Teaching Intellectual Property Law as a Pedagogical Imperative at the Faculty of Law of the University of Ibadan, Nigeria by John Onyido

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A  paper prepared and presented by John Onyido, Esq, Partner, Intellectual Property Law of SPA Ajibade & Co at Intellectual Property Law Symposium, 13 July, 2018 organised by the Intellectual Property and Technology Law Club of the University of Ibadan, Nigeria.

“The function of education is to teach one to think intensively and to think critically. Intelligence plus character – that is the goal of true education.”  – Martin Luther King Jr.

INTRODUCTION

IP SymposiumIn recognition of the fairly limited teaching of intellectual property law as a subject in the curricula of the faculties of law in Nigerian Universities, I recommended to the Nigerian Law School in Lagos in late 2014 to cultivate the habit of inviting practitioners like myself to deliver special lectures from time to time on the subject. I also recommended including the subject of IP as an important subset under Commercial/Corporate Law in the Law School’s teaching curriculum. In the early part of 2015, I was invited by the deputy Director of the Nigerian Law School in Lagos to deliver a special lecture to a full house of budding lawyers on intellectual property law. I believe, without sounding immodest, that the lecture was well received by the law school students, if for no other reason than the fact that it provided a much needed diversion from the tedium of their studies on a subject which was not only unique and non-mainstream, but on which they were not going to be tested during the bar exams! Since then, I am not aware to what end that opportunity has been utilized by the faculty at the Nigerian Law School in Lagos.

Perhaps, the apparent lack of enthusiasm from the faculty may have stalled my further desire to make similar recommendations to the other branches of the Nigerian Law School in Abuja, Enugu, Port-Harcourt, Kano etc. I therefore find it quite auspicious and I was very gratified to receive an invitation from the IP & Technology Law Club of the Law Student’s Society of the country’s premier University to speak on the subject of teaching IP at your law faculty. As you may have guessed, at the time I was still a law student at the faculty of law of the University of Benin in the mid- 1980s, IP as a subject was not available as a course in the faculty’s teaching curriculum.[1] My very first contact with the subject was at the Nigerian Law School in Lagos about 28 years ago, when Mr. Bankole Sodipo (now Prof. Sodipo of Babcock University) gave a special lecture on Copyright Law at the main auditorium where I delivered my own lecture some 25-years later.[2] Nowadays, IP as a subject is gradually gaining acceptance and slowly creeping into the curricula of various law faculties in Nigeria and for good reasons, I dare say.[3]

THE SCOPE AND STRICTURES OF IP AS A SUBJECT

Intellectual Property Law as a subject can fairly be described as almost indispensable as an area of specialization in the teaching and the practice of law globally. With significant developments in the field of the knowledge economy and the exponential growth in technological advancement, the vital importance of IP as a tool for protecting and enhancing human creativity and innovation cannot be understated.[4] From the miniaturization of various high technologies in telecommunications and digital data compression as well as radio frequency identification, to advancements in Artificial Intelligence (AI), the Internet of Things (IoT) and Blockchain technology, to the more traditional fields of literary, artistic and musical works; intellectual property law is what glues these various disciplines together by ensuring that individual creativity and innovation are recognized and encouraged and that the outcome of such innovations and creative output are beneficial to society as a collective.[5]

The major fields of IP are Patents and Designs,[6] Copyright and Allied Rights,[7] Trademarks and Trade Names,[8] while other important and non-traditional areas include Trade Secrets and other commercially sensitive information,[9] Entertainment and Media, Sports, Fashion and Art, Biotechnology, Traditional Knowledge and Biocultural rights.[10] Whilst these fields are clearly distinguishable from each other and are the subject of varying legal and conceptual analysis, they do not constitute watertight compartments but interleave at the peripheries of their scope.[11] Thus, a given subject matter like a computer program/software is susceptible to protection under patent law (if it is new, inventive and is capable of industrial application), copyright law (if it can be categorized as a literary work under the Act, because it’s an original work of authorship reduced to a tangible medium of expression), and trademark law (if it is sold or distributed under a protected brand name utilised as a trade insignia or as source identifier), as well as under the law of trade secrets (if it confers a competitive edge/commercial advantage and is the subject of reasonable efforts to maintain its secrecy). Other areas of protection may include database protection for the unique selection and arrangement and protection of the topographies of its integrated circuits.[12]

IP PRACTICE IN NIGERIA

My initial desire was to practice Petroleum and Energy Law or to go into foreign relations and the diplomatic corps upon graduation. However, when I returned to Lagos in 1992 after my NYSC, I gained admission into the University of Lagos almost immediately to undertake an LL.M., program in Corporate and Commercial law and also gained employment into a boutique IP firm called Allan & Ogunkeye about the same time. Needless to state here that I had a challenging time juggling my postgraduate studies with a full time employment at the law firm, if I planned to keep my job. Otherwise, how else was I to pay my school fees and take care of living expenses? As difficult as this period was, it was simply ‘water off a duck’s back’ (as they say) for a young man in his early 20s striving to make headway in the fast-paced, sometimes ‘ruthless jungle’ that is Lagos, and I quickly developed a strong interest and life-long passion for IP as a practice area.

At that time, there were very few traditional IP firms in the country in addition to general practitioners who would dabble into IP practice occasionally. Well known practitioners at that time included: Irving & Bonnar, Burke & Co., Bentley Edu & Co., David Garrick & Co., and Arthur Nylander’s Chambers. Legal Practitioners like Mr. Ogunkeye, Professor Sodipo, Mr. Kayode and Dr. Arthur Nylander were already quite established and seasoned practitioners and had taken over the batten from Mr. D. Garrick and Mr. G. Bentley who were among the foremost players in the field of IP from the 1950s to 1970s.[13] Academics and law school lecturers like Professor Folarin Shyllon and Professor Egerton Uvieghara provided the intellectual stimulation (locally and globally) for legal discourse on the subject by both practitioners and policy makers towards the proper development of IP practice in the country.

On the Bench were astute and adventurous judges who exhibited an affinity for intellectual property cases and claims before the Federal High Court in Lagos. Judges like Fred Anyaegbunam, Babatunde Belgore, T.A. Odunowo, G.A.A.T. Jinadu, Roseline Ukeje and E.O. Sanyaolu handed down very incisive and ground-breaking decisions on substantive and interlocutory IP claims that helped sustain IP as a solid practice area for the next generation of practitioners. There are now far more players engaged in IP practice in Nigeria and a vast number of them are neither trained IP lawyers in the traditional sense, nor have they undertaken any legitimate/recognized course of study on any of the fields of IP law listed above. A number of local IP practitioners are self-trained and as you know, the practice environment does not encourage specialization when general legal practice seems to be the norm. Likewise, the judges lack sufficient training and exposure to the oftentimes complex nuances of Intellectual Property law and practice.

The direct consequence of this is a warped development of this field which is oftentimes out of sync with international best practices, with globally accepted standards and the trajectory of global case law. In making this assertion, I am not unmindful of the need to ensure that we develop this field in a manner that supports our current level of development and our unique social and economic needs,[14] but this should be done within the framework of established IP principles and case law as far as practicable. We now live in a globalized interconnected world, and the lure of isolationism holds very little attraction or worthwhile benefit to any country aspiring for sustained growth and economic advancement. One effective way to address this problem is to start training our lawyers as IP practitioners right from the law faculties by providing them with the fundamental building blocks and a good foundational understanding of intellectual property law which they can build upon following graduation.[15]

CURRENT PROBLEMS AND CHALLENGES

As IP practitioners, we continue to grapple with a number of challenges based on a combination of factors mostly connected to the problem which I have already identified above, i.e., the lack (until fairly recently) of proper training and the absence of IP as a subject taught in a majority of our law faculties. The other factors that have conspired to make life difficult for IP practitioners in the country are the largely archaic laws still existing in our statute books,[16] the absence of regulating statutes[17] or poorly drafted laws in some instances,[18] the largely unfortunate decisions delivered by our judges and the level of expertise of IP practitioners engaged in this field of practice. As you may already be aware, even the suitability and qualification of a vast majority of those who are currently teaching the subject of IP in our schools is in doubt. But these are all interrelated problems. To bring some of the problems and challenges encountered in IP law and practice into sharper focus, I propose to give only 3 examples from our case law as illustration.

The first case which I will address is the case of Patkun Inds. v. Niger Shoes Ltd.,[19] where the issue of jurisdiction to entertain trademark infringement and Passing Off actions was reviewed by the Supreme Court. Under the applicable laws then in force, the Federal High Courts could only assume jurisdiction over infringement actions and/or passing off claims annexed thereto. If a trademark action was for a straight passing off claim, the proper court seised of jurisdiction would be the state high courts under its general (unlimited) jurisdiction, since such an action would not properly be described as one arising under a federal statute. The effect of the Supreme Court’s decision in the Patkun case was to force litigants to file multiple lawsuits (one at the Federal High Court and the other before the State High Courts) where for instance, a trademark has not yet become a registered trademark and a trademark certificate has not been issued by the Trade Marks Registry. Part of the problem was the manner in which the applicable statutes were drafted. Although it was apparent to most IP practitioners that the intention of the legislature was to confer exclusive jurisdiction over Intellectual Property matters on the Federal High Courts, that intention was not evident in the statutes as enacted.

Section 7(1)(C)(ii) of the then Federal Revenue Court Act, No. 13 of 1973 provided that: “The Federal Revenue Court shall have and exercise jurisdiction in civil causes and matters …arising from …any enactment relating to copyright, patents, designs, trade marks and merchandise marks”

Section 230(1) of the 1979 Constitution then applicable to the facts of the case stipulated thus: “… subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction –

(a) In such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) In such other matters as may be prescribed as respects which the National Assembly has power to make laws …”

On the other hand Section 3 of the Trade Marks Act stipulates as follows: “No person shall be entitled to institute any proceedings to prevent, or to recover damages for, infringement of an unregistered trade mark; but nothing in this Act shall be taken to affect the right of action against any person for passing off goods of another or remedies in respect thereof.”

As you can see from the sections quoted above, a passing off claim simpliciter being a common law claim could not be filed at the Federal High, but would have to be instituted before the state High Courts under that court’s general jurisdiction. In order to cure the defect in the applicable laws and ostensibly align them with the Supreme Court’s decision in the Patkun case,[20] the 1999 Constitution introduced an amendment via section 251(1)(f) to reflect that the Federal High Court shall exercise exclusive jurisdiction in respect of: “…any Federal enactment relating to copyright, patent, designs, trade marks and passing off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards.” Also section 7 of the Federal High Court Act was amended by Decree No. 60 of 1991, expanding the powers of that court regarding passing off claims.[21]

This same jurisdictional question came up for determination in the case of Ayman Enterprises Ltd. v. Akuma Inds. Ltd.,[22] a 2003 decision where the Supreme Court ruled, in consonance with prior decisions, that the Federal High Court lacked the jurisdiction to review passing off actions without an appendant claim for trademark infringement. In handing down this binding decision, the Court of Appeal, the Supreme Court and counsel representing both parties made no reference to the amendment introduced by Decree 60 of 1991 expanding the powers of the Federal High Court regarding trademark actions. It took a subsequent appeal involving Omnia Nig. Ltd. v. Dyktrade Limited,[23] decided by the Supreme Court in 2007, to put matters right.

Although the Supreme Court has largely resolved the jurisdictional question in trade mark actions to a large degree, the problems highlighted above on the narrow and sloppy drafting of the relevant section of the 1999 Constitution and the Federal High Court Act remain in place. Merely inserting the term “passing off” is clearly inadequate as it gives the impression that a statutory right of passing off has been created by virtue thereof, when nothing could be further from the truth.[24] Furthermore, by listing specific types of IP rights, the lawmakers have given the erroneous and unhelpful impression that only the listed items can be adjudicated before the Federal High Courts. Consequently, and as an example, a claim for trade secrets misappropriation unless it is joined to a specifically identifiable cause of action stipulated in the Constitution may not lie before that court following this logic.[25]

The second case I will examine is the curious case involving Microsoft Corporation v. Franike Associates Ltd.,[26] where the plaintiff had instituted an action for copyright infringement against the defendant before the Federal High Court in Lagos. This case involved the sale of pirated copies of the Microsoft Windows OS, necessitating the issuance of ex-parte interim restraining orders against the defendants. The defendants responded with a preliminary objection challenging the jurisdiction of the trial court to entertain the lawsuit in the absence of a Ministerial Directive pursuant to section 41 of the Copyright Act. That section provides in sum that whenever a country is alleged to be a signatory to an international treaty to which Nigeria is a party and the Minister is satisfied that said country extends copyright protection to works of Nigerian authors, then the Minister may extend equivalent protection to the citizens of that country by means of an official gazette.  The failure of the plaintiff to produce such a gazette resulted in a dismissal of the lawsuit by the trial court for want of jurisdiction, an erroneous decision that was subsequently affirmed by the Court of Appeal.

Unbeknownst to the parties, their counsel, the trial and appellate courts, the first and only gazette issued under the hand of the Minister i.e., the Copyright (Reciprocal Extension) Order 1972 actually lists the plaintiff’s country of domicile, the United States, as eligible for reciprocal treatment under the Universal Copyright Convention. With the failure of Microsoft to appeal this decision to the Supreme Court, the Court of Appeal decision remains binding until set aside or distinguished against the facts of subsequent cases, even though that decision was issued per incuriam.[27] I have argued elsewhere that the challenges occasioned by a need to comply with section 41were largely resolved by virtue of a 1999 amendment to section 5 of the Copyright Act, allowing the NCC to resolve any disputes on the question of whether the country of domicile of a foreign author is a member of an international treaty/convention to which Nigeria is also signatory. A decision on such issue by the NCC shall be final and non-appealable.[28] The intended objective of this amendment was to more clearly distinguish between the claim for copyright protection based on membership of an international treaty under section 5 and a claim to protection based on reciprocity under section 41. When viewed this way, the seemingly intractable problems created by the Microsoft decision can be side-stepped.

The third and final case is a recent one involving COSON Lte/Gte v. MTNN Limited,[29] on the rights of collecting societies to sue for copyright infringement on behalf of its members. In response to COSONs claims, the defendant brought a preliminary objection under Order 16 of the FHC Civil Procedure Rules challenging the propriety of the action because the alleged transfer of rights to COSON although described as deeds of assignment were indeed non-exclusive in nature. Consequently, defense counsel argued that COSON could not sustain the action without joining the members or obtaining the leave of the court to sue on its own.[30] MTNN also contended that COSON could not claim to collect royalties on behalf of non-members, and that the copyright owners still retained the right to transfer user rights as they deemed appropriate, notwithstanding the transfer of rights to COSON for collective administration. MTNN had secured user rights from the copyright owners directly and paid for such use. Consequently, COSONs grouse was in essence that payment should have been made to it and not to the creators and that in any event, that the alleged payments were inadequate and did not cover all affected rights. After adjourning the matter on more than four occasions following submissions of counsel, the learned trial judge finally rendered a decision avoiding all these fundamental questions and instead accused MTNN of attempting to reverse the role of plaintiff and defendant in the action, failing to raise these objections in the statement of defence (which was clearly in error), failing to file a counter claim among other very strange grounds. The parties ended up settling the action out of court rather than proceeding to trial.[31]

The moral of reviewing these few authorities is to reveal the far reaching consequences of a failure to provide foundational IP training to budding lawyers at least at the tertiary/university level. Since the legal practitioners, judges, and law makers emanate from the same stream of graduates, we can see the direct impact on society in terms of the quality of legal advice provided to clients, the sagacity of judicial decisions handed down and the quality of laws promulgated by the legislature. We discourage investors who would ordinarily seek to invest in our economy when we fail to ensure that their IP rights would receive equivalent safeguards under their own laws or the very basic protections guaranteed under international law.[32] We really do need to take this very seriously if we are to institute an enabling environment for our creators and innovators to continue to push the boundaries in the various sectors of our economy and if we are to achieve our developmental and economic objectives.

SOME PEDAGOGICAL MATTERS

The landscape of intellectual property law is a very complex and dynamic terrain requiring frequent research and constant learning and because it deals with a vast subject area and directly impacts on socio-economic and technological development, deliberate and painstaking efforts are necessary to institute the requisite foundations for growth and institutional advancement. We live in a world in which the participating countries occupy varied economic status and political power. One could arguably state without equivocation that the platform for international economic relations between the various countries is lopsided with the developing countries receiving the short end of the stick. There are numerous factors responsible for this state of affairs, (whether self-inflicted or externally imposed) some of which I have discussed elsewhere.[33] Suffice it to state here that one of the ways in which we can extricate ourselves from the throes of poverty and economic dependence, is to develop a policy framework for our development at the core of which is the teaching and appreciation of IPRs. Elsewhere, similar efforts have been instituted by our competitors to ensure they continue to retain that economic edge which they have enjoyed and for as long as they can manage it. It is vital therefore to get to grips with the global intellectual property regime as introduced by the WTO-TRIPS Agreement 1994 among other international IP regimes.[34]

We have several laws and regulations designed to trigger economic growth and technological advancement in several sectors of our economy and through the activities of government agencies like NAFDAC, NOTAP, SON and so on, which are charged with the responsibility of implementing these laws and regulations. We have not experienced any remarkable traction in our national goals over the past several years even with these laudable efforts, primarily because of a lack of collective awareness of what we are striving to accomplish, absence of clear, firm and effective implementation modalities as intended and in line with our national science, technology and innovation policies, with little if any cohesiveness and consistency in these national policies. Furthermore, we have individuals lacking the right knowledge and training to fill crucial positions in ministries and government agencies. We have to address technological innovation in a pragmatic and effective manner with clearly measurable and quantifiable outcomes.[35]

As a developing nation, we need to come to grips with the core IP courses and understand how these can be applied in practical terms for the society’s benefit. These core courses can be taught in either 3rd and/or 4th year with the 5th or final year reserved for more advanced topics.[36] I would also recommend a special LL.M., program for intellectual property law for law faculties that can accommodate this, which would provide an opportunity to interested students for specialization. Currently, a number of our lawyers seek admission into foreign institutions of higher learning in order to obtain this level of training at great financial cost and still very few others enroll in a doctoral program in IP law outside our shores. From my experience, it is very helpful to retain the support and assistance of practitioners as an Adjunct faculty in the training of budding IP lawyers to provide the students with a hands-on and practical appreciation of the subject. Some of the practical training envisaged should include attendance in court for hearings on IP related cases, trips to regulatory agencies and the offices of select IP rights holders in the various sectors of the economy.[37]

The general pedagogical methods of instruction include: the case method, the problem solving method, the simulation model, the clinical method and the doctrinal method.[38] Out of these teaching styles, the case law and the problem solving methods are the most widely utilized in law schools. Whilst the former entails a teaching method that conveys information through a review of relevant cases in which important legal principles have been applied, the latter provides an opportunity for students to apply their analytical reasoning to a set of facts raising legal questions. Students are then required to analyze the facts and apply the appropriate legal principles. A combination of these two methods would probably yield the most desirable outcome, in addition to organizing seminars and workshops for some key topics. Furthermore, some have recommended the e-learning or distance learning option for the preliminary/basic aspects of IP law before delving into the detailed teaching of the course.[39] I would recommend having different lecturers teaching the various subject areas who can then be rotated the following year rather than assigning a single professor to teach all the aspects of IP law. This provides the lecturers the opportunity and time to prepare adequately for these classes and to be creative and innovative in their teaching methods.

 

CONCLUSION

I have attempted to keep this paper as brief as practically possible so as not to bore the audience but hopefully without sacrificing the essential elements of the subject discussed. Teaching IP law in the Universities and the law schools equip our students with the tools needed for providing sound legal advisory to clients, creators and innovators in our society. This translates into several benefits for the country. It enables the creators and innovators or IPR holders to think more critically about their works and innovations before bringing them to the market, how these can be more beneficial to society and how IP rights so acquired can be monetized for commercial gain and economic returns on investments. It positions the lawyers to be more competitive on the job market and in their interactions with foreign attorneys and institutions. It provides the budding lawyer with a multidisciplinary perspective on world affairs, on the interconnectedness between IPRs and other complementary disciplines, between law and technology and the relationship between law, trade and commerce and international relations.[40] Teaching IP law slowly diffuses into the policy making apparatus resulting in better drafted laws, better trained judges and IP practitioners and ultimately supports the efforts towards our economic emancipation and Nigeria’s social and economic development in all its facets.

…it is most effective to discuss IP teaching in the context of the global strategy which the international IP community has adopted. WIPO has set its strategic goals for the next six years. Enhancement of the programs to nurture IP culture is one of those goals. The concept of “IP culture” can be briefly described as the environment and mindset of people which enable all stakeholders of IP to play their respective roles in realizing the potential benefits of IP as an effective tool for economic, social and cultural development. This dynamic IP culture should be founded not only on a solid, effective and balanced legal system of IP but also on the active, well-informed users of the IP system, augmented by government policies and strong support from all other stakeholders. Consequently, the development of human resources is a basic premise to the creation of the IP culture.[41]

SOME USEFUL RESOURCES

Textbooks:

  1. O. Babafemi, Intellectual Property: The Law and Practice of Copyright, Trade Marks, Patents & Industrial Designs in Nigeria, Justinian Books Ltd., 2007.
  2. O. Oyewunmi, Nigerian Law of Intellectual Property, University of Lagos Press 2015.
  3. Cornish and D. Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights, 6th ed. Thomson (Sweet & Maxwell) 2007.
  4. Copinger and Skone James on Copyright, 16th Sweet & Maxwell (Thomson Reuters) 2011.
  5. Robert Merges and John Duffy, Patent Law and Policy: Cases and Materials, 4th LexisNexis 2007.
  6. Graeme Dinwoodie and Mark Janis, Trademarks and Unfair Competition: Law and Policy, 2nd Wolters Kluwer.
  7. Robert Gorman and Jane Ginsburg, Copyright: Cases and Materials, 7th Foundation Press (Thomson West) 2006.
  8. Kerly’s Law of Trade Marks and Trade Names, 16th Sweet & Maxwell 2017.

Law Reports:

  1. Bamidele Adeleye, (ed.) Intellectual Property Law Reports 1-5, Alexander Payne & Co., Publishers 2008.
  2. Federal High Court of Nigeria Law Reports, University of Lagos Library.
  3. Jide Olakanmi (ed.) Intellectual Property: Cases & Materials, LawLords Publications, 2009.
  4. Report of Patent Cases (RPC).
  5. Fleet Street Reports (FSR), Sweet & Maxwell (Thomson Reuters).

Journals:

  1. NIALS Journal of Intellectual Property 1 and 2, Nigerian Institute of Advanced Legal Studies (2011-2012).
  2. The Gravitas Review of Business and Property Law, Gravitas LBR Limited.
  3. The Appellate Review, The Elias Center.

Online Resources:

  1. tacora.com.ng
  2. darts-ip.com
  3. patent.gov.uk
  4. uspto.gov
  5. https://copyright.gov
  6. http://www.iponigeria.com/#/
  7. https://nlipw.com/database-trademarks-in-nigeria/
  8. wipo.org

[1]       Apparently, teaching intellectual property law as a course in law faculties has been a recent but gradual process. See Peter K. Yu, Teaching International Intellectual Property Law, SAINT LOUIS UNIVERSITY LAW JOURNAL Vol. 52:923 pp. 924-25, available at: http://ssrn.com/abstract=1000783, accessed 5th June 2018.

[2]       See Bankole Sodipo, The Oracle, Intellectual Property & Allied Rights, The Knowledge Economy and the Development Agenda, 7th Inaugural Lecture Babcock University 2015, pp. 46-47.

[3]       I understand that Intellectual Property Law is now being taught as a subject at the university of Lagos, Babcock University, Lagos State University, Obafemi Awolowo University,       Afe Babalola University, University of Benin, University of Abuja, Olabisi Onabanjo University, University of Ilorin, Delta State University, Ekiti State University, Adekunle Ajasin University, Ahmadu Bello University, University of Maiduguri, Kogi State University, University of Nigeria (UNN), Nnamdi Azikwe University, and Madonna University.

[4]       See Christopher Kanlanje, Role of Intellectual Property in Innovation and New Product Development, available at: http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_innovation_development.pdf, accessed July 10th 2018. See also, Mohamed Abdel-Aleem  Elleithy, Towards Policy & Strategy of IP and Innovation in Universities & Public Research & Development for Technology Transfer to Industrial Sectors available at:

http://www.wipo.int/edocs/mdocs/africa/en/ompi_inn_cas_16/ompi_inn_cas_16_t_6_g.pdf, accessed on July 9th 2018.

[5]       John Onyido et al, Who is a Proper Plaintiff in an Action for the Enforcement of Copyrights in Nigeria, available at, http://www.spaajibade.com/resources/wp-content/uploads/2017/01/Proper-Plaintiff-in-an-Action-for-the-Enforcement-of-Copyrights-in-Nigeria-Review-of-the-decision-in-Musical-Copyright-Society-of-Nigeria-Ltd-v.-Nigeria-Copyright-Commission.pdf. See Musical Copyright Society of Nigeria Ltd v. Nigeria Copyright Commission CA/L/575/2009 (Unreported) judgment delivered on 21st October 2016.

One of the ways the rights holders and the society benefit from these innovations and creative output is through the monetization of these rights via licensing and other forms of IP transfers. See John Onyido, Legal Trends in Intellectual Property Licensing, The Gravitas Review March 2018 Vol. 9 No. 1 pp. 72- 95.

[6]       See Patents & Designs Act Cap. P2. LFN 2004.

[7]       See Copyright Act, Cap. C28 LFN 2004.

[8]       See Trade Marks Act Cap. T13 LFN 2004.

[9]       See John Onyido, The Role of Trade Secrets in the Protection of Intellectual Property Rights, The Gravitas Review Vol. 6 No. 3, September 2015 pp. 51-66.

[10]     Ikechi Mgbeoji, Bio-Cultural Knowledge and the Challenges of Intellectual Property Rights Regimes for African Development, NIALS Journal of Intellectual Property, Vol. 1 No. 2 2012 at pp. 1-43.

[11]     See generally John Onyido and Yetunde Okojie, Intellectual Property Law and Litigation in Nigerian Courts: Current Statutory and Judicial Posture, in A Review of Contemporary Legal Trends in Nigerian Law, LexisNexis 2017 pp. 73-101. See also our recently designed online course: ‘Introduction to Intellectual Property Law’, available at www.tacora.com.ng.

[12]     TRIPS Agreement Articles 35-38.

[13]     Other non-frequent practitioners featured a couple of notable legal titans like Chief FRA Williams, ROA Akinjide, Bola Ige, Chief Awolowo, LV Davies, Mr. Esangbedo, Mr. Ubezuonu, Chike Ofodile, Mrs. Adegbite, J.A. Cole, BO Benson etc.

[14]     Report of the Commission on Intellectual Property Rights (Sept. 2002) Integrating Intellectual Property Rights and Development Policy, available at: http://www.iprcommission.org/graphic/documents/final_report.htm., accessed 4th July 2018.

[15]     While some have maintained this focused position, https://ipmall.law.unh.edu/sites/default/files/hosted_resources/Teaching_IP/Teaching_IP.pdf, others have argued for an interdisciplinary approach and emphasized the importance of teaching IP to non-lawyers, see Ruth Soetendorp, Intellectual Property Education: In the Law School and Beyond, available at https://www.researchgate.net/publication/267224642, accessed July 10th 2018.

[16]     See for instance the Merchandise Marks Act 1916 [23 of 1915; 15 of 1956; L.N. 47 of 1955] reproduced in the 2004 Laws of the Federation 2004 as Cap. M10. Others are the Trade Marks Act 1965, the Regulations of 1967, the Patent and Designs Act 1970. A proposed IP Bill and a draft Copyright Law are still awaiting legislative review and presidential assent.

[17]     There’s currently no statutory regulation for trade secrets protection in Nigeria. See John Onyido, The Role of Trade Secrets in the Protection of Intellectual Property Rights, op cit., pp. 51 and 66.

[18]     Some of these I have attempted to highlight in this paper.

[19]     [1988] 5 NWLR (Pt. 93) 138 S.C.

[20]     I have contested the legitimacy and rationale for the Supreme Court’s Patkun decision in a 2012 article regarding the justification for joining infringement and passing off claims in one lawsuit based on an alleged statutory right of passing off arising from section 3 of the Trade Marks Act. See John Onyido, The Jurisdiction of the Federal High Court to Entertain Trade Mark Actions: A Review of the Supreme Court’s Decision in Patkun Inds. Ltd. v. Niger Shoes Ltd., The Appellate Review, Vol. 2 No. 2, 2012 pp. 17-33.

[21]     Id. pp. 22-33

[22]     [2003] 13 NWLR (Pt. 836) 22 S.C.

[23]     [2007] 15 NWLR (Pt. 1058) 576 S.C.

[24]     Compare this amendment to the provisions of the US Lanham Act on Unfair Competition, i.e., section 43 which deals with false designations of origin and false descriptions (common law trademark infringement). But see J. MacCarthy, Trademarks and Unfair Competition 4th ed. 2002 para. 27-14, arguing that section 43(a) of the US Lanham Act cannot serve as a complete codification of the entire law of unfair competition.

[25]     We are currently facing an objection on this basis, inter alia, in respect of a recent lawsuit filed before the Federal High Court in Lagos for Copyright Infringement and the misappropriation of certain alleged trade secrets. See Voiceweb Ltd. v. Etisalat & 3 Ors. Suit No. FHC/L/CS/576/17.

[26]     [2012] 3 NWLR 301; (2012) CLRN 145.

[27]     See John Onyido, International Copyright Treaties and Enforcement Challenges under Nigerian Law, The Copyright Lawyer, February 2018 pp. 19-21.

[28]     Id at p. 20. See Cynthia O. Igodo, Enforceability of Foreign Copyright in Nigeria: A Review of the Court of Appeal’s Decision in Microsoft v. Franike, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3180035, accessed July 9th 2018. See also Adebambo Adewopo, Role of the Court in the Interpretation and Development of Intellectual Property Law: The Nigerian Experience, The Gravitas Review of Business & Property Law, Vol. 6 No. 1, 2015 pp. 11-12 and Adejoke Oyewunmi, Nigerian Law of Intellectual Property, University of Lagos Press 2015, pp. 46-49.

[29]     FHC/L/CS/619/2016.

[30]     Section 16(2) Copyright Act.

[31]     John Onyido, Copyright Collective Rights Management in Nigeria, The Copyright Lawyer May 2017 pp. 38-40. See also John Onyido, Issues and Perspectives on Collecting Societies and the Management of Musical Works and Sound Recordings in Nigeria, forthcoming in The Gravitas Review of Business & Property Law 3rd Quarter 2018.

[32]     See the TRIPS Agreement, the Berne Convention, the PCT, the Rome Convention, the UCC, the WIPO Copyright Treaty, the Madrid Agreement, the Lisbon Agreement, the European Patent Convention etc.

[33]     See generally John Onyido and Bolaji Gabari, International Trade under the GATT/WTO Multilateral Regime vis-à-vis Developing and Least-Developed Economies: Spotlight on Nigeria, in A Review of Contemporary Legal Trends in Nigeria LexisNexis 2017 pp. 139-169.

[34]     See Peter K. Yu, Teaching International Intellectual Property, Saint Louis University Law Journal Vol. 52:923 available at: http://ssrn.com/abstract=1000783, accessed July 6th 2018, arguing that the TRIPS Agreement instituted four important changes, by a) correlating intellectual property and international trade whilst establishing a compulsory dispute settlement mechanism, b) including other non-traditional IP topics like industrial designs, plant varieties, geographical indications, undisclosed information and the layout designs of integrated circuits, c) introduction of certain minimum protection standards and d) creating a supranational code imposed on all WTO members with little or no distinction.

[35]     See generally, James Otieno-Odek, Intellectual Property in the Context of Developing Countries: Quest for National Innovation System, NIALS Founders Day Lecture Series, 2017. Nigeria is currently ranked at number 118 on the Global Innovation Index GII for 2018 with the top sub-Saharan Africa countries listed as South Africa (58), Mauritius (75) and Kenya (78), respectively. http://www.wipo.int/edocs/pubdocs/en/wipo_pub_gii_2018-intro5.pdf.

[36]     Dealing with International IP Law, WTO and the TRIPS Agreement, International Trademark Law, International Copyright Law, Technology Licensing, Biotechnology and the Law, Art & Fashion Law, IP and Economic Development, Traditional Knowledge & Biocultural Rights etc.

[37]     Some of these would include the Patents, Designs and Trade Marks Registry, The Nigerian Copyright Commission, the National Office for Technology Promotion and Acquisition and Promotion, the National Agency for Food, Drugs Administration and Control, etc.

[38]     W. Hennessey, The Place of Intellectual Property Teaching in the Curricula of Universities and Technical Institutes, Franklin Pierce Law Center, http://www.ipmall.info/hosted_resources/Teaching_IP_Hennessey_99.htm

[39]    See our newly minted online IP Course available at: www.tacora.com.ng.

[40]     The Importance for Oman of Teaching IP Law, WIPO National Seminar on Intellectual Property Rights 2005, https://ipmall.law.unh.edu/sites/default/files/hosted_resources/Teaching_IP/WIPO_Oman_2005.pdf [IP is inherently multifaceted, multidisciplinary and multinational]. Some have recommended IP as a compulsory undergraduate course. See Jadranka Dabovic-Anastasovska, Teaching Intellectual Property at Law Schools in the Republic of Macedonia, accessible at: https://ipmall.law.unh.edu/sites/default/files/hosted_resources/Teaching_IP/Jadranka_Dabovic_2010.pdf

[41]     https://ipmall.law.unh.edu/sites/default/files/hosted_resources/Teaching_IP/Teaching_IP.pdf.

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