‘Why Nigeria urgently needs an Intellectual Property (IP) Policy’
Obafemi Agaba is one of the leading lights in the intellectual property rights protection and enforcement practice sector in Nigeria. Agaba was recently elected as President of the Intellectual Property Law Association of Nigeria (IPLAN) and in this interview with ROBERT EGBE, he x-rays the state of Intellectual Property (IP) law in the country, its challenges, prospects and how failure to protect IP rights will kill creativity, innovation and discourage foreign direct investment.
Congratulations on your election as the President of IPLAN. What is the state of Intellectual Property (IP) law in Nigeria?
Thank you so much. Congratulations are indeed in order, as I do not take for granted, the leadership of an association that is aimed at the promotion and protection of intellectual property rights, given the overall importance of the subject matter to the cultural, socio-economic and technological advancement of the country in a world that is increasingly becoming a knowledge economy.
On the state of IP law in Nigeria, I will easily say that the laws are to a large extent codified, as there are legislations concerning virtually every aspect of intellectual property rights. There is the Trademarks Act of 1965 which was modelled after the English 1938 Trademarks Act; Patents and Industrial Designs Act of 1972 and the Copyright Act 1992 (as amended). The existence of well-codified IP laws is a good thing in itself. However, when these laws were passed are put into consideration, we begin to realise that these laws may have become inadequate in dealing with some of today’s economic and technological realities and are, therefore, in serious need of a total overhaul or at the very least, amendments. For instance, there is the need to expressly provide for service marks in the Trademarks Act while the Copyright Act needs to reflect some of the dictates of the Nigerian treaty obligations in this area. Procedurally, there have been some tremendous improvements in the administration of trademark matters. This can be seen in the online filing system adopted by the Trademarks Registry in the filing of trademarks and patents, as well as the online notification of copyright works with the Nigerian Copyright Commission (NCC). A good development has also been the regular and consistent publication of trademark journals as opposed to the previous trend when it could take over a year to see a journal.
How important are IP rights to Nigeria?
In the age we live in now, IP Law is cardinal to the economic and social development of every country including Nigeria. Essentially, the rationale behind the protection of IP rights lies in the encouragement of members of the society to undergo intellectual exertion leading to discovery and creation of initiatives and products that are necessary to human survival, entertainment and economic advancement. In the absence of the monopoly granted by IP laws, innovation and invention may become lacking in the world. This would have a negative impact on the cultural heritage, entertainment and indeed the GDP of the nation. IP laws are very important to Nigeria as foreign investors are assured of the protection of their economic rights through a robust law that ensures fair exploitation of their IP rights in the country and that in the event of a breach, the laws of the land are adequate in protecting their interests. Thus, investors shy away from societies where IP laws are ineffective. In what area is it beneficial to the government and the people? The protection of IP rights engenders foreign investments as the international market is assured of the protection of their rights. The encouragement given to creatives and innovators ensures continued activities in commerce which generates incomes for different sectors of the economy and from which the government also generates revenue in terms of taxes and filing fees for registration of IP rights.
How aware do you think Nigerians are of their IP rights as well as that of others, especially in the use of Nigerian and non-Nigerian owned IP?
In terms of awareness of IP rights, Nigerians have come a long way in the last five years but that is not to say we still do not have a lot of work to do. This has been one of the focal points of this administration because of the economic gains we stand to make as a nation with an increased IP awareness. In the past, not so many indigenous manufacturers and businesses saw the need to register their IP rights; theirs was just to forge ahead with their business once it was bringing returns. Registration and protection of their IP rights was far from their minds as a result of complete ignorance of what IP is; what it entails and what value and protection it can bring to their businesses. For those who had heard a bit more about IP, it was just another avenue for lawyers to ‘milk’ them. I experienced this trend in the entertainment sector as well where clients will go into major deals without a single contract or with very scanty contracts that have no place whatsoever for the IP rights involved in a transaction that is essentially predicated on IP rights. Over the years, several companies started experiencing a downturn in their sales and investigations revealed that this was partly as a result of imitation products that had taken advantage of their goodwill; thereby misdirecting consumers to offending products with confusing similarities to the original products. We are all witnesses to some of the disputes that had arisen in the Nigerian film industry relating to scripts and allied matters. This is only because IP rights were not properly taken care of. Today, the trend is changing as the emergence of the entertainment sector and cross-border growth of some Nigerian companies have brought the imperatives of IP rights protection to the front burner. People are beginning to realise that money spent on IP at the conception of businesses and transactions is money well spent and an effective business preservation strategy.
What will be the consequences of Nigeria failing to tackle infringement on local and international intellectual property rights?
Simply put, the failure of Nigeria to put in place an effective mechanism for the protection and enforcement of IP rights violation is giving an indecent burial to creativity and innovation as creatives would be completely discouraged and disenchanted in exerting their labour, time and resources in the conception, development and working of IP assets that they are not sure would be monetised to improve their lot at the end of the day. The demise of creativity and innovation in itself leads to a complete erosion of cultural assets, gainful employment of youths and needed revenue for the government. International investors are also not encouraged to invest in a country where they are not sure that their intellectual assets will be effectively protected. Thus, apart from discouraging indigenous inventors, FDI (Foreign Direct Investment) becomes negatively impacted with the attendant loss of job opportunities, employment and increased trading activities through licences and franchises that would otherwise have been granted to local entrepreneurs.
What, in your opinion, has been the justice system’s attitude to the notion of protecting IP rights?
Honestly, the judicial attitude to the protection of intellectual property has been divergent. We have seen a nationalist protectionist attitude in some quarters. For some, it has been an extreme anti-competition prejudice towards the protection of IP rights, especially of foreign rights. In some quarters, we have witnessed a brilliant display of understanding of IP rights and its correlation with the preservation of our cultural heritage as a people; gainful employment of Nigerian youths; revenue generation for the government; as well as positive international reputation and attraction as an investment-friendly nation. In my respectful opinion, these divergent attitudes are largely born out of a good understanding of the substantive laws of IP and the whole jurisprudence surrounding its protection.
What role do you see for the government and other stakeholders to make IP law rights thrive in the country?
It is simple: a country without an IP policy lacks direction for its economic policies and how these are fundamentally connected to and impacted by IP direction for the country. Thus, an IP Policy needs to be put in place as soon as possible. Related to this is for the government to ensure the passage of all the long-standing IP Bills presently before the National Assembly to bring our laws up to date with the economy and technology of the modern world. The Industrial Property Commission needs to be established to raise the profiles of Trademarks, Patents and Industrial Designs Registries into that of independent Commission and thereby allow for ease of administration and better service delivery. All stakeholders including IPLAN needs to engage more in advocacy towards making the government take the initiatives mentioned above while we continue with the enlightenment of the general public on the essence and role of IP protection in today’s knowledge-driven economy.
It appears Nigeria has several legislations which are active in the IP sector, including the National Information Technology Development Agency Act 2007; the Patent and Industrial Designs Act and the Trademarks Act. Do you find these laws to be dynamic enough to tackle IP challenges?
As mentioned previously, these laws exist and have served their purpose in times past but the reality is that they have grossly become inadequate with today’s reality and need a total overhaul in the form of the passage of new ones or fundamental amendments of the existing ones at the very least. I do know that several IP related Bills have been before successive National Assemblies but they have had very little traction for the obvious reason of lack of political will and interest, perhaps because of a lack of connection to the economic advancement of the country.
You are an IP litigator and have facilitated IP seminars, educating officers of the police, customs and other regulatory agencies. How receptive do you find these officers to be to the IP rights protection idea?
It is interesting to note that a good percentage of these officers are open to learning more about intellectual property rights especially as such training comes down to how the lack of protection can personally affect their health and finances. The real challenge is the sustenance of such training and entrenching the same as part of the curriculum in their training school from the outset and continuously. Also challenging is the fact that after these trainings, the system does not have any formal mechanism for them to address IP rights as a core statutory function.
You were part of the previous IPLAN administration as Vice President. As President what will you do differently? What is your executive committee’s vision for the association and IP sector?
The law is the foundation of every action in an organised society. Thus, of major concern to us is how to ensure that the present National Assembly passes all the IP Bills before them and for the Presidency to put in place a national inter-ministerial committee for the birth of an IP Policy with the involvement of private-sector stakeholders. Continuous training of the Judiciary is also paramount to us as this is the ultimate protector of IP rights and this specialist knowledge cannot be taken for granted. COVID-19 permitting, we are looking at launching an annual conference on IP that would bring stakeholders together and help drive the narrative further whilst at the same time enlightening all relevant sectors of the society. A certification course on IP is also in the workings, amongst many other initiatives.
You were a member of the Lagos State Governor’s Committee for the Reforms of the Entertainment Industry in 2010 where you authored the Legal Framework for the actualisation of the Committee’s recommendations, how did this impact the industry in Lagos State and what has been the progress since then?
This was under the administration of Governor Babatunde Fashola under the chairmanship of Mr Toyin Subair and participation including Ms Joke Silva, Mr Olu Jacobs, Mr Adebayo Salami (Oga Bello), D’Banj, Cecil Hammond and a few others. The government pushed forward with some of the initiatives but with the change in guard, I am not sure where successive governments left things.
You have had very critical conversations on IP issues across several global stages such as the International Trademarks Association (INTA), International Anti-Counterfeiting Coalition (IACC), Anti-Counterfeiting Coalition (ACC), World Intellectual Property Organisation (WIPO) the Economic Forum of the Columbia University, New York, amongst others. How do you bring to bear some of these conversations for development back home?
This has involved me engaging in a lot of national debates and workshops on IP issues as an avenue to propagate the international experience. I have also had cause to be a member of the Technical Working Group for the finalisation of the Copyright Bill that is before the Federal Executive Council and I also contributed as a member of IPLAN’s Committee for the review of the Industrial Property Commission Bill which incorporates substantive law review of the trademarks, patents and Industrial designs laws. All of these assignments have enabled me to share my experience and use it in furtherance of the advancement of IP in Nigeria. This also explains why I served as the Vice President and now President of IPLAN.
Tell us a bit about yourself
I am a Partner and Head of Brand Protection Practice at Jackson, Etti & Edu, a leading full-service sector-focused commercial law firm in Nigeria with a strong reputation in practice locally and internationally. I also head one of the six sectors of focus of the Firm, the Fast-Moving Consumer Products (FMCG Sector) where I lead the team that advises on the total value-chain of consumer products from product conception, feasibility, designing, branding, packaging, regulatory, distribution, sales and advertisement to consumer protection. Litigation and regulatory concerns around social media and technology have been an emerging area in the Nigerian legal space which I am happy to have become a leading light in this field. I am also a member of the Chartered Institute of Arbitration (UK) with a special focus on commercial matters particularly relating to IP and construction contracts. The international independent research organisation for the global legal market, ‘Who’s Who Legal’ has nominated me over the years as a leading legal practitioner in Media, Entertainment and Technology in Nigeria as well as in Intellectual Property.
Why and how did you choose law? What is your advice for young lawyers aspiring to achieve some specialisation in law?
My father was not a lawyer but I think he missed his calling. He spoke and wrote impeccable English and was such a convincing authoritative speaker that could have swayed judges in his favour in courtrooms. Indeed, he was called ‘baba lawyer’ in the neighbourhood and as a child, I honestly thought my father was a lawyer. That provided the preliminary interests. Getting into primary and secondary schools and becoming the natural picks by the teachers to lead the debating teams reinforced a natural talent to speak and marshal my arguments. I naturally gravitated towards arts with literature-in-English being my best subject and there was no way I was going to study any other thing.
I also saw law then as a choice for freedom fighters and I so wanted to be like another Obafemi Awolowo whom my father had apparently named me after hoping that I would be as great as the late sage.
To younger colleagues aspiring for specialisation, my advice is that you should try as much as possible to learn general commercial law and litigation for the first five years of your life as a lawyer before narrowing down to an area of interest. That way, you have enough background knowledge to excel effectively in your specialisation and the flexibility that may come in later in life even as you specialise.
Exposed!! Popular Abuja doctor revealed how men can naturally and permanently cure poor erection, quick ejaculation, small and shameful manhood without side effects. Even if you are hypertensive or diabetic . Stop the use of hard drugs for sex!! It kills!
Elevated blood pressure is not a death sentence. Take control with our proven herbal remedies, break free from high blood pressure, and reduce the risk of heart disease and stroke. CLICK NOW
Advertisement