ANALYSIS OF THE LEGAL AND INSTITUTIONAL FRAMEWORKS FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN NIGERIA

CHAPTER ONE GENERAL INTRODUCTION

• BACKGROUND OF THE STUDY

The concept of property has changed significantly over time.  It  is scientifically defined¹, as the jural relationship between two or more persons in relation to a thing. That is, the right to use and enjoy it. This includes the right to exclude others from using the thing. To many, especially laymen, when talk of property, what normally comes to minds is a tangible property, such as a house, a vehicle, electronic gadgets and so forth. Aboki held that in some cases both legal practitioners and laymen rarely think of modern forms of property, such  as,  copyright, patents and Trade Marks which are called intellectual property. These properties are not less important than other properties. They need the protection of  law just like other forms of property not only at national level but at international level².

In the present era of globalization and liberalization in the world economy, a nation must be able to harness her ideas, inventions, innovations and creative works towards technological advancement and global competitiveness. To nurture national talents, Nigeria requires identification of her researchers and  inventors,  creation of  an enabling environment and to initiate strategies to protect all the stakeholders and their creative works. These creative works constitute corpus juris in general called intellectual property. It is intellectual property because unlike  other  properties  created by nature or modeled by physique and labour, intellectual property is one created as a result of intellect. It is a different area of property. Like other forms of property, intellectual property such as Trade Marks, patent and copyrights have problems with political and socio-economic contents, for example, piracy, plagiarism etc. At present, both at national and international planes, there are laws and conventions prohibiting offences touching intellectual property. But alas! Offences bordering intellectual property such as piracy, imitation and counterfeiting are on the increase. Nigeria is not an exception. In this regard, the analysis of legal and institutional frameworks for the protection of intellectual property are undertaken in order to access the efforts of both institutions for implementation and curbing the menace of piracy, counterfeit, imitation and other offences, which are inimical to intellectual property.

The need for intellectual property protection  cannot  be  over-emphasized. Such legal protection accorded to various species of intellectual property do not only encourage the owners of such rights to engage their creative intellect in more  creativity for the utility of the society, but it also serves as an incentive to others that have creative minds to put their creative intellect into use too. Without legal protection, it is doubtful if any reasonable person would dissipate energy  into  creating intellectual property for public consumption. For example, there would have no privilege to have books such as Introduction to  Legal  Research  Methodology, Law of Banking in Nigeria, Law of Crimes in Nigeria, Material and Cases on Public International Law and so forth. In other words, creativity would not be attractive or considered worth pursuing by many. This is because if after all the efforts, such as physical execution, intellectual exertion, investment of time, money and other resources put into creation of intellectual property, the property is thrown into public domain for the society to use as it pleases and with the author or inventor of the property getting nothing in return from the society.  The society would be the worse for the absence of creative zeal in the circumstance, because it would have been deprived of the utility of most of the artistic, literary, musical and others creative works of the authors we enjoy today.

The utility of the various species of intellectual property to the society has  been aptly put by Keane³ thus:

…without copyright protection society would be deprived of  artistic and literary creativity. Without trademark protection consumer would  be deprived of a means of assessing quality and standards of goods. Patent protection acts as an incentive to invent and for product development permitting the inventor to recover research and development costs plus a reasonable profit.

This quotation highlights the importance of legal protection of intellectual property  for society to benefit. The field  of intellectual property law is essentially related  to the protection against theft of virtually all the intangible products of human intellect or creativity⁴. It protects the exclusive rights of the author, inventor or other  creator  in the product of his intellectual or inventive creativity. The story of development of intellectual property is, by and large, that of growth of international trade and commerce, and conflicts arising therefrom. It encompasses such legal concepts as copyright, Trade Marks, patents and design rights and it also includes rights against disclosure of trade secrets and unfair competition.  It  is  a  category of intangible rights protecting commercially valuable products of the human intellect.

                       STATEMENT OF RESEARCH PROBLEM

The recent technological advancement in electronics in particular and high ‘spirit’ for acquisition of wealth promote piracy, counterfeit  and  imitation  which have become a global challenge to the intellectual property rights. One characteristic shared by all types of intellectual property rights is that they are essentially negative. That is to say, they are rights which stop others from doing certain things, for  example, the rights to stop piracy, making of counterfeits and imitations. In some cases, it stops third parties from exploiting the right-owner without the licence of the right owner.

Many goods moving through international commerce  are  counterfeited⁵. These raise the questions: what is responsible for the increase of this ugly situation? Are there adequate legal and institutional frameworks to protect the rights? If there  are, have the legal and institutional frameworks failed? For example, the pharmaceutical and the personal care products industries are  riddled  with counterfeits. Millions of dollars of counterfeit pharmaceutical and personal care products manage to move through various authorized and unauthorized channels. These channels make it possible for counterfeit, expired, repackaged and relabelled products which are shipped internationally. Faked drugs rob patients as well as the patentee’s profit. Financial Times⁶ reported a horror story of a genuine bottle for children’s medicine which was refilled with a dangerous liquid and sold  in  a  Nigerian market where many children died.