According to the 2014 International IP Index by the U.S. Chamber of Commerce’s Global Intellectual Property Center (GIPC), Nigeria’s overall percentage score was 9.8 out of 30, placing the country 20th out of the 25 countries assessed. The report, which was released last week and titled “Charting the Course”, maps the IP environment of 25 countries from around the world utilizing 30 indicators. For the first time, the report featured two African countries — Nigeria and South Africa.
The 30 indicators extracted from the GIPC Index highlight some of the key policy challenges for Nigeria in comparison with other countries and are a good starting point to consider if we are serious about increasing foreign direct investment and technology inflows. Below are a few of the gap areas:
Patents, Related Rights, and Limitations
Patentability requirement – Score 0 out of 1
Although Nigeria received full points for its patent term protection (20 years), no point was given for its patentability requirement and this is not surprising. The Trademarks, Patents and Designs Registry in Nigeria does not carry out substantive examination of patent applications to determine novelty, inventive step or whether the invention is capable of industrial applicability and the registry is also not legally required to do so.
Patentability of Computer-Implemented Inventions (CIIs) – Score 0 out of 1
Due to the fact that the Patent and Designs Act does not define CIIs or computer programs as non-patentable, Nigeria did not receive a point under this indicator. Again the lack of substantive examination of patent applications contributed to this score.
Patent term restoration for pharmaceutical products – Score 0 out of 1
Unlike the U.S. and the European Union, which provide up to 5 years (plus 6 months if pediatric studies have been carried out) on top of the existing 20-year term of monopoly patent protection, Nigeria does not offer patent term restoration for pharmaceutical products.
Regulatory data protection term – Score 0 out of 1
Nigeria does not offer regulatory data protection for clinical data submitted by pharmaceuticals to the National Agency for Food and Drug Administration and Control (NAFDAC) in support of applications for product registration.
Copyright, Related Rights and Limitations
Legal measures that provide necessary exclusive rights that prevent infringement of copyrights and related rights (including web hosting, streaming and linking) – Score 0.25 out of 1
Nigeria scored low under this indicator firstly because of the lack of legislation on online piracy and secondly because of weak enforcement of online piracy. While the Nigerian Copyright Act contains general exclusive rights (Nigeria received points for this) and the Nigerian Copyright Commission (NCC) have been fighting against physical piracy, there is clearly the need for legal measures that address online enforcement in an increasingly digital era.
Availability of framework that promote cooperative action against online piracy – Score 0.25 out of 1
Online piracy is a serious issue in Nigeria yet there are no provisions in the Copyright Act for instituting a notice and take down mechanism. Many copyright holders have resorted to relying on the NCC Guidelines for the Provision of Internet Service, which includes a take down mechanism for ISPs and a general obligation of ISPs to disconnect subscribers when they become aware that subscribers are using the services contrary to requirements of the guidelines. Without a take down mechanism in place, Nigeria’s score of 0.25 is expected.
Digital Rights Management (DRM) Legislation – Score 0 out of 1
Again, no surprise here. Nigeria has no DRM legislation and the Copyright Act is silent with regards to DRM. The report refers to the copyright regime in Nigeria as a ‘rudimentary digital copyright regime’ and it is difficult in view of the some of the key challenging areas highlighted above, to question that description.
Trademarks, Related Rights, and Limitations
Ability of trademark owners to protect their trademarks: requisites for protection – Score 0.25 out of 1 and Legal measures available that provide necessary exclusive rights to redress unauthorized uses of trademarks - Score 0.25 out of 1
While Nigeria received full points for its trademarks term of protection and for non-restriction on the use of brands in packaging of different products, it received low scores for the ability of trademark owners to protect their trademarks and available legal measures to redress unauthorized uses.
As expected, the low scores were attributed to the fact that trademark litigation in Nigeria is a lengthy and arduous process, unregistered trademarks are only protected through passing-off, ineffective enforcement of trademarks particularly in the online space, and problems associated with counterfeiting.
Unexpectedly, the report cites a 2011 survey by BBC News that estimated that more than two-thirds of anti-malaria drugs were either counterfeit or substandard. We found it surprising that the BBC report was the chosen source for assessing the quality of anti-malaria drugs in Nigeria especially because between January 2010 and April 2012, the NAFDAC, which is Nigeria’s equivalent of the U.S. Food and Drug Administration and Control (FDA), carried out a National Survey on the Quality of Medicines Using Truscan Device, across a number of states in Nigeria. A total of 5,790 samples were tested. The results showed that 5419 samples passed (93.6 percent) and 371 sample failed (6.4 percent). With regard to anti-malaria drugs, the results showed that of 910 anti-malaria drugs tested, 732 samples passed (80.4%) and 178 samples failed (19.6%). Many studies have been carried out over the years.
Effective border measures – Score 0 out of 1
Nigeria received no points for this indicator. It is troubling to see that the border control and security in Nigeria is viewed as completely ineffective. While no explanation or data was provided to support this score, a general explanation of how this indicator is measured was given in the full report.
According to the report, this indicator is measured “by the extent to which goods in transit suspected of infringement may be detained or suspended and the extent to which border guards have the ex officio authority to seize suspected counterfeit and pirated goods without complaint from the rights holder”.
Membership and Ratification of International Treaties:
WIPO Internet Treaties – Score 0.50 out of 1 and Singapore Treaty on the Law of Trademarks – Score 0 out of 1
Although Nigeria is a contracting party to the WIPO Internet Treaties (WIPO Copyright Treaty and WIPO Performances and Phonogram Treaty), which set down international norms for preventing unauthorized access to and use of creative works on the Internet or other digital networks, it received a score of 0.50 out of 1 because it has not ratified the Treaties.
With regard to the Singapore Treaty on the Law of Trademarks, Nigeria did not receive any points because it is not a contracting party to the Treaty.