INTELLECTUAL PROPERTY LAW
Intellectual property is simply the creation of the human mind. It is the intangible property of human creation. According to the World Intellectual Property Organization (WIPO), Intellectual property refers to creations of the mind: inventions; literary and artistIntellectualic works; and symbols, names, and images used in commerce. In this article, we briefly discussed the overview of Intellectual property Laws in Nigeria.
Forms of Intellectual Property Law In Nigeria
In Nigeria, a number of laws have a bearing on the protection and administration of the different rights that make up intellectual property. However, the three main statutes governing the intellectual property Law in Nigeria are the Copyright Act, the Patents and Designs Act, and the Trademarks Act.
Copyright is the exclusive rights granted to the creator of an original work. It also simply means the right to copy. Copyright gives the owner the exclusive right to authorize or prohibit certain uses of his work by others. Copyright and related rights are governed by the Copyright Act Cap 68 Laws of the Federation of Nigeria 1990. The body responsible for matters concerning copyright and related rights in Nigeria is the Nigerian Copyright Commission. Exclusive rights of copyright are divided into two; moral rights which protects the reputation and the integrity of the author and economic rights which gives the author the right to earn profit by direct or indirect exploitation of a work. Section 1(1) of the Copyright Act provides for works protected by copyright which include; (a) Literary works (b) Musical works (c) Artistic works (d) Cinematograph films (e) Sound recordings (f) Broadcasts It is important to note that copyright does not protect ideas unless it original and fixed. According to section 1(2), a literary, musical or artistic work must satisfy the twin requirements of originality and fixation. Works that satisfy these requirements enjoy automatic copyright protection, without the need for registration or compliance with any formal or procedural rules. However, the Nigerian Copyright Commission (NCC) provides owners of copyrights the option to deposit a copy of their works with the NCC and receive a certificate which serves as notification of the existence of the work to the general public.
Related or Neighboring Rights
Neighboring rights involve creativity which falls short of the fixation requirements and do not, therefore, qualify for copyright protection. These are generally, rights of individuals who assist intellectual creators (like musicians) to communicate their message and to disseminate their works to the public. There are basically two neighboring-rights statutorily recognized in Nigeria, these are the performance rights and rights to the expression of folklore.
Duration of Copyright and Related rights
Copyright in literary, musical or artistic works other than photographs lasts until seventy (70) years following the death of the author. In cases where the work is owned by a government or a body corporate, the copyright in the literary, musical or artistic work will expire seventy (70) years after the work was first published. Copyright in films and photographs lasts 50 years after the year the work was first published. Copyright in sound recordings also lasts 50 years after the recording was first published. Performance rights subsist until the end of the period of fifty years from the end of the year in which the performance first took place.
Patent is an exclusive right granted for an invention which is a product or process. A patent is a monopoly right in an invention. Patent law in Nigeria is regulated by the Patent and Design Act Cap P2 LFN 2004. The lifespan of the patent lasts for 20 years provided the annual renewal fees are paid for the duration of its potential life. Where the patentee defaults in the payment of the annual renewal fee, the patent lapses, after a 6 months period of grace, if still not be renewed and cannot be revived again.
Requirements for Patentability
Section 1 of the Patent and Design Act sets out the requirement of a patentable invention (a) If it is new, results from inventive activity and is capable of industrial application; or (b) If it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application.
Section 1 (4), (5) provides for the exceptions to patentability. These include plants or animal varieties, or essentially biological processes for the production of plants or animals. Inventions the publication of which will be contrary to public order and morality are also excluded, so also are principles of a scientific nature.
Application of Patent
Section 3 of the Act provides for the formal requirements for a patent application, which state as follows: (a) shall be made to the Registrar and shall contain – (i) the applicant’s full name and address and if that address is outside Nigeria, an address for service in Nigeria, (ii) a description of the relevant invention with any appropriate plans and drawings, (iii) a claim or claims, and (iv) such other matter as may be prescribed; and (b) shall be accompanied by – (i) the prescribed fee, (ii) where appropriate, a declaration signed by the true inventor requesting that he be mentioned as such in the patent and giving his name and address (iii) if the application is made by an agent, a signed power of attorney
Industrial Design is defined as any combination of lines or colors or both, and any three-dimensional form, whether or not associated with colors, if it is intended by the creator to be used as a model or pattern to be multiplied by an industrial process and is not intended solely to obtain a technical result. It is generally the ornamental or aesthetic aspects of a product. The design of a product acts as a distinguishing factor for branding and also signifies the importance of aesthetic appeal to consumers in the choice of products. It is governed by the Nigerian Patents and Designs Act.
Requirement for Registration
Section 13(1) of the Patent and Designs Act 1990 provides that an industrial design is registrable if; (a) it is new (b) it is not contrary to public order or morality.
Registration of Industrial Designs
An application must be filed at the Registry of Trademarks, Patents and Designs in Nigeria. In order to register a design in Nigeria, there are a number of intellectual property law or steps an applicant must first take as stated below: ➢ The applicant must make sure the design conforms to the requirement of registration ➢ The applicant must not publicize the design before seeking to register the design and where he does, It becomes part of the public domain and cannot be protected after six months of such exhibition, or unless the priority of an earlier application can be claimed. ➢ The applicant must provide a specimen of the design. ➢ The applicant must also provide basic information including the name of the applicant, address, an indication of the kind of products associated with the design, and the title of the design. ➢ The applicant will also be required to pay the prescribed fees. ➢ A Power of Attorney, if the application is being made by an agent. ➢ Certified copy of the priority document if claimed.
A trademark may be described as a mark, which is used in the course of trade or business, to identify goods or services emanating from a particular provider and to distinguish them from those of others. Trademark is often called ‘brand’. By distinguishing brands of product or service, it builds the reputation of the brand. Trademarks also affect the consumers’ choice of product. It is the symbol through which consumers identify and become familiar with a particular product. The relevant authority in charge of trademark registration is the Trademarks, Patents and Designs Registry under the Federal Ministry of Trade and Investment. In our previous write-up, we explained the procedure for a trademark registration in Nigeria.
Registration of Trademarks
The trademarks register is divided into two parts: part A and part B. Section 9 of the Trademark Act CAP T13 LFN 2004 provides that in order for a trademark to be registrable under part A, the mark must contain one of the following: • The name of a company, individual, or firm represented in a special or particular manner; • The signature of the applicant for registration or some predecessor in his business; • an invented word or invented words; • A word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or surname; • Any other distinctive mark. To be registrable under part B, the mark has to be capable of being distinctive.
Non- Registrable Marks
The non-registrable marks include marks, which are not permitted to be registered under the Act. They include; • Marks which are deceptive or scandalous, contrary to law or morality. • Names of chemical substances • The Nigerian Coat of Arms or other emblem of authority • Patent, copyright, red cross and other similar words • Identical and resembling trademarks
Procedure for Registration of Trademarks
• Trademark search • Acknowledgment by the registrar if such mark follows the requirement of registration • Acceptance • Publication in the Trademark journal • If no opposition, the registrar issues a trademark Certificate
In conclusion, it is worthy of note to mention that the registration of any intellectual property under the relevant intellectual property laws in Nigeria ensures its protection. Once the intellectual property rights have been registered, the owners can enforce such rights in a case of any infringement from a third party.
Copyright works are protected once it’s fixed in a definite medium and original; an invention must be patentable before it can be registered, and trademark registration may be in form of words or logo only or combination of both.
Above all, intellectual property right in Nigeria can be assigned, licensed or charged by way of a mortgage.
By Intellectual Property Law Department at Resolution Law Firm