of the author or creator) and Related Rights (rights of the performers, producers and broadcasting organisations).[9]

Generally speaking, IP law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time- limited rights to control the use made of those productions. These rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. IP is traditionally divided into two branches: “industrial property and copyright”. Thus, Intellectual property shall include rights relating to:[10]

1.   literary, artistic and scientific works:

2. performances of performing artists, phonograms and broadcasts;

3. inventions in all fields of human behaviour;

4.     scientific discoveries;

5.      industrial designs;

6. trademarks, service marks, and commercial names and designations;

7.   protection against unfair competition and all other rights resulting from intellectual activity in industrial scientific, literary or artistic fields”.

The areas mentioned under (1) belong to the copyright branch of intellectual property. The areas mentioned in (2) are usually called “neighboring rights”, that is, rights neighboring on copyright. The areas mentioned under 3, 5 and 6 constitute the industrial property branch of IP. The areas mentioned may also be considered as belonging to that branch.[11]

In Nigeria, there is a major conventional mode of classification of intellectual property as Copyrights, Patent, Trade Marks, and Industrial Design.

Copyright: A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of literary, artistic, creative, intellectual, or artistic forms, or “works”.[12] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.

Note that copyright protects works, that is the expression of thoughts, and not ideas. So if you imagine a plot, this, as such, is not protected. For example, a plot consisting of a story about young men and women falling in love despite family and caste obstacles would not be protected. Different writers may build stories based on a similar plot. But when you express it in a synopsis or in, say, a short story, or a play, the expression of the plot in that story will be protected. Hence, for example, Shakespeare’s play Romeo and Juliet would be considered as a creative expression of that plot. Still, other writers may build new stories based on a similar plot.

Patents: A patent is a form of right granted by the government to an inventor or their successor-in-title, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfill three main requirements: it has to be new, not obvious and there needs to be an industrial applicability. To enrich the body of knowledge and stimulate innovation, it is an obligation for patent owners to disclose valuable information about their inventions to the public.

Example of inventions: electric iron, safety pin, ball point pen, telephone, etc.

Industrial design rights: An industrial design right (sometimes called “design right” or design patent) protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.[13] Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.

Trademarks: A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from similar products or services of other traders. Trademark may consist of, for example, a word, a logo, a number, a letter, a slogan, a sound, a color, or sometimes even a smell or texture and which is used to identify the source of goods and/or services with which the trademark is used. When a trademark is used in connection with services, it is sometimes referred to as a “service mark”.

It is both just and appropriate that the person putting in the work and effort into an intellectual creation has some benefit as a result of this endeavor. By giving protection to intellectual property, many of such endeavors are encouraged and industries based on such work can grow, as people see that such work brings financial return.

An example of this later point is given by the case of the world pharmaceutical industry. An investment of many years, and R&D[14] expenses (lab time for creation, testing, government or agency approval procedures) running into the hundreds of millions of pounds sterling (or yen, rands, lira, dollars, or naira as the case may be) may be necessary before any new medicine reaches the market. Without the IP rights to exclude competitors from also making such a new medicine, the pharmaceutical company creating such a new compound would have no incentive to spend the time and efforts outlined above to develop their drugs.

Without patent protection, such a company would face economic losses originating from the “free-riding” of their competitors. Without trademark protection, this company, again, could not build “brand loyalty” that, hopefully, would last beyond the years of protection granted by patents. Without the protections given within IP laws and treaties, such pharmaceutical firms simply would not commit an effort to experiment, in searching for new health products. As you can see from this brief example, without the protections outlined above, the world might well be literally less healthy than it is. Finally, Intellectual property rights may also help to extend protection to such things as the unwritten and unrecorded cultural expression of many developing countries, generally known as folklore. With such protection they may be exploited to the benefit of the country and cultures of origin.

References

About the author

Chubby Ike Obianyo is a legal practitioner, researcher and seasoned author. He writes from Anambra State.

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