Paper Presented by Beverly Agbakoba Onyejianya, at the Public Lecture & Award held at SWAN Secretariat, National Stadium Lagos on the 26th April, 2019, to celebrate the World Intellectual Property Day. “Theme: Reach for Gold: Intellectual Property & Sports”
Distinguished Ladies and Gentlemen, esteemed members of the audience, all protocols observed, it is a pleasure to stand before you to mark this very special occasion to celebrate World Intellectual Property Day. My name is Beverley Agbakoba-Onyejianya and I am a Sports Lawyer and Entrepreneur. I practice Regulatory and Compliance law in the Sports, Technology and Entertainment fields. I am also a proud stakeholder in the business of Sports in Nigeria.
I am delighted to be a part of this program and I must thank the organizers, Friends of the Creator Artistic Foundation, for giving me this wonderful opportunity to be here to share my knowledge with you.
I can predict that there will be more change, more competitions and more opportunities in the Sports Industry in Nigeria and globally but we must prepare, evolve, adapt and get ready for these changes as soon as possible, so we are not left behind. I shall be speaking in the context of Sports business and Intellectual Property law and rather more specifically on “INTELLECTUAL PROPERTY RIGHTS (IPR) AS A CATALYST FOR GROWTH AND DEVELOPMENT OF SPORTS BUSINESS IN NIGERIA”
Aside from the current craze sweeping the world which goes by the name of Game of Thrones, I’m certain everyone here will agree with me that the Olympics, the Federation Internationale de Football (FIFA) World Cup, WBA Boxing tournament, WWE Wrestling, UEFA Champions League and various European Leagues are some of the most popular sporting events that binds the world audiences in a heartbeat. These popular sports events blur cultural, political and ethnic lines by promoting dialogue and dousing tensions. The excitement surrounding competition in these sports events, make sports a highly engaging and popular activity. Not too long ago, sports were regarded as basic entertainment, a way to pass time, something people did for leisure or school children in the playground. At present, the sports sector has evolved immensely, it is no longer something we do purely for viewing pleasures it has grown to become an independent, vibrant and commercially viable sector that contributes immensely to the economies of mature markets. However, emerging economies are still grappling to realize the untapped potential of this industry.
Intellectual property (IP) rights are legal rights that confer proprietary rights over intangible creations of the human intellect. IP rights relate to pieces of ‘information’ that can be incorporated in tangible objects. IP confers protection on ideas, technical solutions or other information that have been expressed in a legally admissible form and, in some cases, are subject to registration procedures. Creations of the mind that are protected by IP could be technological inventions, literary and artistic works, films, music, or designs.
IP rights are intended to be incentives for rewarding inventors and creators for their work, in order to enable them to recover the costs of their investment on their creations. It encourages allocation of more resources to such activities and in turn facilitates the creation of new jobs and industries, as well as the development of new products.
As highlighted before, it cannot be overemphasized that Sports has gone beyond the context of mere leisure and local entertainment to become a significant revenue generator and a major contributor to economies all over the world. Sports business is BIG BUSINESS hence the billion-dollar status the sports industry has become today. Sports men/women and Stakeholders all over the world have begun to generate enormous revenues from the exploitation of intellectual property rights vis-a-vis its predominance in the sports industry via merchandising and so on. However, in Nigeria the recognition of the potential of a vibrant sports industry has been non-existent or too little.
The importance of Intellectual Property Rights in the sports industry is undoubtedly paramount, if we consider that most commercial transactions in the area of sports are based on intellectual property rights e. g. Trademark, image rights, merchandising, etc. Therefore, it is important that we create an enabling environment for the successful partnership which is so advantageous for growth and development of the global economy.
WORLD INTELLECTUAL PROPERTY ORGANISATION
The World Intellectual Property Organization is a specialized agency of the United Nations saddled with the responsibility to encourage creativity and promote the protection of intellectual property rights throughout the world.
This year, the World Intellectual Property Organization Day campaign – Reach for Gold – takes a closer look inside the world of sports. It reminds us that Sports is a major revenue source for domestic economies, it also reminds us of the underlying IP rights embedded in different segments of Sports and how this commercial benefit can be transformed into wealth through innovation and creativity. The campaign also reiterates how IP rights encourage and protect innovators to continue to support the development of sport and its enjoyment (aesthetic and economical) around the world.
The universal values sports encompasses – (excellence, respect and fair play) – powers their global appeal. Today, thanks to advances in broadcasting and communications technologies, anyone, anywhere, can follow sporting actions around the clock, tracking the performances of their favorite athletes and teams at home, in the office and on the go.
Sports show intellectual property (IP) in action; Patents encourage technological advances that result in better sporting equipments. Trademarks, brands and designs contribute to the distinct identity of products, accessories, clothing, events, teams and their gear. Copyright-related rights generate the revenues needed for broadcasters to invest in the costly undertaking of broadcasting sports events to fans all over the world.
Sport science and innovations are helping athletes; professionals and amateurs – to optimize their physical output and achieve better performances. Indeed, in recent years there has been constant innovations and technological developments in this area, so as to make sports equipment more functional and safer, enabling sports lovers and athletes to optimize their performances in their relevant sports. Probably most people have never thought about it, but the sole of running shoes, Whistles, Balls, wearable computing devices for example, are creations and inventions which are all protected by patents.
What are Patents?
Patents are intellectual property rights that are used to protect inventions and inventive processes. A patent gives the owner the exclusive right to produce, commercially exploit and prevent others from doing so, in other words it bestows the owner with a monopoly. In sports, patents have been varyingly awarded ranging from sports shoes, apparels, (football boots, running converse, etc.) to a number of other inventions. For instance, American sportswear giants Nike in 2013 were granted 540 patents by the US Patent and Trademark Office. Also, in recent times there has also been the introduction of Virtual Assistant Referee (VAR) technology to assist officials (referees, umpires, etc.) in making crucial judgment calls; for example in the English Premier League hawk-eye goal-line technology was introduced to determine in certain circumstances if the entire circumference of a ball has crossed the goal line and thus can be awarded as a goal by the human referee. Also, inventions with respect to sporting moves, methods and techniques have recently received patent protection; for example, the method of placing a golf ball ,methods for fitness training, the method for training pitchers in baseball, and so on.
Intellectual Property Rights (IPRs) provides an incentive to innovate. However, they could only be effective in certain contexts. IPRs cannot boost innovation if the required pre- conditions, skills, information, capital, market prospects do not exist. Therefore, the strength of IP rules should be calibrated to the level of development required and in line with the economic and public policy needs.
SPORTS AND IP REGIME IN NIGERIA
As Nigeria becomes an increasingly important economic hub both in the West African sub-region and the African continent as a whole, protection of the rights subsisting in IPs created in the country is not only strategic to the nation’s current drive to develop its non-oil sector but also central to its overall economic growth and development goals
Notably, in countries where IPRs holders are not protected under a clearly defined and efficiently administered intellectual property legal and policy framework, the economy bears the brunt of such inadequacies in terms of undeveloped potentials, hindered capacity for job creation (direct and indirect) and low international competitiveness. This contributes towards stagnant growth of Nigeria’s industrial development in all sectors, particularly Sport
In Nigeria today, our technological brilliance is exerted into developing agricultural and financial solutions, and we have seen growth especially in the financial sector with companies like Paystack and Flutterwave blazing the trail. However, in the area of sports, advancements are slow and not yet palpable.
Consequently, it is safe to say that Patents is the most underutilized and untapped area of intellectual property rights in Nigeria. Although I remain optimistic this will change and my optimism is rooted in the throng of the tech savvy generation we see around us today. They have the ability to change the narrative when it comes to innovation in the sports industry. However, we cannot get to that Promised Land if we don’t create an environment that encourages and incentivizes creators to bring their imaginations to life.
The trail of patents in the sports industry in the world over has heralded technologies that help athletes jump higher, swim faster, cycle longer and hit a ball harder and farther, these pockets of innovations are all products of ideas conceived by forward thinking individuals coupled with the platform afforded them by an enabling environment with robust intellectual property protection systems.
Copyright is also another potent revenue generator for the sports economy, it maintains the vitality of sports by keeping fans interested and inspired. This arm of intellectual property rights protects the expression of an idea in a definite form and bestows on the creator or owner, the right to produce, reproduce, make replica copies, market, sell and adapt the work into several formats, to the exclusion of others except through assignment, testamentary disposition or the grant of a license. The areas of sports where copyright abounds are the literature contained in game-day programs sold to fans and supporters, the merchandise, the broadcasting and media rights, ticket sales, the software of computer and online games.
The infringement of copyright remains
unfortunately a difficult battle, with thousands of fake products flooding the
markets and digital piracy on the rise. It seems almost as if our system
indulges the copiers to the detriment of the creators and it has harmed the
society and dampened our creative capacity because many are discouraged to
flourish knowing that their creativity isn’t fully protected under the Nigerian
Intellectual Property regime.
The only way an economy can flourish and the public prospers is when governments recognize the value of putting a robust IP system at the core of their legislative, regulatory and judicial frameworks. Although, we have these laws, however we are lax in their enforcement.
We need to transcend from government dominated sports federations to a more commercialized sports industry because as long as the government continues to ‘spoon feed’ the federation, associations and professional clubs in Nigeria, it may be difficult to discover all the business potential of the industry and that would ultimately stifle the exploitation of copyright in the sports industry by stakeholders.
We also need to indulge in sports marketing by strategically promoting our domestic content through various media campaigns and ticketing models which would eventually translate to increased gate takings. Consistent fans patronage and support will definitely pull higher sponsorship bargains, TV rights, stadium signage advertisements, licensed merchandise deals and players endorsements.
Furthermore, trademark as an intellectual property right abound in all the sectors that make up the sports sector, namely teams & leagues, sporting goods, broadcasting and apparel & sportswear. It is in the unique brand identity that provides protections for marks, symbols, logos, slogans, names and so on, that distinguishes the products (goods/services) of one business to another.
Trademarks enable customers recognize the products of a particular business, and they’re an essential part of branding. It is no gainsaying that strong branding increases prices, customer loyalty, revenue, and growth. For example, Nike’s swoosh symbol or Adidas’s three stripes make merchandise like shoes, shirts, and jackets more valuable because they guarantee quality. There are a lot of uses for trademark protection in the world, chief of which are registering of nicknames by sports celebrities, catch-phrases, mascots and this goes to show that in Nigeria, we are merely scratching the surface. We need to build commercially potent domestic brands that would compete not just nationally but on a global platform.
In sports, the competition is so intense, that athletes and their coaches meticulously explore any competitive advantage they can achieve and that includes gathering proprietary information in the form of statistical analysis, scouting reports, dietary regimens, physiological metrics, and psychological assessment techniques. This is what is termed Trade Secret; it is the modus operandi of a business that gives it its competitive advantage. Companies invest heavily in elaborate focus groups to find the right mix of features and designs to make their products more attractive and marketable. Although trade secrets are not intellectual property rights in themselves, they involve practices through which a business seeks to gain an advantage over its competition.
The U.S Chamber International IP Index 2018, ranked Nigeria 42 out of 50 countries in the assessment of economies whose intellectual property systems provide reliable basis for investment in the innovation and creativity lifecycle. The report opined that the enforcement environment in Nigeria is highly challenging and that the rates of physical counterfeiting and online piracy remains high and public awareness of the value of IP remains low.
Although the Nigerian Copyright Commission (NCC) continues to be an active voice of the importance of protecting copyright and fighting piracy there is still a lot to be done to engrave the importance of intellectual property rights in the minds of the populace, starting from everyone seated here today. In 2017, the agency continued with its enforcement activities, including arrests, seizures, and antipiracy operations.
In a bid to adopt international best practices of Intellectual Property Rights Protection cum Enforcement, Nigeria ratified the WIPO Internet Treaties in 2017. Nigeria first signed these treaties in 1997. The ratification of the WIPO Internet Treaties shows Nigeria’s commitment to upholding the highest standards of protection and enforcement of copyright and related rights. Nigeria is also a signatory to and has ratified the Patent Law Treaty. Nigeria is not a contracting party to the Singapore Treaty on the Law of Trademarks and has not concluded a major FTA post-TRIPS membership that includes substantial provisions on IP rights.
Moreover, we need to invest in the youths by creating an environment where they can hone their skills and an enabling environment that will stimulate sport innovation thereby benefiting the innovators and the sports community at large.
- The need to recognize the Sports industry as one of the highest grossing industries in the World and the Protection and enforcement of Intellectual Property Rights in Sports in Nigeria will have to begin, essentially, with the development of an IP policy that recognizes the importance of a robust and an all- encompassing IPR legal framework to National developmental aspiration, particularly as regards science and technology and trade and industry.
- Secondly, innovation policy should give more emphasis to the building of technological capabilities, Research and Development (i.e. activities to increase the knowledge base and skills, such as education and training) alongside building upon the pre-existing knowledge base, given that building absorptive capacities depends largely on prior knowledge and accumulation of capabilities. Innovation that builds on the pre-existing knowledge base and geared towards meeting local needs and problems is more likely to be relevant to economic growth and socio-economic development at the regional and local level, as opposed to innovation that may create gains for few outward-looking firms with little trickle-down effect on the local economy.
- With the emergence of sports as a veritable economic sector and its commercial importance increasing rapidly both in terms of events on the field and off the field in terms of the business of the exploitation of various intellectual property rights that are associated with sports events. It becomes imperative that professional sports clubs and sports events organizers within Nigeria not only join this highly profitable global bandwagon but also take into consideration the various species of intellectual property rights that have a serious nexus with intellectual property within the context of sports like; trademark registration, copyright, patents, broadcast rights and so on. Commercial exploitation of these diverse species of intellectual property rights within the context of Nigeria would not only result in an upward drive of the economic progression of the various domestic sports associations/sports events organizers within Nigeria but would also increase the individual profit margins of individual sportsmen in the country while attracting international interest and foreign investment.
- Furthermore, as developing nations have focused on the dynamic functionality of national systems of innovations and technology and develop measurable, sustainable and beneficial Intellectual Property Protection. It is not far-fetched that a proper development of intellectual property law to any nation is a positive path to national development. Patent system has the fastest development indices in Intellectual Property Law, all over the world, especially in developed countries and Nigeria as a signatory to the TRIPs agreement need to have a responsive patent and design law and a clear vision as to how to manifest these laws into national development
- It is also imperative for the Nigerian sports industry to appreciate the fact that establishing proper protective legal framework for intellectual property rights would ensure the sustainability of foreign investments in the sector. In developed countries like China and India, sports professionals and sports associations and/or event organizers have had to rely on a patchwork of rights that exists within regular intellectual property Law. It is advised that Nigeria adopts a different approach to the question of intellectual property rights in sports. Nigeria would be better served by the introduction of a sui generis intellectual property law that would solely protect aspects of intellectual property in Nigerian sports. This Law would be in the shape of a unique sports proprietary right to protect innovation and creativity in Nigerian sports. This would ensure that Nigerian sports association/sports events organizers as well as sports professionals would have a one-stop-shop of sorts for the protection of their intellectual property rights and innovations rather than having to rely on piecemeal protection
- Automation of the systems in all IP registration offices and their harmonization with the platforms of all regulatory bodies for trade, business and investments in Nigeria; including but not limited to the CAC, Copyright Commission, Patents and Designs Registry, Trade Mark Registry, SON, NOTAP, CBN, NCS, FIRS, and NAFDAC. This will have the effect of creating a common database for these bodies. In like manner, it is also suggested that NOTAP and NITDA should be merged while the various laws constituting the IP framework should be revised to ensure that areas of overlap are addressed and that they complement one another rather than contradict or intrude into the purview of one another.
Overall, we have taken decisive steps but we need to commit to its implementation and enforcement because at a time such as now, when Oil, the nation’s principal source of foreign exchange earnings is facing a precarious future, the time to transform the nation from a traditional commodities-based and import-driven economy, to a knowledge- economy exporting expertise, talents, value-added products and tech-savvy inventions is ripe.
Written By: Beverly Amaka
Agbakoba-Onyejianya, Olaseni Aka-Bashorun and Olayinka Suara
 Reynolds v Herbert Smith&Co.Ltd (1913) 20 R.P.C.123 culled from African Sports Law Bulletin -Intellectual Property Rights in Sports:A trick or two Nigeria can learn from the Global game– Ugochukwu Johnson Amadi
 www.premierleague.co.uk-culled from African Sports Law Bulletin -Intellectual Property Rights in Sports:A trick or two Nigeria can learn from the Global game– Ugochukwu Johnson Amadi
 Leveraging Intellectual Property in the Global Sports Economy- Global Innovation Policy Center
 U.S Chamber International IP Index- Sixth Edition-February 2018- Global Innovation Policy Center
STRENGTHENING INTELLECTUAL PROPERTY RIGHTS AND PROTECTION IN NIGERIA- Paper presented by Banwo & Ighodalo on the Grey Matter Concept