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posted 5 years ago
is not the strongest of the species that survives, nor the most intelligent
that survives. It is the one that is the most adaptable to change, that lives
within the means available and works co-operatively against common threats.”
“In
the struggle for survival, the fittest win out at the expense of their rivals
because they succeed in adapting themselves best to their environment.”
– Charles
Darwin [1859]
Primer: Charles Darwin posited that species survive and propagate themselves not by virtue of sheer
strength or intelligence but based on their ability to adapt to their
surroundings. This ability to be flexible and to fluidly navigate our
environment underscores all human dealings and behaviour. To bring this home to this audience in relation to intellectual property law
and practice, we live in a world that is sentient, from our surrounding
environment to the manner in which we interact with others and how we get our
daily tasks accomplished. We are at a pivotal moment in human history and about
to witness an exponential growth in technological interconnectedness and the interoperability
of intelligent machines animated by computer algorithms and software programmes.
In the not-too-distant future, the world as we know it may become
unrecognisable. The seamless interactions between our smart devices and
wearables, the automation of our daily chores, and the provision of legal
services will soon become irrevocably altered via technology. Anyone who is
paying close attention to these trends would be wise to prepare to meet them
and that preparation is what sets one individual/professional/nation apart from
the crowd.
It takes consistent hard-work,
contemplation, effective planning and a clear vision of the intended objective
to remain relevant. A good starting point is to have a clear vision of what we
wish to accomplish as a nation and if I may be so bold, as a developing country
we obviously would want to become a developed nation. How we attain our
developmental goals is directly proportional to our level of industrialisation.
To become industrialized, we must acquire the skills-set, the technological tools
and innovation in order to do so. Acquisition of the requisite skills-set,
technological tools and innovativeness can either be home grown or imported, or
a combination of these methods. Whichever way we decide to accomplish this, we
would need to encourage those creators and innovators who will drive our quest
for industrialisation. One very effective way of encouraging our innovators is
by recognising and strengthening the IP regime in the country. To do this, we
need to ensure that our laws are compliant and up to date, user friendly and
easily enforceable within the framework of an efficient administrative structure.
“Africa has a great tradition
of innovation and creativity…and innovation is a central driver of economic
growth, development and better jobs. It is the key for firms to compete
successfully in the global marketplace…Intellectual property is an
indispensable mechanism for translating knowledge into commercial assets – IP
rights create a secure environment for investment in innovation and provide a
legal framework for trading in intellectual assets.”[3]
International Trade, Development and Intellectual
Property: In an increasingly
globalised world, the interdependence of human activities and actions are even
more pronounced and deserving of focused attention. Within this framework, the
relationship between international trade, development and IPRs must also be
recognized and harnessed to enable the country to attain its developmental
objectives.[4] Whilst
we have underscored the connection between development and IPRs, we also
need to objectify the role of international trade as the bedrock upon which
they operate and development as the outcome of that interaction.
The relationship between
these three was properly articulated under the auspices of the WTO and its
appendant instrument, the TRIPS Agreement.[1]
The integration process was justified on the basis that the proliferation of
infringing and pirated products negatively interferes with access to legitimate
ones and constitutes a barrier to trade and that unduly burdensome registration
formalities and approval requirements hinders trade and investment and stalls
IP transfer agreements.[2]
Under the TRIPS Agreement member states are expected to address the following
minimum requirements for ensuring compliance with their obligations under the
WTO arrangement: a) compliance with a set of minimum standards within national
IP laws b) institution of minimum criteria for national enforcement of IP
rights through civil, criminal and administrative processes c) subjecting the
resolution of IP disputes to the WTO dispute settlement system and d)
compliance with common procedural requirements for the administration and
maintenance of IP rights.[3]
What Other Developing Countries are Doing: A good indication of how various countries are
faring vis-à-vis technological innovativeness and intellectual property recognition
and protection is mirrored in the annual Report on the Global Innovation Index
(GII), published by WIPO.[4]
In the 2019 edition of this report, Nigeria moved up two notches to the 116th
position in the world ranking but still lags behind other African countries
regarded as more innovative and presumably that adopt stronger and more
effective mechanisms for IPR protection and enforcement.[5]
Within the sub-region South Africa (63rd),[6]
Kenya (77th)[7]
and Mauritius (82nd)[1]
came out tops in this year’s rankings, followed by Botswana (93rd),
Rwanda (94), Senegal (96th) and Tanzania (97th). Although
the report notes that sub-Saharan Africa performs relatively well on the
innovation index with more African economies among the group of innovation
achievers than any other region in the world since 2012, Nigeria was categorized
as one of the countries that is underperforming based on its level of
development.
By contrast, Singapore which is ranked 8th
in the 2019 rankings received the following review:
“Singapore aims to be a center of innovation and
a key node along the global innovation supply chain where innovative firms
thrive on the basis of intellectual property and intangible assets. To achieve
this ambition, one strategy is to strengthen Singapore’s innovation ecosystem
by helping enterprises to innovate and scale up. Singapore envisages advancing
its conducive environment, international linkages, capabilities in intangible
asset management, IP commercialization, and skilled workforce. In 2016, the
Government of Singapore committed US$14 billion for research, innovation, and
enterprise activities. It identified four strategic domains for prioritized
research funding: (1) advanced manufacturing and engineering, (2) health and
biomedical sciences, (3) services and digital economy, and
(4) urban solutions and sustainability. The Intellectual Property Office of
Singapore (IPOS) has also transformed to better serve global innovation
communities by conducting regular reviews of Singapore’s IP policies and
building capabilities in intangible asset management and IP commercialization,
including IP skills.”[1]
What Nigeria Should be Doing: Within the context of
adaptation for survival, there are a couple of immediate initiatives the
country should be seriously invested in, like ensuring that our basic/enabling
laws are brought up to date and in step with global trends as much as
practicable. This forms the framework upon which other proactive initiatives
can be superimposed.[1]
The next step is to articulate national innovation/IP policy goals and objectives,
milestones and a clearly identifiable plan of action.[2]
This should form part of the national development policy along with other
initiatives like the science and technology policy, the telecommunications
policy,[3]
the education policy etc. One of the ways to advance effective policy goals is
to set up a specific commission or agency charged with the responsibility for
addressing the challenges in each sector. A good example is the Nigerian
Copyright Commission (NCC) which has accomplished several milestones in the
Copyright sector.[4]
The IPCOM bill which has been pending now for a couple years before the
legislative houses was meant to establish an industrial property commission to
pursue certain sector-specific goals like the NCC does for the copyright industry.
Next is the necessary empowerment of these agencies
with the requisite tools and funding to enable them to achieve their designated
goals.[5]
Having underscored the fact that IPRs are the driving force behind our
industrialisation, innovation and development aspirations, there’s a need to
design a systematic process for teaching, training and supporting our creators
and innovators, providing the necessary funding through the public and private
sectors, providing legal support for the protection and enforcement of IPRs.[6]
Part of these initiatives involve the training of law students, lawyers and
judges on the fundamentals of IP law and enforcement, and on the drafting of
statutes in the IP sector.[7]
Finally, the collaboration of the various agencies of government with a bearing
on innovation and development is vital in
achieving our national goals in the near and long-term.[1]
Whilst individually these agencies are undoubtedly doing their very best based
on the resources at their disposal, the absence of cross pollination and deep
collaboration takes away from the positive accomplishments that are feasible.
Much like the importance of
regional integration as a tool for economic growth nationally and within the
sub-continent, regional IP organisations are designed to leverage on the unique
strengths and weaknesses of member nations to advance our common economic
goals.[2]
It is time to re-consider our position regarding membership of these groups as
well as participation in the Madrid system for the international registration
of trademarks.[3]
Other initiatives instituted or contemplated by the African Union like the
NEPAD[4]
and the PAIPO[5]
deserve closer examination with a view to identifying areas of mutual
collaboration and partnerships in the sciences, technology and innovation (STI)
fields.
Having largely addressed the topic as framed by
the organizers of this event, I must not fail to point out that as a developing
nation, there is a need to tailor our IPR system to facilitate our economic and
developmental objectives based on our peculiar needs.[6]
Merely strengthening our IPR system for the sake of global acceptance is bound
to stunt our growth and prolong the turnaround
time for industrialisation.[1]
I have addressed the fact elsewhere that stringent IPR laws and institutions
even though this may have some salutary effect on our creatives, may also
conversely interfere with the development of an enduring innovative culture and
the technological advancement of the nation by impeding the much needed access
and collaboration required for sustained economic growth.[2]
A brief look into the annals of time will disclose that the current advanced
economies thrived on a relaxed IPR system in order to spur the growth of their
local enterprises and innovators, introducing more stringent regulations after
they had achieved solid growth in nation building backed by the strong multinationals
which they fostered and nurtured.[3]
Although we do not recommend blatant violation and the illegal appropriation of
foreign IPRs, we need to borrow a leaf from this strategy and introduce
necessary adjustments to our IP laws and regulations to facilitate our
industrialisation process.[4]
Some scholars argue that getting the balance
right between the competing interests highlighted above involves ensuring that
the costs imposed by the conferment of monopoly rights do not exceed the benefits
of the anticipated new knowledge and ideas thereby generated.[1]
Some ostensible solutions include the reduction of terms of protection in some
cases for certain IPRs, raising the originality bar for patents and some other
traditional fields and facilitating the utilisation of compulsory licenses and
parallel imports as appropriate in the national interest.
“…the foundation of economic
development is the acquisition of more productive knowledge. The stronger the
international protection for IPRs is, the more difficult it is for the follower
countries to acquire new knowledge. This is why, historically, countries did
not protect foreigners’ intellectual property very well (or at all) when they
needed to import knowledge. If knowledge is like water that flows downhill,
then today’s IPR system is like a dam that turns potentially fertile fields
into a technological dustbowl.”[2]
FIRST PRESENTED TO THE STAFF & STUDENTS OF THE FACULTY OF LAW, UNIVERSITY OF ABUJA, NIGERIA.
FOOTNOTES:
[1] John C. Onyido, Esq., Partner and Head Intellectual
Property & Technology Department, SPA Ajibade & Co., Lagos, Nigeria.
Paper delivered to Law students University of Abuja, 18th September
2019.
[1] [1809
– 1882] On the Origin of Species by Means of Natural Selection, 1859.
[1] In the struggle for resources, the principle of natural
selection explained why some species thrived while others floundered. “…specifically,
what Darwin saw was that all organisms competed for resources, and those that
had some innate advantage would prosper and pass on that advantage to their
offspring. By such means would species continually improve.” Bill Bryson, A
Short History of Nearly Everything, Broadway Books, New York 2003 p. 384.
[1] A good example of adaptation in the legal profession relates
to the integration of new forms of technologies in professional services
delivery and in meeting the evolving needs of clients in efficient and
cost-effective manner. See generally, John Onyido: GUARDIAN NEWSPAPER interview
of 1st January 2019, pp. 29-31, available at https://m.guardian.ng/features/law/rules-on-professional-advertising-are-too-rigid-and-formalistic/
accessed 12th September 2019.
[1] Several of our local IP laws are badly in need of revision and
significant overhaul. There are currently several bills awaiting legislative
review prominent among which are: the IPCOM Bill, the proposed Trade Marks Bill
and the Copyright Bill, respectively.
[1] Francis Gurry, WIPO Director General, being part of a speech delivered
at the African Ministerial Conference, November 2015.
[1] See John Onyido, “Teaching Intellectual Property Law as a
Pedagogical Imperative in the Faculty of Law University of Ibadan”, Nigeria 2018,
p. 14.
[1] Annexure 1C to the WTO Agreement.
[1] Mitsuo Matshushita et al, World Trade Organisation: Law,
Practice and Policy, 2nd ed., Oxford University Press, 2006.
[1] Ibid., at p. 705.
[1] In
collaboration with INSEAD and Cornell University (S.C. Johnson School of Business).
[1] Global Innovation Index, 2019 with the theme: Creating
Healthy Lives – The Future of Medical Innovation, available at file:///C:/Users/johnc/Desktop/Global%20Innovation%20Index.wipo_pub_gii_2019.pdf,
accessed 10th September 2019.
[1] But see Sharon Dell, “South Africa: Intellectual Property
Rights Failing”, University World News, July 2011 available at: https://www.universityworldnews.com/post.php?story=20110715165939648,
accessed 15th September 2019 (arguing that the South African IPR
regime is not supporting the national system of innovation sufficiently but appears
to unwittingly facilitate exploitation by foreign interests). See also Jonathan
Berger and Andrew Rens, “Innovation and Intellectual Property in South Africa:
The Case for Reform” available at: http://ip-unit.org/wp-content/uploads/2018/05/Innovation-IP-in-SA.pdf,
accessed 15th September 2019 (pointing out that the non-examination
system and the questionable quality of registered inventions under the South
African Patent regime is partly responsible for the marginal protection of
locally issued patents in foreign jurisdictions). In May 2018, South Africa
came up with a new policy to improve access to medicines. See South Africa
adopts new IP policy improving access to medicine, available at: https://unctad.org/en/pages/newsdetails.aspx?OriginalVersionID=1762&Sitemap_x0020_Taxonomy=UNCTAD%20Home;#1535;#Intellectual
Property (IP);#2248;#Impact Story (UNCTAD in its report underscored the fact
that, “The purpose of IP policy is to guide policy makers on how to use
intellectual property to promote certain domestic development objectives, such
as innovation, technology transfer and industrial development.”)
[1] See Justus Wanzala, “Kenya Takes Steps to Enhance Intellectual
Property Awareness”, Intellectual Property Watch, 2016 available at: https://www.ip-watch.org/2016/01/12/kenya-takes-first-steps-to-enhance-intellectual-property-awareness/,
accessed 15th September, 2019 (reviewing the terms of reference of a
specialized Board to guide the activities of the Kenya National Innovation
Agency (KNIA) through the creation of awareness about IPR related matters and
introducing a collaborative atmosphere among varied technological innovations
through incubation initiatives and the diffusion of technical know-how). See
also Patricia Kameri-Mbote, “Intellectual Property Protection in Africa: An
Assessment of the Status of Laws, Research and Policy Analysis on Intellectual Property
Rights In Kenya”, IELRC Working Paper 2005-2 available at: http:www.ielrc.org/comntent/w0502.pdf
(questioning the extent to which Kenya’s IP laws and institutions have
contributed to its national development, while pointing out that the linkages
between IPRs, endogenous technological know-how and inventive capacity are
still lacking).
[1] With the recognition of the importance IPRs to economic and
social development, the government of Mauritius developed an Intellectual
Property Development Plan (IPDP) in collaboration with WIPO to ensure that stakeholders,
law enforcement, users and generators of IP have the requisite know-how and
necessary capacity to utilise IP as a tool for promoting innovation, research,
investments and economic growth. See the IPDP of Mauritius, available at http://www.mauritiustrade.mu/ressources/pdf/IPDP-FINAL-REPORT-2.pdf.
And
see Le Mauricien, “World Intellectual Property Day – Mauritius Still Has a Lot
to Catch Up!” available at https://www.lemauricien.com/article/world-intellectual-property-day-mauritius-still-has-a-lot-to-catch-up/,
accessed 14th September 2019 (urging for the recognition of the human
development aspects as an essential component of the country’s IP objectives
and the need to tailor local laws to suit the needs and aspirations of the
country). See also “Mauritius Aligns Intellectual Property Incentives with
Nexus Approach”, Ernst & Young Global Tax Alert, June 2019, available at: https://www.ey.com/Publication/vwLUAssets/EY-mauritius-aligns-intellectual-property-incentives-with-nexus-approach/$FILE/EY-mauritius-aligns-intellectual-property-incentives-with-nexus-approach.pdf,
accessed, 14th September 2019.
[1] Global Innovation Index 2019, supra, at p. 22.
[1] John Onyido, “You and IP Law: The System that Promotes
Innovation and Creativity”, Paper delivered to the law students of the
University of Benin, Nigeria 2018. [Available on file with author].
[1] Ibid.
[1] See the National Broadband Plan (2013-2018) for the Telecoms
sector, available at: https://www.researchictafrica.net/countries/nigeria/Nigeria_National_Broadband_Plan_2013-2018.pdf,
accessed 13th September 2019.
[1] Under section 34 of the Copyright Act Cap C28 LFN 2004, the
Commission is responsible for overseeing all matters affecting copyright in the
country, monitoring, supervising and advising government on Nigeria’s position
in relation to its international treaty obligations, public enlightenment,
maintaining a databank of authorship etc. Over the years the NCC has embarked
on numerous enforcement raids and enforcement actions to discourage and deter
piracy and counterfeiting. It has also spearheaded the revision of our copyright
laws specifically in 1988, 1992 and 1999, respectively, as few examples.
[1] See Adejoke Oyewunmi, Nigerian Law of Intellectual Property,
University of Lagos Press (2015/2019) pp. 15-19, for a brief review of the
statutory and institutional framework for the Administration of Intellectual
Property rights in Nigeria.
[1] Sope Adegoke, “Intellectual Property Rights in Sub-Saharan Africa”
2011 p. 53, available at: http://scholarship.claremont.edu/cmc_theses/289,
accessed 11th September 2019.
[1] See generally, John Onyido, “Teaching Intellectual Property
Law as a Pedagogical Imperative at the Faculty of Law of the University of
Ibadan, Nigeria”, op. cit. (n. 7).
[1] See for instance, The Trump Administration’s Annual
Intellectual Property Report to Congress, developed by the Office of the U.S.
Intellectual Property Enforcement Coordinator, bringing together coordinated
efforts of the White House, the Departments of Commerce, Justice, Homeland
Security, State, Treasury, Health and Human Services, and Agriculture, the
Office of the U.S. Trade Representative, and the U.S. Copyright Office. The IPEC
Annual Intellectual Property Report 2019 is available here: file:///C:/Users/johnc/Desktop/IPEC-2019-Annual-Intellectual-Property-Report-to-Congress%20(1).pdf
(the report recognises that for the US IP and innovation policy objectives to
be successful it must recognize and include the collaborative efforts of all
branches of government, the private sector and international partners).
[1] The African Continental Free Trade Agreement (ACFTA) signed in
Kigali, Rwanda in 2018 is a vital regional trade agreement that portends great
potentials for the continent. Nigeria and South Africa the biggest economies in
the region only ratified the agreement following months of executive
reluctance. In the field of IP regional bodies include ARIPO and OAPI, for English
and French-speaking African countries respectively.
[1] The Madrid Agreement Concerning the International Registration
of Trademarks concluded 1891 and the Protocol of 1989 as amended November 12th
2007, available at: file:///C:/Users/johnc/Desktop/MadridProtocol.trt_madridp_gp_001en.pdf,
accessed 11th September 2019.
[1] The New Partnership for Africa’s Development (NEPAD) was
established by the African Union at its inception. Its expert group on science,
technology and innovation launched the ASTII in 2007 and an Observatory of Science,
Technology and Innovation Strategy for Africa in 2011.
[1] The AU also toyed with the idea of creating a Pan-African
Intellectual Property Organisation (PAIPO) to promote the harmonisation of the
IPR systems of member states, instigate measures that would assist member
states to fight piracy and counterfeiting utilising their respective IP
systems, effectively focusing the African common position on IP matters (on
genetic resources, geographical indications, biological diversity and expressions
of folklore), and assisting in developing and channelling the African IP
position at international negotiations. This proposal appears to have been
shelved in favour of closer collaboration with WIPO.
[1] See Willem Pretorius, “TRIPS and Developing Countries: How
Level is the Playing Field?”, in Global Intellectual Property Rights: Knowledge,
Access and Development (eds. Peter Drahos and Ruth Mayne), Oxfam 2002 pp.
183-97.
[1] Ha-Joon Chang, Bad Samaritans: The Myth of Free Trade and
the Secret History of Capitalism, Bloomsbury Press, New York 2008 pp. 122-144.
[1] John Onyido, “You and IP Law: The System that Promotes Innovation
and Creativity”, op. cit., at p. 4.
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