Nigeria - Protection of Property Rights Nigeria - Property Rights
The GoN recognizes secured interests in property, such as mortgages. The recording of security instruments and their enforcement remain subject to the same inefficiencies as those in the judicial system. In the World Bank publication, Doing Business 2016, Nigeria ranked 181 out of the 189 countries surveyed for registering property, a 4 place improvement over its 2015 ranking of 185. In Lagos, property registration required an average of 13 procedures over 77 days at a cost of 10.1 percent of the property value while in Kano registering property averages 9 procedures over 45 days at a cost of 11.8 percent of the property value.
Fee simple property rights remain rare. Owners transfer most property through long-term leases, with certificates of occupancy acting as title deeds. Property transfers are complex and must usually go through state governors' offices. In Abuja, the Federal Capital Territory government cancelled and began a process of reregistering all property allotments, refusing to renew those it deemed not to comply with the city's master plan. Authorities have often compelled owners to demolish buildings on such property allotments, including government buildings, commercial buildings, residences, and churches, even in the face of court injunctions. Therefore, acquiring and maintaining rights to real property has become problematic.
Clarity of title and registration of land ownership remain significant challenges throughout rural Nigeria, where many smallholder farmers have only ancestral or traditional use claims to their land. Nigeria’s land reforms have attempted to address this barrier to development but with limited success. A major American investment in an industrial-scale farm in rural Nigeria was cancelled in 2015 in part because the land ownership and the relocation of smallholder farmers was not carried out by the state government, which is vested with such power under Nigerian law.
Intellectual Property Rights
Nigeria’s legal and institutional infrastructure for protecting intellectual property rights remains in need of further development and more funding, even though there are laws on the books to deal with enforcing most IPR violations. The areas where the legislation is deficient include online piracy, geographical indications, and plant and animal breeders’ rights.
Copyright protection in Nigeria is governed by the Copyright Act of 1988, as amended in 1992 and 1999, which provides an adequate basis for enforcing copyright and combating piracy. That Act is administered by the Nigerian Copyright Commission (NCC), a division of the Ministry of Justice. U.S. business interests have previously noted that the Copyright Act needs to be amended to provide for stiffer penalties for violators. Trademarks are covered under the Trademarks Act of 1965, while patents and designs are protected under the Patents and Designs Act of 1970. Both of these Acts are administered by the Ministry of Industry, Trade, and Investment through its Trademarks, Patents and Designs Registry (TPDR). TPDR officials have benefitted from capacity building and training from U.S. agencies, including most recently from the U.S. Patent and Trade Office.
The lack of new IPR legislation means some newer IPR categories are not currently addressed in Nigerian law, including online piracy, geographical indications, and plant and animal breeders’ rights. Efforts to pass legislation to fill these gaps have continued over a period of years but have not yet succeeded. Most recently, in October 2015, the NCC released a draft Revised Copyright Bill, with a public comment period open until January 2016. The draft legislation seeks to include implementation of the Copyright Treaty, the Performances and Phonograms Treaty, the Beijing Treaty for Protection of Audiovisual Performances, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. These treaties address important digital communication and broadcast issues that have only become more relevant since Nigeria signed them. Until Nigeria becomes a contracting party to these treaties, Nigeria cannot be held accountable to these treaties’ provisions. The GoN and National Assembly have also discussed legislation – first introduced in 2006 – that would combine the NCC and the TPDR into one IPR organization, which could provide more effective and efficient protections and enforcement (the TPDR currently does not have enforcement authority). Political wrangling has reportedly been largely responsible for preventing such legislative solutions from being developed and implemented.
Nigeria is a member of the World Intellectual Property Organization (WIPO) but has not yet passed legislation to ratify two WIPO treaties that it signed in 1997: the Copyright Treaty and the Performances and Phonograms Treaty. These treaties address important digital communication and broadcast issues that have only become more relevant since Nigeria signed those 18 years ago.
Recognition of geographical indications would be among the obligations the long-delayed Economic Partnership Agreement (EPA) between the EU and ECOWAS would impose on Nigeria (and all other ECOWAS member countries). ECOWAS has yet to ratify that EPA, however.
Local content guidelines issued by the Ministry of Communication Technology (MCT) in 2013 (Guidelines for Nigerian Content Development in Information and Communications Technology) have raised concerns about, among other things, the future ability of the GoN to protect data and trade secrets, due to the localization processes requiring the disclosure of source code and other sensitive design elements as a condition of doing business. The IT industry in Nigeria has pushed back strongly against several of the measures in those guidelines, which remain in effect but have not been fully enforced. While the National Information Development Agency (NITDA) does not currently require in-country product manufacturing due to the difficult business environment in Nigeria, it has noted that it would continue to press for local ICT capacity building programs.
Violations of Nigerian IPR laws continue to be widespread, due in large part to a culture of inadequate enforcement. That culture stems from several factors, including insufficient resources among enforcement agencies, lack of GoN political will and focus on IPR, porous borders, entrenched trafficking systems that make enforcement difficult (and sometimes dangerous), and corruption. The NCC, which has primary responsibility for copyright enforcement, is generally viewed as understaffed and underfunded relative to the magnitude of the IPR challenge in Nigeria. According to its report for 2015, the NCC seized 1,783,914 copyrighted works, including DVDs, books, MP3s, and software. Anti-piracy operations in the northern States of Kaduna and Kano in October 2015 led to 98 arrests. Over the past several years, the NCC conducted more than 180 anti-piracy operations across the country, arrested 403 suspects, and seized approximately 5.9 million units of pirated works (with an estimated market value of approximately 40 million USD). Those arrests have resulted in criminal convictions against copyright offenders, with sentences including fines, imprisonment, or both. More than 170 criminal copyright infringement cases remain pending in various courts across the country. The Nigerian Police, the Economic and Financial Crimes Commission, and the National Customs Service all have a supporting role in IPR enforcement, but enforcement actions are typically coordinated and led by the NCC, as these other agencies – also constrained by resource limitations – do not view IPR enforcement as a primary mandate.
Awareness of IPR concerns among the general populace, including among intellectual property rights holders themselves and those who violate those rights, is generally low. The rapid growth in the size of Nigeria’s own domestic creative industries, including “Nollywood” (continuing to build on its growth in recent years, Nigeria’s entertainment and music sector grew over 6.5 % through the 3rd Quarter of 2015), as well as the growth of internet use in Nigeria, means the Nigerian economy has more to lose than ever before from inadequate IPR protections, including inadequate online digital piracy protections.
The NCS has general authority to seize and destroy contraband. Under current law, copyrighted works require a notice issued by the rights owner to Customs to treat such works as infringing, but implementing procedures have not been developed and this procedure is handled on a case by case basis between the NCS and the Nigerian Copyright Commission (NCC). Once seizures are made, the NCS invites the NCC to inspect and subsequently take delivery of the consignment of fake goods for purposes of further investigation because the NCC has the statutory responsibility to investigate and prosecute copyright violations. The cost of moving and storing infringing goods is to be borne by the NCC. If, after investigations, any persons are identified with the infringing materials, a decision may be taken to prosecute. Where no persons are identified or could be traced, the Commission may obtain an order of court to enable it destroy such works. The Commission works in cooperation with right owners associations and stakeholders in the copyright industries on such matters.
Many USG agencies, including the Department of Justice, the U.S. Patent and Trademark Office, the U.S. Copyright Office, the Department of Homeland Security, the Internal Revenue Service, and others have all led or participated in IPR capacity building efforts in recent years that have included participants from Nigeria’s Economic and Financial Crimes Commission, the Nigerian Customs Service, the Nigerian Police, the Nigerian Copyright Commission, the Nigerian Trademarks, Patents, and Designs Registry, the Standards Organization of Nigeria, and the National Agency For Food and Drug Administration and Control.
Protecting Your Intellectual Property in Nigeria
Several general principles are important for effective management of intellectual property rights (IPR) in Nigeria. First, it is important to have an overall strategy to protect your IP. Second, IP may be protected differently in Nigeria than in the United States. Third, rights must be registered and enforced in Nigeria, under local laws. For example, your U.S. trademark and patent registrations will not protect you in Nigeria. There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer copyright protection to foreign works in accordance with international agreements.
Granting patents registrations generally is based on a first-to-file, including in Nigeria. Similarly, registering trademarks in Nigeria is also based on a first-to-file, so you should consider how to obtain patent and trademark protection before introducing your products or services to the Nigeria market. It is vital that companies understand that intellectual property is primarily a private right and that the U.S. government cannot enforce rights for private individuals in Nigeria. It is the responsibility of the rights holders to register, protect, and enforce their rights where relevant, retaining their own counsel and advisors. The Nigerian Copyright Commission is the primary enforcement agency for copyright violations. Companies may wish to seek advice from local attorneys or IP consultants who are experts in Nigeria law. The U.S. Commercial Service can provide a list of local lawyers upon request. Contact ambrose.thomas@trade. gov.
While the U.S. Government stands ready to assist, there is little we can do if the rights holders have not taken these fundamental steps necessary to securing and enforcing their IP in a timely fashion. Moreover, in many countries, rights holders who delay enforcing their rights on a mistaken belief that the USG can provide a political resolution to a legal problem may find that their rights have been eroded or abrogated due to legal doctrines such as statutes of limitations, laches, estoppel, or unreasonable delay in prosecuting a law suit. In no instance should U.S. Government advice be seen as a substitute for the responsibility of a rights holder to promptly pursue its case.
It is always advisable to conduct due diligence on potential partners. A good partner is an important ally in protecting IP rights. Consider carefully, however, whether to permit your partner to register your IP rights on your behalf. Doing so may create a risk that your partner will list itself as the IP owner and fail to transfer the rights should the partnership end. Keep an eye on your cost structure and reduce the margins (and the incentive) of would-be bad actors. Projects and sales in Nigeria require constant attention. Work with legal counsel familiar with Nigeria laws to create a solid contract that includes non-compete clauses, and confidentiality/non-disclosure provisions.
It is also recommended that small and medium-size companies understand the importance of working together with trade associations and organizations to support efforts to protect IP and stop counterfeiting. There are a number of these organizations, both Nigeria or U.S.-based. These include:
The U.S. Chamber and local American Chambers of Commerce.
Manufacturers Association of Nigeria (MAN)
International Intellectual Property Alliance (IIPA).
International Trademark Association (INTA).
World Intellectual Property Organization (WIPO)
The Coalition Against Counterfeiting and Piracy.
International Anti-Counterfeiting Coalition (IACC).
Pharmaceutical Research and Manufacturers of America (PhRMA).
Biotechnology Industry Organization (BIO).
A wealth of information on protecting IP is freely available to U.S. rights holders. Some excellent resources for companies regarding intellectual property include the following:
For information about patent, trademark, or copyright issues -- including enforcement issues in the US and other countries -- call the STOP! Hotline: 1-866-999-HALT or visit www.STOPfakes.gov.
For more information about registering trademarks and patents (both in the U.S. as well as in foreign countries), contact the U.S. Patent and Trademark Office (USPTO) at: 1-800-786-9199, or visit http://www.uspto.gov/.
For more information about registering for copyright protection in the United States, contact the U.S. Copyright Office at: 1-202-707-5959, or visit http://www.copyright.gov/.
For more information about how to evaluate, protect, and enforce intellectual property rights and how these rights may be important for businesses, please visit the “Resources” section of the STOPfakes website at http://www.stopfakes.gov/resources.
For information on obtaining and enforcing intellectual property rights and market-specific IP Toolkits visit: www.stopfakes.gov/businesss-tools/country-ipr-toolkits. The toolkits contain detailed information on protecting and enforcing IP in specific markets and also contain contact information for local IPR offices abroad and U.S. government officials available to assist SMEs.
The U.S. Department of Commerce has positioned IP attachés in key markets around the world. You can get contact information below for the IP attaché who covers the following countries: Middle East and North Africa, Aisha Y. Salem firstname.lastname@example.org.
Resources for Rights Holders
For additional information about treaty obligations and points of contact at local IP offices, please see WIPO’s country profiles athttp://www.wipo.int/directory/en/.
Embassy point of contact: Trade and Investment Officer EconNigeria@state.gov
Local lawyers list: http://nigeria.usembassy.gov/acs_abuja_legal_information.html