Nigeria Intellectual Property System: Finding a Common Ground for the Protection of Traditional Knowledge and Traditional Cultural Expressions

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According to the World Intellectual Property Organisation (WIPO) traditional cultures embody exquisite and distinctive creativity and are of immense cultural, historical, spiritual and economic value to indigenous peoples and traditional communities the world over[1]. The domain of Intellectual property law in Nigeria and indeed the world over primarily protects original and often fixed works by known individuals, and for a limited time; the implication of which excludes traditional cultural expressions (TCE) and Traditional knowledge (TK) which are mostly communal, have old roots, are oral and passed down from generation to generation from protection under IP law and indeed any law in force in Nigeria. In recent times however, there has been numerous evidence of increased commercial use of TK and TCE to the detriment of the people from whom the knowledge originates and these have propelled debates on the need to protect TK and TCE nationally and internationally.

Odebunmi’s work on the Igbo bitter-cola, (Akuilu in Igbo; Orogbo in Yoruba and Namijin-goro in Hausa) shows that it is now used to produce some anti-cancer and HIV-retroviral drugs without credit to the indigenes from whom this knowledge originated[2]. There is data also to the effect that local farmers in Ibadan, Nigeria had developed an insect-resistant cowpea which they could not publish in reputable journals as a result of being unlearned; one Angharad Gatehouse applied for and was granted a USA patent on this invention without the least credit to these local farmers[3]. Nigeria stands to benefit greatly from the protection of TK and TCE: it promises to contribute to the economy of the country, as evident with the case of India and other countries that have taken giant strides in this regard.

A Feasible Framework for the Protection of TK and TCE In Nigeria

A national framework for the protection of TKs and TCEs in Nigeria should be sui generis under Nigeria’s intellectual property regime. A sui generis system is most preferable because fixing a system for the protection of TK and TCE under the intellectual property system is a complex one. Notably, when community members innovate within a TK framework, they can use the patent system to protect their innovations, however those transmitted orally cannot be protected using conventional IP systems. For example, a TK (such as the use of Akuilu in a place called Akuilu in Nigeria to prepare cancer-preventive drugs) may be protected under geographical indication and patents while another TK (such as the knowledge of how Ancestral spirits are artistically drawn amongst a particular culture) may not qualify to be protected under Patents or any other branch of IP, but can be protected under copyrights being the domain of literary and artistic works. The diversity in people’s TCE and TK must therefore be taken into consideration in this regard.

An agency should be established under this national law to facilitate the documentation of all TKs and TCEs in Nigeria. It should also be charged with the responsibilities of registration, collation, preservation and research on TCEs and TKs as well as taking charge of the procedure for enforcement of the national law and even international protection of TK.

It is important that customary law is made the bedrock of this national law; the law should make use of existing customary authorities and structures in the process of documentation, and administration. This is important principally because TCE and TK are founded on custom and customary laws are never universal.

Traditional Knowledge and TCEs should be protected for as long as the knowledge and expression fulfils the protection criteria, except that where TK belongs exclusively to an individual, the protection should last for 25 years following the exploitation of knowledge beyond its traditional context by the individual as is contained in the Swakopmund Protocol. Also, this national law should provide for both a defensive and positive protection, however exceptions should be made for museums and libraries.

Conclusively, the protection of TKs and TCEs in Nigeria is long due and will be actualized with the appreciation of the commercial gain and tradition preservation that could be derived from it. Alternatively, a single comprehensive law uniting all areas of IP in Nigeria (The Industrial Commission Bill) should be passed with provisions on the protection of TKs and TCEs.

[1] Molly Torsen and Jane Aderson, “Intellectual Property and the Safeguarding of Traditional Cultures”, (WIPO, December 2010) <https://www.google.com/url?sa=t&source=web&rct=j&url=http://www.wipo.int/edocs/pubdocs/en/tk/1023/wipo_pub_1023.pdf&ved=2ahUKEwi8nJLQoeHsAhVholwKHdBxAnwQFjAAegQIAxAB&usg=AOvVaw3OMMgm-f4EMri-KfQtdLDh> Accessed October 2020

[2] Odebunmi, E.O et al, “Proximate and Nutritional Composition of Kola Nut, Bitter Kola and Alligator Pepper” (2009) African Journal of Biotechnology 8:2 pg 308-310

[3] Buchanan, J. “Between Advocacy and Responsibility: The Challenge of Biotechnology for International Law” (1994) Buffalo Journal of International Law 1:22 pg. 36

 

ABOUT THE AUTHOR

Susan Chioma OmehSusan Chioma Omeh is presently a final year law student of the University of Nigeria.

Her interests in law cut across Intellectual Property Law; Data Protection; Energy Law; and Corporate Investments and Management. She enjoys researching and writing: she is the winner of the 2020 WIPO National Intellectual Property Essay Competition. When she is not doing law, she is knee-deep in volunteering to educate indigent children and address gender-based discrimination.

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