Law  

‘Lack of systematic law reform system reason for comatose state of intellectual property in Nigeria’

Justice scale.<br />Photo: News

Prof. Adebambo Adewopo (SAN) is a leading intellectual property scholar with extensive academic and professional careers, which have spanned both private and public sectors in Nigeria. He was educated in Nigeria and the United States. He commenced his academic career at the Lagos State University (LASU), where he pioneered teaching and research in Intellectual Property (IP) Law.

He is a past fellow of Max Planck Institute for IP, Munich, Germany and the Centre for IP and IT, University of Edinburgh in 2002 and 2005 respectively; tutor in Harvard University Copyright X programme; member of the Chartered Institute of Arbitrators, UK; served in various roles at the World Intellectual Property Organisation (WIPO), including member, Standing Committee on Copyright and related rights (SCCR); and tutor, Distance Learning Centre, WIPO Academy.

He has contributed to scholarship, policy and jurisprudence in Intellectual Property Law in Nigeria. Adewopo is the first IP professor in Nigeria conferred with the rank of Senior Advocate of Nigeria (SAN), the highest rank in the legal profession in Nigeria.

Adewopo has held the first distinguished IP chair at Nigerian Institute of Advanced Legal Studies (NIALS) since 2010. Prior to taking up the IP chair at NIALS and in recognition of his contribution to the development of IP in Nigeria, Prof. Adewopo was appointed the Director General of the Nigerian Copyright Commission (NCC), where he served between 2004 and 2010. He has published several works including books and articles in learned journals, and has presented over 100 conference papers in Nigeria and abroad.

The importance and value of Intellectual Property (IP) have become more real in the current global market with nations engaging in fierce battle to gain huge economic advantage. This also includes the proliferation of multilateral and bilateral agreements to protect products and technologies across borders. The Nigerian economy is the largest in Africa, which implies increased productive activities and capacities across sectors. Can this advantage be sustained without attention to IP and adequate IP protection? Prof. Adebambo Adewopo SAN, a leading IP lawyer who has traversed practice in academics, private and public sectors, examines these issues with the Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE.

Do you agree that IP is currently a compelling issue of global interest that countries now take seriously?

We are certainly in the world of Intellectual Property (IP). IP is omnipresent. IP is at the heart of human development and the flourishing of society. IP everywhere around us; in the new creations, in the new methods of producing, designing, packaging, distributing, marketing products whether goods or services, in the food we eat, water we drink, clothes we wear, music we listen to, movies we watch, books we read, in the arts, in research, in the new technologies we use, name it, especially now in the information age.

Undeniably so, virtually everything we consume today has the flavour and imprimatur of IP.

Hence, IP protection is of the highest concern for creators, producers, entrepreneurs, innovators and organisations, big or small as well as nations simply because IP is the real value and the hidden wealth of a nation or an enterprise.

In the current global knowledge economy, IP law is the dominant policy, legal tool for the regulation of creativity and innovation and the rights over them, with each nation formulating and implementing its IP system according to its national interest and development needs.

This is because the world’s richest resource is innovation and IP is indeed the invisible infrastructure of innovation.

It is the currency of today’s global trade in knowledge and cultural goods. IP law regulates the bulk of transactions in the ecosystem. This is the present reality of the significance of IP worldwide.

Violations of intellectual property rights cost the owners of the rights and the country billions of dollars each year. These costs stem from lost royalties and sales in markets dominated by counterfeit products. So should IP protection be taken more seriously than we are taking it?

It is merely stating the obvious that IP should be taken more seriously than ever before.

There is a huge gap in the understanding and central role of IP in the economic and technical dynamics of development and economic growth, particularly so, now that there is intense contestation for markets and wealth among nations.

Any legal requirement for business must target IP protection not merely at a secondary but at the very primary level because value would be lost and with it productivity, market, wealth creation and distribution.

IP portfolios continue to account for a significant percentage of business value across industries, despite the increasing levels and different forms of Intellectual Property Rights (IPR) violations.

The global IP statistics attest to this. The combined revenue in copyright, trademark, patent and designs from sales, royalties, recordations, including valuation, licensing and other forms of securitisation are in hundreds of billions annually across sectors showing an overwhelming commercial value of IP asset among the most active industries.

For example, the top 10 most valuable trademarks which cut across different industries, which keep revolving mostly around IT, consumer goods, telecoms and financial services industries exceed $400 billion mark in the last seven years, that’s almost half a trillion.

Some of the regulars are the Google, IBM, Voda Fone, Microsoft, Bank of America, Apple, and Walmarts’ of this world.

Prominent of brands owners of Nigerian origin cuts across different sectors like GLO in telecoms, scores of brands of conglomerates like Dangote, Nigerian Breweries and UAC.

We have witnessed the intensive branding of financial services in the banking and investment industry. Those are just few examples of iconic brands at the commanding heights of the Nigerian market environment.

These brands and many more are constantly creating value, providing solutions and meeting the needs of the consumer society and are sustained by the machinery of innovation showing that innovation drives commerce and technologies. They are not just brands, they are high net worth IP, showing the huge commercial value and the inimitable market power of IP, which has not been sufficiently harnessed or even given its due recognition in our clime.

In any organisation and this includes the SMEs, no business plan is complete without IP strategy. It is doubtful if these concerns invest in the practice of IP valuation.

Business and IP managers, entrepreneurs, even policy makers are increasingly engaged with the trends of how to engender an enabling environment for sustainable growth.

The imperative of innovation is compelling particularly now with all the digital market opportunities that have added value and enhanced revenue knowing that when we innovate, we are inexorably adding value and leveraging market.

As the strongest tool in managing innovation asset, IP is indispensable to the protection of the new creations, the new value and of course the economy as a whole.

So really as they become IP assets worthy of protection, IP laws and policies are specially designed to promote the economy because they guarantee the protection of IPRs of the goods and services concerned.

There are four critical components of IP protection: the IP rights, commonly known as the bundle of exclusive rights in the products, be it music, movies, data or contents, technology etc and ensuring that the rights are well defined; the transactional aspects, which deal with how the rights are secured in the relevant contractual or licensing arrangements to ensure they are not lost in the transaction; the management of the IP rights including digital context, and finally enforcement in the various platforms available.

Every IP law must determine the appropriate tenor and level of IP protection in those specific contexts.

Indeed, I would say IP lawyers are needed to provide innovative legal solutions in every aspect of IPR protection, particularly in the more complex and rapidly changing business environment involving the use of digital technologies.

Considering the high level of creativity and innovation involved, how has IP fared and how has its violations and the huge cost from lost royalties, sales and market impacted Nigeria?

IP has never been more economically even politically important than it is today in its strategic role in national development across multi-disciplinary and cross-cutting fields; be it trade, pharmaceuticals, biodiversity and biotechnology, digital technology and computer software, agriculture, culture and traditional knowledge, music and movie industries, education, and much more, even the financial sector with the emergence of fintech ventures now providing cutting-edge technology-intensive services for financial transactions and much more.

These are vital sectors and IP is at the core of these industries, adding value, driving investment and innovation, leveraging markets and enabling human development which continues to offer great potential for contributing to the economy in terms of enhanced revenue generation, job and wealth creation and meeting the key objectives of economic growth. 

For instance, as government continues to embark on serious economic reforms to impact all the sectors with the explicit goals of generating revenue, making more people and entities pay tax, creating more jobs and live better, we are making the economy to expand beyond limits.

The expanding economy means increased productivity and value accretion in the delivery of goods and services across sectors, which can be sustained by an effective IP system.

In essence, those goals connect with implementing an appropriate IP reform as an integral part of the national economic reform, which can and will deliver a growing economy within the enabling investment and innovation environment.

In concrete terms, we can for instance imagine how much IP revenue government alone can generate on millions of trademarks; patents and designs including foreign ones in the IP offices and these include copyright related transactions, given an efficient and effective legal and institutional system which reform can make possible.

This is outside tax revenue and it far outstrips corporate affairs revenue because we are talking about millions and millions of IP portfolio of all categories of IP owners.

As we lose sight of this, we are regularly losing revenue, not just to piracy and counterfeiting, but also to the absence of institutional reforms.

Our effort in enhancing revenue is suboptimal when we can generate more through corporate IPR and given better IP administration mechanism to shore up existing low revenue base as well as ensure more effective IPR protection.

As with generating revenue and creating jobs, promoting innovation is a significant part of our economic reform because they go hand-in-hand.

Nigerians have continued to create and innovate regardless of the harsh socio-economic conditions. For sometime now, it has been Nollywood and the entertainment industries and it will continue to be so.

Software and IT are the emerging frontiers, yet IP system and practices have not caught up with the pace and pattern of those industries, the proceeds of IP continue to elude us.

In all these possibilities, we have continued to skirt around the threshold of IP reform that is sure to support the economy.

Let us look at the issue of digital technology and its overwhelming effect on the IP industries. Would you say that digital technology has come to Nigeria to stay?

The rapid advances in digital technologies have by far the most transformative impact on IP and innovation as well as the dynamic interaction of technology, commerce and law.

This dynamic interaction has continued to shape existing legal norms and even create new legal norms that have developed to protect the digital economy.

Since the advent of the Internet, we have seen the emergence of new legal concepts in successive pieces of IP legislation specifically designed to protect IP in the digital and online environment such as Digital Rights Management (DRM), Technological Protection Measures (TPM), Internet Service Provider (ISP) liability rules, anti-circumvention provisions, software protection, online piracy & notice to take down protocol; now we speak of cyber-squatting, domain name infringement, among others.

These have continued to define IP digital landscape and provide the legal framework for the regulation of digital trade.

With the intensity of digital technologies across industries, driving e-commerce and data flow to new heights, IP remains the major legal instrument in digital age, complemented by e commerce, cybercrime and data protection regimes where you still find IPR rules holding sway.

For example, while we don’t have e-commerce and data protection legislation yet, our cybercrime act makes particular references to IPR.

Clearly, the current wave of the digital economy and the entire ecosystem with its emergent frontiers in the big data, the new ‘oil’ of the digital age, artificial intelligence are largely regulated and governed by IP law.

The ascendancy of IP we often spoke about at the dawn of globalisation two or three decades ago has finally crystallised into the primary legal and policy framework for the regulation of the current digital era with the high turnover of IP reforms regulating trade in different jurisdictions across the globe.

Nigeria cannot be an exception. For example, while there is a rapid transformation of the commercial and technological environment, our current IPR regimes consisting in the respective copyright, patent & trademark acts have not been reviewed to suit in that environment.

In a developing country like Nigeria, how far can IP help in promoting education, access to information, technology and even healthcare?

This is a very important question, which borders on IP and development particularly though not exclusively from a developing country perspectives. It is one of the most interesting IP debates.

The issue HAS continued to define the contours of the normative role of IP beyond the strictly legalistic protection it offers to the community of creators and innovators.

IP is not limited to the question of protection of IP rights only, which has been a major preoccupation of the global IP system for sometime and has made development experts probe deeper into the intrinsic role of IP.

Policy makers around the world are constantly and actively integrating innovation policies with development frameworks while recognising the indispensability of IP assets as worthy of protection.

This is so without compromising the need to ensure appropriate access by the public. As such, framing IP laws to protect creativity and promote development goals.

The wider public interest of IP is in the access mechanism it implements to leverage the protection. With that protection framework comes the question of maintaining appropriate access by the public to the wealth of IP assets.

In other words, IP system functions best when protection is carefully balanced with access. After all, you don’t produce or create for the sake of it but to engender wide consumption or dissemination as the case may be.

The real value of production is in the generation of consumer society and public acceptance.

While authors of literary works derive remuneration for their creative works through the bundle of exclusive rights, copyright satisfies greater public welfare if the blind and libraries, for instance, enjoy adequate access that a well-designed limitation and exceptions mechanism build into the copyright system.

This analogy applies to patent compulsory licence to allow access to medicines for the poor population and promote public health care system as a lever against highly priced patent drugs.

The combination of protection and access therefore delivers the development role of IP in its overall functioning, in a seamless conjunction with other policies supporting and growing the economy, expanding its productive capacity for new markets, creating jobs and generating more revenue, getting more and more people out of poverty, promoting public welfare and practically addressing the more political issues of dispensing democratic dividends.

This concept of IP is not limited to developing countries but it rings loud across the North-South divide.

IP is an intricate part of development process, which can be seen both in concrete economic terms and in the wider sustainable context and one that requires careful construction into the development policies and processes.

Stakeholders are crying for reform of our copyright, patent and trademark laws in order to enjoy the economic benefits of IPRs. Do you think Nigeria has enough IP law to reap the benefit of IPRs & combat IP theft? In the same vein, can you reconcile this Nigeria’s position in implementing World Intellectual Property Organization (WIPO) obligations and create strong enforcement mechanism as required by the World Trade Organization (WTO)? What kind of updates do we need?

Yes, it is a well-known fact that for over two decades now, the body of IP laws in Nigeria has been in need of reform and the attempts at reform have had a chequered ‎history.

The laws have remained largely unsuited to the emergent commercial and technological developments. Since over two decades, the revised or the new IP laws seem not to have gone past the draft forms.

The absence of a systematic law reform system has contributed immensely to the comatose state of IP regime in the country coupled with the peculiar nature of the creative and IP based industries.

In recent time, reform had picked up gingerly and all hands must be on deck to see to the realisation of the process in the interest of IP holders, the public and economy as well as the role of IP in the current economic reform process.

The promotion and protection of creativity and innovation are an indispensable part of economic development.

IP is critical to that, particularly for a developing country with tremendous creative capacities like Nigeria.

Unfortunately, IP law suffers from the wider law reform challenges that presently obtain in our legal system. There are two levels to our IP reform, which is urgently needed; first is the black letters of the law, which invariably give birth to the second one.

If we have fully come to terms with the realities that the digital economy is here with us, clearly we must take IP law reform more seriously than we are taking it; it is a matter of national priority and one that is an indispensable and integral part of reform of the business environment.

We have said it repeatedly that our IP law and institution continue to lag behind the prevailing technologies and markets in a way that the economic reform agenda have not fully captured – in terms of revenue, job creation, productivity, innovation and other important growth indices that a sound IP system delivers.

The important second is the existing institutional framework. The centrality of IP administration in the IP framework cannot be over-emphasised. It is what drives the IP system.

The first part of this is mainstreaming the IP institution and then strengthening the institution as key to economic planning and reform.

For example, patent, copyright and trademark offices around the world are major public institutions that add considerable value to their respective economic environment and development drive. We are not there yet and the major bane is the apparent lack of political will to reform these important institutions.

This is understandable because oil delivers instant gratification but IP is at the productive base of the economy, which needs tendering and nurturing through appropriate practices, policies, legal and institutional framework.

Our IP fragmented institutions as presently constituted are not sustainable neither are they fit for purpose to support the larger economic reform agenda.

More particularly, in the last decade or more, as a country with the fluctuating economic fortunes, we cannot afford the existing fragmented IP regulatory environment at this period of dire economic challenges.

We must harmonise our IP institutions to ensure better service delivery, generate more revenue, create jobs and build capacity, more effectively manage innovation and importantly save the cost of governance.

In terms of WTO and WIPO, Nigeria cannot be an exception within the global IP community.

As a member and signatory of both international organisations and their respective treaties and conventions, with obligations, we cannot be less than ingenuous in navigating the contours of

IP norms to protect our development interest and market and yet remain competitive globally.

The key components of our national interest and competiveness are our creativity and innovation and markets. The instrument is our policy and legal frameworks. This is a huge responsibility as a producer and a major economy.

The global IP system is a complex system and developing countries are gradually standing up to it to leverage development concerns.

Largely rapid advances in digital technology and scope of industrial and commercial activities have dictated the wind of IP reform across jurisdictions.

Our own reform has been difficult because of the clear message that IP appears not to be a national priority, a fundamental misconception of the role of IP, which has informed lack of political will to give the desired attention to IP system.

We are reaping the consequence of this erroneous impression in many ways than one, in the all-encompassing lack of institutional reform; adequate rights administration and enforcement for the protection of investment.

We will be doing a great disservice to economic reform if we continue to neglect IP reform.

As earlier indicated, the two drafts of copyright and industrial property law have not progressed beyond draft forms that still requires some revision.

For example, the last copyright amendment to the 1988 act was in 1999, which was not really of any considerable importance and depth.

In the case of industrial property, over 40 years, in fact 50 years going in a rapidly changing commercial, industrial and technological environment and with the new generation of technologies our innovators and entrepreneurs are constantly churning out.

This is simply appalling and we are talking about being the largest economy in Africa? So, our case for IP reform remains as strong as ever and a patriotic one for that matter.

We see the huge wealth of creativity and innovation everyday and we remain helpless in harnessing them through a more enabling environment.

IP legal framework is part of the process of harnessing our creative and innovative capacities through the formulation and implementation of appropriate legal, institutional and regulatory frameworks to enable the development of industries.

Our body of IP laws, regulations and policies should not only protect the market but must provide a suitable institutional framework to deliver on our economic and wider development goals.

What is your political view about Nigeria and our direction as a nation?

In my considered view, our predicament in developing as a nation revolves around what I consider to be three fundamentals.

Firstly, it concerns our political system itself. We must admit that we have practised both the Westminster parliamentary and American presidential systems with grave misconception or application or even mistake however genuine and I think the generality of Nigerians has come to the realisation that our political system ought to have adapted our history and heterogeneity as a people in order to forge nationhood.

Some of the eminent architects of our Constitutions have admitted this reality.

Consequently, the lessons of almost 60 years of Independence have taught us that our political system should have accommodated our peculiar historical and cultural experiences and the transplanted political and constitutional model and apparatus should have adapted this fundamental cultural differences in the governance and organisation of the new Union.

Should we go to the drawing board to redesign our Union Charter? In my humble opinion, Yes please; to lay a firmer and stronger foundation drawing from those lessons and experiences of the past years in the critical areas particularly in the allocation and management of resources and political structures.

For example, the size and cost of government have persistently taken a huge toll on the country’s resources and can no longer be sustained.

We do not need a bi-cameral legislature while some cabinet portfolios are not necessary; same for the myriads of agencies whose functions can be conflated to bring efficiency and effectiveness to government business.

My second fundamental is the existential challenge of leadership and citizenship question. Leadership drives citizenship or followership as the case may be.

History has shown that a crop of visionary leaders often lays the foundation of great nations.

I strongly believe that vision, character, capacity and courage are the indispensable attributes of an effective 21st century Nigerian leader. Those are the qualities that would lead the nation in the right direction.

It is leadership that will engender patriotism and a sense of ‘community’ in the citizenry.

That sense of community compels us to live together and find common human fulfilment in the greatest good of the greatest number as the overarching moral fabric on which the society is organised and governed.

A gradual process of deterioration and lack of the sense of community that have characterised our share experiences have systematically engendered avarice and impunity that we are dealing with today particularly in our public service.

For example, take a look at the quality of our public infrastructures if they are something we can even be proud of let alone bequeath to the next generation because our patriotic fervour has been heavily compromised.

Patriotism cannot be forced or enforced. I love this country. I have lived in every part, grew up in the West, schooled in far North and served in the South South, and currently live Abuja, which makes me a thoroughbred Nigerian.

Let me use this opportunity to say it loudly that one of the greatest unifying forces of our country is the NYSC. We shouldn’t lose it notwithstanding its present challenges.

We must not dispense with it rather we should strive to renew it and keep it for the future generation. Lastly, our institutional capacities call for redress.

I believe that the strengthening of institutions is central to good governance as much as strong leaders.

I am an advocate of both strong institutions and strong leaders particularly at this stage of our development in order to confront contrary forces and elements that cannot see beyond their primordial or parochial interest and they abound, both in the private and public spheres. I have had this experience and I know what I am talking about.

A vital part of strengthening key institutions is by appointing strong and competent leaders to deliver on the mandate for national interest. Key institutions become lethargic with incompetent leaders.

This is a colossal waste of resources and time and sadly the nation is the casualty for it.

So I am concerned that we must recover key public institutions, which is where the machinery of government really resides as they are the chief instruments for driving strategic development agendas like the economy and economic policies, promoting innovation, education, health, which are the hallmarks of a great nation.

If we take this seriously, scores and scores of public institutions across sectors will do far better and the nation will fare a lot better.

While a lot of work has been done on public service reforms since the 70s till lately, but I sincerely believe that because of the critical role of public service as the engine of governance, we still need to take stock, review and embark on massive reconstruction of our public institutions to face the challenges of development. 

As part of the whole restructuring debate, what do you think about the argument that the unity of Nigeria is non-negotiable?

If you look very well, though, the restructuring debate is a highly emotive one, I think there is unanimity on all sides that the Nigerian entity is not functioning optimally whether due to the management of its affairs or the basis of constitution of the Union, which have thrown up specific issues of federalism, constitutional amendment, leadership question, corruption and more.

So there is the nagging question of negotiability of our nationhood. I would say that there is no nation or comity of nations whose basis of subsistence is not negotiable or cannot be re-negotiated given prevailing condition.

I understand the sentiments particularly from some of our political leaders who have defended the corporate existence of this nation through the thick and the thin and would not want innocent blood spilled to purchase this nation become a futility.

That is the very reason why we shouldn’t continue to live in denial of some of these concerns, as we owe it a duty to posterity and to be true to the integrity of this Union.

The system has continued to breed dysfunction or corruption and in any event, if there is none, which is unlikely, there are fundamental structural and systemic challenges that have produced the persistent state of affairs such that we cannot run away from in many generations to come if we don’t address them.

Our constitution, the grundnorm is the article of faith which binds us together as a people and in the immortal words of F.R.A Williams, it has told a lie about itself when it says ‘We the people” when at no time has the people actually said so! Since 1914, over a century going, we have kept going delicately.

In my view, while the unity of Nigeria is sacrosanct, the Union as a political entity is, to all intents and purposes, negotiable. One is the framework of the other and there is no contradiction in terms.

Upholding the sanctity of our unity becomes the building bloc of our renewed nationhood that would address existential challenges that have plagued us and would help us further consolidate the Union. We can only foster unity within the Union and not outside of it. We cannot talk of unity if the union ceases to exist.

If the framework of the union is dysfunctional, it can be corrected or repaired in order to forge nationhood. Nigeria as a political entity is a powerful and compelling one.

There is nothing we cannot achieve as a nation united if we set our mind to it giving it an enabling environment for prosperity of the whole.

But we must overcome this threshold in order to move forward and in a shorter time than we have spent in circles, we can become one of the most powerful nations on earth. 

     

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