INTRODUCTION

Day in, day out, Creatives are faced with intellectual property (IP) related issues. These issues are stimulated by a combined effect of ignorance or minimal attention to IP as it applies in the creative industry. What happens? There is a seeming state of helplessness as an avalanche of infringement occurs without adequate recompense. This can be painful and is true, painful.

IP protection is the bedrock of creativity. It is deserving of this stead as subjects and products of creativity are deserving of protection. They constitute invaluable assets in the creative industry. However, individuals are quick to uphold that intricate complexity trails the field of IP, majorly from its verbosity. While this is true to an extent, the situation is not completely irredeemable.

This article sheds light on key points that should be noted by Creatives in Nigeria, especially as it relates to the different kinds of protection available under Nigeria’s IP regime.

A PEEK INTO NIGERIA’S CREATIVE INDUSTRY

The creative industry in Nigeria is made up of key players in sub-sectors like music, dance, film, theatre, literature, fashion, television, radio, sports, arts, media, advertising, information technology, gaming. Indeed, it is vast. Common names in the industry include Nollywood, Mavin Records, Burna Boy, Wizkid, Wole Soyinka, Chinua Achebe, Chimamanda Adichie, among others.

This industry has contributed immensely to the country’s Gross Domestic Product (GDP). In a recent study by Jobberman, findings reveal that the creative industry is Nigeria’s second-largest employer and is bound to produce about 2.7 Million jobs by 2025, this is in addition to the 4.2 million jobs provided by the industry across sectors like Entertainment, Media, Beauty and Lifestyle, Visual Arts, Tourism and Hospitality. (Source: Business Insider Africa). [1]

Entrepreneurs in these different subsectors are generally referred to as ‘Creatives’.

WHAT IS INTELLECTUAL PROPERTY?

Properties or assets belonging to an individual or a company could either be physical or intangible. Physical properties/assets include land, building, machinery, gadgets, etc. Intangible properties/assets include strategies, business ideas, designs, products of creativity. The legal protection for these intangible assets is made possible through Intellectual Property protection.

Intellectual Property (IP) is a broad term used to refer to creations of the mind/intellect which can be protected by law, and which are eligible for exclusive commercial goodwill and exploitation.

The Convention Establishing the World Intellectual Property Organization (WIPO) provides that “intellectual property shall include rights relating to – literary, artistic and scientific works, – performances of performing artists, phonograms and broadcasts, – inventions in all fields of human endeavour, – scientific discoveries, – industrial designs, – trademarks, service marks, and commercial names and designations, – protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”

WHY IS IP PROTECTION RELEVANT FOR CREATIVES?

Creatives devote substantial time and resources to enhance their output. It is only fair that they are accorded legal protection which would equally enhance their economic value. IP protection is relevant for Creatives for the following obvious reasons:

  1. Strengthening Competition: Through IP protection, Creatives can prevent their works from being copied or imitated by competitors. This improves their competitive edge.
  2. Through IP protection, Creatives can be assured of a fair return on the investment made in producing and distributing their works.
  3. Works produced by Creatives are intangible assets that increase their commercial value and business proposition.
  4. Creatives can extend their market reach by licensing or assigning their IP rights for others at a fee.
  5. When creators are rewarded for their work, it creates an incentive for more work to be created. This propels innovation.

FUNDAMENTAL IP PROTECTION AVAILABLE FOR CREATIVES

  1. Copyright and Related Rights

Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Related rights are enjoyed by those who are not authors or creators but have a close relationship with the work in question. These rights are enjoyed by broadcasters, producers, performers.

The works protected by Copyright are as follows:

  • Literary works (e.g., books, magazines, newspapers, technical papers, instruction manuals, catalogs, tables, and compilations of literary works).
  • Musical works or compositions, including compilations.
  • Dramatic works (includes not only plays but also, for example, a sales training program captured on videocassettes).
  • Artistic works (such as cartoons, drawings, paintings, sculptures, and computer artwork).
  • Photographic works (both on paper and in digital form).
  • Computer programs and software
  • Maps, globes, charts, diagrams, plans, and technical drawings.
  • Advertisements, commercial prints, and labels.
  • Cinematographic works, including motion pictures, television shows, and webcasts.

Copyright protects works that are expressed in print as well as those created or stored in electronic or digital media. It is incredibly important in creative industries as it protects the creative expression of an idea, and not just the idea itself.

  1. Trademarks

A trademark is any sign that distinguishes the goods or services of one enterprise from those of other enterprises. The signs that could be used as trademarks include words, numbers, letters, symbols, colours, drawings, pictures, shapes, tastes, and smells (e.g., for perfumes). It could also be a combination of any of those signs.

In the creative industry, Trademarks are used to protect brand names, logos, colours, etc.

  1. Industrial Designs

An industrial design refers to the ornamental or aesthetic aspects of a product. It refers to the appearance of a product, for example, the appearance of a mobile phone. Even where the design of a product has technical or functional features, industrial design, as a category of intellectual property law, refers only to the aesthetic nature and appearance of the product, and is distinct from any technical or functional aspects

  1. Patents

This protects inventions and technical innovations which are capable of industrial application.

  1. Trade Secrets

These are confidential business information that constitutes the competitive edge of creators. Through this form of IP protection, Creatives can execute non-disclosure agreements to protect their confidential information.

LEGAL AND REGULATORY FRAMEWORK FOR IP IN NIGERIA

The Legal Frameworks regulating and governing Intellectual Property protection in Nigeria include:

  • The Copyright Act (as amended):[2] The Copyright Act which established the Nigerian Copyright Commission,[3] is a statutory enactment serving as the regulator of all copyright matters. The Act makes provision for the protection, transfer, infringement, of creative work, whether literary, artistic, or musical.
  • The Patents and Designs Act:[4] This Act regulates all patent matters in Nigeria and Industrial designs.
  • Trademarks Act: [5] This Act is the relevant trademark legislation in Nigeria that regulates trademark matters and provides a statutory framework for any trademark infringement.

Apart from these three, there are other legislations which are:

  • Merchandise Marks Act: [6] The Act, quite similar to Trademarks regulates trademark matters and imposes penalties for offences as to trademarks and trade descriptions with the intention to deceive. The Act criminalizes the falsification of trademarks by unauthorised persons.
  • Trade Malpractices (Miscellaneous Offences) Act: [7] It makes provision for offences committed as a result of falsification in packaging, labels, or sale of a product or other dealings for the purpose of misleading or defrauding. These offences are considered trade malpractices offences and are punishable under the Act.

Similarly, there are several Institutional bodies and parastatals responsible for regulating and governing Intellectual Property in Nigeria and they include:

  • The Nigerian Copyright Commission (NCC): They regulate any creative writing/work which cuts across music, literary and artistic work. They are also vested with the right to copyright licensing.
  • The Nigerian Broadcasting Commission (NBC): They regulate and control broadcasting rights and licenses within Nigeria.
  • The Trademarks, Patents and Designs Registry: The Trademarks, Patents and Designs Registry operates under the supervision of the Commercial Law Department of the Federal Ministry of Industry, Trade and Investment. They are responsible for regulating the filing of trademarks, industrial designs, and grants of patents in Nigeria.
  • National Office for Technology Acquisition and Promotion (NOTAP): NOTAP by virtue of the NOTAP Act, [8] is responsible for registering technical service agreements, technology transfers, and agreements.

AUTHENTICATION OF DIGITAL WORKS BY CREATIVES

In the digital sphere, works produced by Creatives are more likely to be infringed upon, especially as the internet is a borderless jurisdiction that is slippery in terms of control and management. However, Creatives still need to ensure that they take active and visible steps to authenticate their works to establish prima facie evidence of ownership. These steps include:

  1. Registration of the work with relevant authorities like the Nigerian Copyright Commission, Trademarks, Patents and Designs Registry, NOTAP, among others.
  2. Using digital rights management tools like:
  3. Digital watermark: This is most effective for photographers and videographers.
  4. Timestamp: This is equally effective for photographers and videographers. The essence is to prove the state of a content at a given time.
  5. Labeling with the relevant IP notice, for example, © for Copyright, and ™ or ® for Trademarks.
  6. Using a Digital Object Identifier (DOI). The DOI is a tag assigned to works created in a digital form for use on the internet.

CONCLUSION

The understanding of IP in the creative industry will help Creatives to protect their IP at all costs. For example, the need for non-disclosure agreements with clients when pitching confidential presentations, transfer or assignment of IP rights upon the execution of mutually acceptable terms; relevant IP clauses in freelance agreements, employment contracts, or other kinds of agreements. All these issues are a plethora of others are matters that can easily be handled given specialist legal advice by an IP specialist. Eventually, in a situation where there are claims of infringement, the IP Professional would be in the best position to address the best steps to be taken to ensure adequate compensation. All in all, an IP lawyer is, and should be, the Creative’s best friend and business partner.

REFERENCES:

[1] https://africa.businessinsider.com/local/lifestyle/new-report-shows-nigerias-creative-industry-is-the-countrys-second-largest-employer/mky68v9 accessed on 22nd June 2021 at 1:20 pm

[2] Cap C28, LFN 2004

[3] Section 34 of the Copyright Act.

[4] Cap P2, LFN 2004

[5] Cap P2, LFN 2004

[6] Cap M.10, LFN 2004

[7] Cap T12, LFN 2004

[8] Cap N.62, LFN 2004

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5 Comments

Ejeh Sunday · July 17, 2021 at 2:04 am

Well written paper on Intellectual property. Grace Kalu Esq. is a Genius

    Joy Imhoitsike · July 19, 2021 at 12:47 am

    It’s the simplicity for me. Well-done Grace. Thank you for breaking it down this way.

      Osariemen Gift Okoruwa · July 22, 2021 at 12:00 pm

      Well penned and insightful.

Nwagbo favour · July 17, 2021 at 7:43 am

Learn a a lot from this work, well done Grace Kalu Esq.

Ngwuta Okorie Margaret · July 17, 2021 at 7:41 pm

Wow
Really enlightening

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