By Oluwatobi Awe
Introduction
Law is a body of rules that has been recognized as regulating the actions of a set of people which may enforce by the imposition of penalties. Technology is the application of scientific knowledge for practical purposes especially in industry. Without a doubt, creativity and inventions are highly valued within the technology environment as reflected by the disruptions of technology which has pervaded all spheres of human life. The collegiality between technological creation and legal instruments for protecting these innovations is not far-fetched. In the absence of legal machineries set in motion for this purpose, technological innovation and ideas will fizzle out.
The US Department of Commerce states that over 40 million jobs come from intellectual property intensive industries. For this reason, the US Intellectual Property Enforcement believes that intellectual property infringement can hurt just not the economy but the US labour force as well.[1]
A recent Global System for Mobile Communications (GSMA) report stated that since 2016, the number of active tech hubs across Africa has grown by over 50 per cent; from 314 in 2016 to over 442 in 2018. It said Nigeria, alongside four African countries, is housing over 4,500 of these hubs with Nigeria on the top of the list with 55 of them making it the largest in the African tech ecosystem.[2]
Intellectual Property Law in Nigeria
Intellectual Property is a category of intangible rights protecting commercially valuable products of the human intellect in a concrete or abstract form.[3]
Intellectual Property laws protect the proprietary rights of creators over their creations. The infringement of Intellectual Property Rights undermines genuine investment in creativity, innovation and knowledge[4]. Invariably, the granting of exclusive proprietary rights creates an incentive for creators to develop, produce, and distribute new and genuine products and services for commercial purpose.
Intellectual Property Rights protect the exploitation of ideas, information and inventions for economic or proprietary value. While an idea in itself is not accorded legal protection in law, it can be exploited and/or be reduced in a fixed form to come under a head of protection under Intellectual Property laws as it is often said “Intellectual property does not protect your idea per se – it protects your expression of the idea“. Therefore, the loss of the right to these ideas by the founders of an early stage technology company can mean the end for their business venture.
The rubric of the law, which is otherwise referred to as Industrial or Intellectual Property Law which covers Copyright, Trademarks, Patents and Industrial designs aims, essentially, at ensuring that no one unlawfully annexes the fruits of another person’s labour[5]. Intellectual Property has become a frontline subject touching various aspects of today’s innovation driven and knowledge-based society.
A patent is granted under the law to protect an invention that is new or essentially better in some way than what was made before, or for a better way of making it. This protection is of tremendous importance to technicians and technologists; to medical scientists and space scientists; to lecturers, researchers and professors of applied sciences in institutions of higher learning; to physicists, biologists, chemists, agriculturists, and pharmacists; to computer engineers, telecommunication engineers, marine engineers, electrical, electronic and mechanical engineers and other professionals[6].
More than ever before in its history, humanity is overwhelmed by the sheer volume of Intellectual Property assets around us and how these affect our everyday life: social life, education, entertainment, health, agriculture, commerce, transportation, spirituality and general wellness. Simple articles such as clothing, cars, telecommunication gadgets and pharmaceutical products all have some IP component. The frontiers are almost limitless as we come to terms with artificial intelligence and our world moving from the Internet as a simple information super highway to a more complex web of the Internet of things[7].
Tech Law in Nigeria
Technology is the tool that ensures our relevance in the society. It is the application of scientific knowledge for practical purposes, especially in industry. Technology is the result of accumulated knowledge, application of skills, methods, and processes used in industrial production and scientific research.
Technology is embedded in the operation of all machine and electronic devices, with or without detailed knowledge of their function, for the intended purpose of an organization[8]. The technologies of society consist of what is known as systems. Systems operate by obtaining an input, altering this input through what is known as a process, and then producing an outcome that achieves the intended purpose of the system[9].
Notwithstanding the law of patent which cuts across technological brainchild in this age of advanced technology, it is however very saddening that the pace of industrial and technological development in Nigeria is very slow. The stride of technological advancement in Nigeria being a controversial subject is in itself a colossus subject of discourse.
Technology law is all about regulating the smooth running of technology users and inventors through a law; that is, it is the law that regulates the activities of the technology space. Thus, technology law is a blanket concept that includes financial technology laws, crypto currency regulations, digital rights laws, block chain laws, inter alia. The criteria that needs to be satisfied to obtain a patent are set out in national IP Laws and may differ from one country to another. But generally, to obtain a patent an inventor needs to demonstrate that their technology is new (novel), useful and not obvious to someone working in the related field[10]. To do this, they are required to describe how their technology works and what it can do.
Computer software is expensive to develop but relatively easy to copy. Today, scientific and technological changes are occurring so rapidly and across such a broad spectrum that they are creating unprecedented pressures for change in intellectual property protection in Nigeria and abroad. Changes in technology also have blurred the distinction between inventions, which have been traditionally protected by patents. A computer program, for example, may be regarded as a literary work and a functional work, because it gives instructions to a computer to make it perform, a function. In the United States, computer programs are protected primarily by copyrights, although in recent years the U.S. Patent and Trademark Office has granted an increasing number of patents for computer programs[11].
Changes in technology, however, occasionally result in inventions that do not fit the old categories of patentable subject matter or cannot meet other requirements for patentability in certain countries. Hence, the need for prescient technological laws and regulations that will cater for the continuous loom.
Legal Framework
Legal framework is a broad system of rules that governs and regulates decision making, agreements, laws etc. It is a body of domestic and international laws that apply in a particular country, that give structure to the relationship between the state and the population and define the parameters for legal conduct.
The following laws and rules govern intellectual property and technology space in the country:
- The Constitution
- Patents and Designs Act
- The National Information Technology Development Agency Act
- The WIPO Convention
- Companies and Allied Matters Act
- Federal Competition and Consumers Protection Act
- Nigerian Communication Act
- The Constitution[12]
Section 18(2) of the Constitution provides that:
‘‘the government shall promote science and technology’’
Fundamental Objective and Directive Principles of State Policy are guidelines or principles given to the institutes for governing the country and are provided in Chapter II of the Nigerian Constitution. They are not enforceable by any court of law but the principles laid down there are considered fundamental in the governance of the country. The non-justiciability of these principles is a major drawback to the promotion of technological advancement in the country.
- Patents and Designs Act[13]
This protection is of tremendous importance to technicians and technologists, to computer engineers and telecommunication engineers. The lifespan of a patent lasts for 20 (twenty) years provided the annual renewal fees are paid for the duration of its potential life. Section 1 of the Patents and Designs 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 talented invention and also is new, results from inventive activity and is capable of industrial application.
One of the benefits of patenting one’s invention is that it helps to create market monopoly over that invention thereby providing the company the avenue to build its brand, attract customer confidence in the product and simultaneously increases the income/profit margins of the company.
- The National Information Technology Development Agency Act[14]
It is the enabling law that creates the framework for the planning, research, development, standardization, application, coordination, monitoring, evaluation and regulation of Information Technology services in Nigeria. This is done by developing standards, guidelines, and regulations for that purpose. Section 1 of the Act established a body known as National Information Technology Development Agency (NITDA). The agency is vested with varied powers so as to regulate all Information Technology practices in Nigeria[15].
- The WIPO Convention[16]
The WIPO Convention is the constituent instrument of the World Intellectual Property Organization (WIPO), was signed at Stockholm on July 14, 1967, came into force in 1970 and was amended in 1979. WIPO Convention birthed the World Intellectual Property Organisation which in 1974 became one of the specialized agencies of the United Nations System.
Its origin dates back to 1883 and 1886 when the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works provided for the establishment of an ‘‘International Bureau’’. The two bureaus were united in 1893 and, in 1970, were replaced by the World Intellectual Property Organization, by virtue of the WIPO Convention.
Nigeria became a proportion in relation to a whole (WIPO) in 2005. In December 2017, the WIPO Director General and the Permanent Representative of Nigeria to the United Nations and other International Organizations in Geneva, signed the agreement established the WIPO Nigeria Office (WNO). Its office is currently located within the United Nations House in Abuja, Nigeria’s Federal Capital Territory. The office which is staffed by responsive professionals dedicated to providing high quality information, assistance and services to stakeholders[17].
- Companies and Allied Matters Act[18]
Micro, Small and Medium Enterprises, MSMEs are the backbone of the Nigerian economy, the sector contributes to job creation and skill development, industrial diversification, exports and helps to stimulate the economy. It can also improve local technology, output diversification and development of indigenous entrepreneurship. A company may be formed by two or more persons complying with the requirements of CAMA in respect of registration of the company[19].
A company once registered becomes a corporate body and a legal personality. It can own, dispose of, own movable and immovable property. A company has the right to protect its inventions product of labour from being unlawfully annexed.
- Federal Competition and Consumers Protection Act[20]
The Federal Competition and Consumers Protection Commission is the highest competition regulator in Nigeria, a creation of its enabling law. Section 17(a) of the Act empowers the commission to administer and enforce provisions of every Nigerian law with respect to competition and protection of consumers.
The Federal Competition and Consumer Protection Commission (FCCPC) have partnered with National Information Technology Development Agency (NITDA) in tackling increasing data privacy abuse by technological inventors within the space. It can also regulate the level of competition that exist between technological experts so as to leave the domain a healthy one for stakeholders to thrive.
- Nigerian Communication Act[21].
The Nigerian Communication Commission is a creation of the Act. The Information and Communication age has seen data exchange become a common feature and integral part of commercial transaction. It has become imperative to regulate how that vast amount of personally identifiable data is managed. For instance, the Google-owned YouTube’s algorithm feeds off personal data (e.g. user information, likes, searches, etc.) to suggest what video users may like or find interesting[22].
Inventions of Information and Communication Technology (ICT) companies in their business approach to boost development across all sectors of the Nigerian economy must be protected by law. Its ideas and creations especially should be protected by law as well the protection of the target consumers.
Conclusion
In addition, the above mentioned are included but not limited to the laws that regulate the tech space. For successful regulation of the domain, laws and regulations such as the Banks and other Financial Institutions Act[23], the Securities and Exchange Commission (SEC) Rules[24] and the Insurance Act[25] will streamline licenses, levies and develop regulations that adequately govern the activities of tech companies without stifling their growth.
Finally, intellectual property and technology law is at the core of any major business transaction or strategic dispute. It has become one of the most critical legal areas as companies continue to expand and protect their technologies, brands, products, data and services around the globe.
Oluwatobi Awe writes from Lagos. He can be reached at tobiawe13@gmail.com
Footnotes
[1] https://legaljobs.io/blog/intellectual-property-statistics/
[2] Daily Trust, ‘Nigeria’s Economy and Tech Ecosystem’ (Daily Trust, 2022) https://dailytrust.com/nigerias-economy- and-tech-ecosystem accessed 18 August, 2022.
[3] Bryan A. Garner, Black’s Law Dictionary, 10th Edition, Thompson Reuters.
[4] https://advocaat-law.com/wp-content/uploads/2021/11/185c1fa9abd8fb15220da8bba04cc250.pdf
[5] Babafemi F.O, Intellectual Property the Law and Practice of Copyright, Trade Marks, Patents and Industrial Designs in Nigeria (1st Ed, 2006).
[6] Ibid
[7] https://www.researchgate.net/profile/Desmond-Oriakhogba 2/publication/349120523_Intellectual_Property_Law_in_Nigeria_Emerging_Trends_Theories_and_Practice/links/6021888aa6fdcc37a8126f10/https://www.researchgate.net/profile/Desmond-Oriakhogba
[8] https://en.wikipedia.org/wiki/Technology
[9] Ibid
[10] supra
[11] https://nap.nationalacademies.org/read/2054/chapter/3#7
[12] Constitution of the Federal Republic of Nigeria 1999 (as amended)
[13] CAP P2 LFN 2004
[14] NITDA Act CAP N156 LFN 2004
[15] Section 6 NITDA Act CAP N156 LFN 2004
[16] 28 September, 1979 (as amended)
[17] About the WIPO Nigeria Office https://www.wipo.int/about-wipo/en/offices/nigeria/about.
[18] CAMA 2020
[19] CAMA 2020, Section 18
[20] FCCP Act 2019
[21] CAP N97 Vol 10 FN 2004
[22] Francis Ololuo, ‘Data Privacy and Protection under the Nigerian Law’ (S.P.A Ajibade 12th July, 2020) https://spaajibade.com/data-privacy-and-protection-under-the-nigerian-law-francis-ololuo/ (accessed 30th August, 2022)
[23] 2020
[24] 2013
[25] CAP I17 Vol 7 LFN 2004