In their award-winning book, ‘Why Nations Fail’, Daron Acemoglu and Francis A. Robinson marshaled the argument that for a nation to develop, among other things, law and order must prevail, and there must be adequate protection of intellectual property. Those conditions precede creative destruction.
Creative destruction is when agents of the economy innovate or invent new efficient technologies to improve the ways goods and services are produced, thus jettisoning old ones.
Over the decades, slack and outdated legislations, coupled with poor implementation of laws governing the protection of intellectual property may have been the impediment of creative destruction in Nigeria, which may have hampered economic growth and development.
Intellectual property laws protect the interests of creators by giving them proprietary rights (Intellectual Property Rights) over their creations. Infringement of IPRs undermines genuine investment in creativity, innovation, and knowledge. Invariably, the granting of exclusive proprietary rights (usually in consideration of the disclosure of the creation), creates an incentive for creators to develop, produce, and distribute new and genuine goods and services for commercial purposes.
Notably, in countries where IPR 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, together with a poor education system, comatose power system, and unfavorable fiscal system accounts for the stagnant growth of Nigeria’s industrial development.
As Nigeria is becoming increasingly exposed to the rest of the continent with respect to the African Continental Free Trade Agreement (AfCFTA), protection of 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. Accordingly, there must be the initiation of purposeful collaborations, going forward, between the government and the private sector organizations to identify, dialogue, and develop viable solution-frameworks to the problems of IPR infringements in Nigeria.
In Nigeria, a number of laws have a bearing on the protection and administration of the different rights that make up intellectual property. However, the three main statutes governing the intellectual property Law in Nigeria are the Copyright Act, the Patents and Designs Act, and the Trademarks Act.
Copyright violation is one of the major challenges to IP rights and development in Nigeria. This cankerworm manifests more virulently in the following industries: book publishing (book piracy), information and communications technology – ICT – (internet & software piracy), and in film and entertainment (musical & cinematography disc piracy).
A 2012 study undertaken by some industry analysts revealed that “Nigeria is ranked among countries where piracy is most prevalent with rates as high as 82%, 83%, 83%, 82%, and 83% respectively in the years 2007, 2008, 2009, 2011 and 2012.
Recent data from the NCC shows that the situation hasn’t improved and is causing severe economic hemorrhage. The NCC has further stated that not only is piracy threatening the survival of the local industries, which are discouraged from making the needed investments in the economy but also a disincentive to foreign direct investment (FDI) and its associated technical know-how and technology transfer.
The effect of piracy on the entertainment industry in Nigeria further highlights the terrible cost Nigeria has had to pay for its weak IPR protection and enforcement framework. According to the National Bureau of Statistics (NBS), Nollywood – Nigeria’s film industry – currently accounts for 1.42% of Nigeria’s GDP (N853.9 billion or $7.2 billion); up from 1.4% as of 2014 when the country last rebased its GDP figures. Nollywood is said to be the country’s second-largest job-creating sector after agriculture, providing employment to over 1 million, directly and indirectly, mostly youths. In a report by the Nigerian Export-Import Bank, Nollywood is said to generate about $590 million annually and is considered a vital non-oil area that is crucial to Nigeria’s economic diversification. However, a World Bank report estimates that “for every legitimate copy (of a Nigerian film) sold, nine others are pirated”. As of 2014, an estimated figure of N82 billion was reported to have been lost by Nollywood alone to piracy.
Nigeria has one of the highest occurrences of piracy in the world. Despite the industry’s contribution to national revenue, the World Bank reports that for every legitimate film sold, nine others are pirated. About 80% of international music CDs available in Nigeria are pirated. In the local industry, 40% of products are copied, counterfeited, or sold illegally.
Piracy accounts for 7% of global trade, but Nigeria is home to 80% of pirated international CDs.
Enhancing IPR protection and enforcement in Nigeria will have to begin, essentially, with the development of an IP policy that recognizes the importance of a robust and virile IPR legal framework to National developmental aspiration, particularly as regards science and technology and trade and industry. This step will then have to be followed by an inclusive reform involving the identification of the critical problems bedeviling the administration of this creative sector of the economy as well as the development of regulatory frameworks governing the sector which seek to address the identified critical problems as well as use IP as a vehicle of technical and industrial development and avenue for wealth and job creation.
This is necessary because most of Nigeria’s IP laws are old and out of sync with the trends in the 21st Century global marketplace. For instance, the Trade Marks Act was enacted in 1967 (and even then, was a re-enactment of the UK’s 1938 Trade Marks Act) while the Patents and Designs Act was in 1971. Current laws fail to contemplate, and therefore do not provide means, for protecting new developments and innovations in industrial property. Stakeholders have repeatedly pointed out the fact that in other advanced climes (like in Britain from where most of the Nigerian IP legislation took their roots), reforms of the laws have been carried out severally to enhance IPR protection, eliminate onerous statutory provisions and ensure conformity with new innovations.
Then there is the fact that the country is not a member of some prominent multilateral organizations that provide for regional and international registration of IPRs, such as the Harare-based African Regional Intellectual Property Organisation (“ARIPO”); the Yaoundé-based Organisation Africaine de la Propriété Intellectuelle (“OAPI”); and the Geneva-based International Patent Cooperation Union (“IPCU”) formed based on the 1970 Washington Treaty – the Patent Cooperation Treaty (PCT). Neither has it ratified in accordance with Section 12 of the 1999 Constitution, recent intellectual property treaties, and conventions to which it is a signatory.
The underlying problem that the foregoing identifies is the dearth of an IP policy for the nation. Successive Governments have failed to understand the critical role the protection and enhancement of IPR play in the achievement of the industrial and commercial development of a country.
Obviously, Nigeria needs to develop a national policy on IP as a matter of urgency. From the experiences of China, India, and the advanced countries of the world such as the US, no nation can consciously and seamlessly develop its IP without first setting up, and vigorously propagating, a National Policy Framework that will spell out in clear terms the overall IP goal of the nation and launch time-based policy thrusts with short, medium and long term development goals.
Nigeria has bright minds that can compete globally in virtually all facets of life. Motivated by strong IP laws and enforcement, intellectual property can be a veritable source of wealth for this teeming population.
Experience shows that when countries strengthen their IP laws, they thrive. China and India are shining examples.
It, therefore, behooves the federal government to put her house in order now so that the floodgates of creative destruction can be opened.