THE Nigerian entertainment is presently threatened by the high rate of copyright piracy. Although Nigeria has what may be considered a good copyright law and although the Nigerian Copyright Commission takes its mandate seriously and has launched many commendable programmes, enforcement of existing legislation remains a major problem. Why?

Several laws govern intellectual property protection in Nigeria. Nigeria has also ratified several copyright treaties. Copyright in Nigeria is governed by the Copyright Act No. 47 of 1988 (codified as Chapter 68, Laws of the Federation of Nigeria, 1990) as amended. The Copyright Act has been amended twice by the Copyright (Amendment) Decree No. 98 of 1992 and Copyright (Amendment) Decree No. 42 of 1999. The Copyright Act is in four parts and 41 sections. Part I addresses issues such as eligibility for copyright protection, duration of copyrights, civil and criminal penalties for copyright infringement, and ownership of copyright.

Part II addresses neighbouring rights. Part III focuses on the administration of copyrights and addresses issues such as the establishment of the Nigerian Copyright Council and the appointment of the Director and other staff of the Council. Finally, Part IV covers miscellaneous topics including reciprocal extension of protection, presumptions and interpretations. Nigeria has also ratified several treaties relating to the protection of intellectual property. Among these treaties are: the Paris Convention for the Protection of Industrial Property (ratified September 1963), the Berne Convention for the Protection of Literary and Artistic Works (ratified September 1963), the Rome Convention (Performers, Producers of Phonograms and Broadcasting Organisations) (ratified October 1993), the Patent Law Treaty (ratified April 2005), and the Patent Cooperation Treaty (ratified May 2005). Nigeria has also assumed additional responsibilities by virtue of its membership in the World Intellectual Property Organisation (May 1993) and the World Trade Organisation (January 1995).

Absent effective enforcement, piracy will remain a major problem. What factors militate against effective copyright protection in Nigeria? There are at least six factors that militate against effective enforcement of intellectual property laws in Nigeria. The factors are:

Lack of popular support or public consultation: The Nigerian Copyright Act was adopted in 1988 at the height of military rule in Nigeria without any debate or discussion. Does anyone remember debating the merit or demerits of the Copyright Act? Essentially, the Copyright Act, the primary legislative tool for copyright protection in Nigeria today, was adopted without broad-based public discussion on the necessity for copyright protection or the scope of protection that was desirable contrary to paragraph 9 of the Adelphi Charter on Creativity, Innovation and Intellectual Property which states that in making decisions about intellectual property laws, “there should be wide public consultation.”

Inadequate cost-benefit analysis: An effective intellectual property regime must strike an appropriate balance between the monopoly powers of creators and the interest of the consuming public. In developed countries, the adoption of intellectual property laws is usually preceded by a detailed analysis of the cost and benefits of protection. Indeed, paragraph 2 of the Adelphi Charter states that “the public interest requires a balance between the public domain and private rights. It also requires a balance between the free competition that is essential for economic vitality and the monopoly rights granted by intellectual property laws.” Sadly, laws in Nigeria are frequently passed without serious attention to the direct and indirect cost of a proposed legislation. There is need for serious economic assessment of the costs and benefits of copyright protection in Nigeria.

Lack of Public Awareness: There is little public awareness or understanding of the intellectual property laws in the country. Existing laws are not readily accessible even to the educated class. The average man on the street is also ignorant of touted benefits of intellectual property protection. The Nigerian copyright commission admits that lack of awareness about the laws and administration of copyright constitutes “a major inhibition to the development of a sound copyright system in Nigeria.” Meaningful public education at the grassroots level must form a critical component of intellectual property enforcement in Nigeria.

Lack of Inclusion in Law School Curriculum: Structured legal education on intellectual property law must also be part of the equation. How many universities offer courses on intellectual property law? Very few. How many university libraries are equipped with basic books relating to intellectual property? Also very few. Presently, very few lawyers in Nigeria have expertise in the field and only a handful of universities in the country offer courses in this area. One solution could be for the Nigerian government to tap into the expertise of Nigerians in the Diaspora. There are many Nigerians abroad with expertise in intellectual property law who are willing to return to Nigeria to help strengthen the course offerings of law faculties in the country for little or no compensation.

Corruption and Weak Custom Enforcement: Attention must also be paid to the effect of corruption on intellectual property enforcement in Nigeria. Responsible agencies are rarely, if ever, audited or probed. There is need for accountability on the part of agencies challenged with the task of enforcing the countries intellectual property laws. For example, Nigerian ports are the principal gateways through which pirated imports come into the country and pirated exports leave. What has been the record of the Nigerian Custom Services in terms of interdiction? How does bribery and corruption undermine the enforcement capacity of the Nigerian Custom Service or the police?

Judicial Enforcement: Delays in the judicial system and other barriers to justice also discourage intellectual property litigation and enforcement in Nigeria. Because intellectual property law is not taught in many universities in Nigeria, few judges in the country have knowledge about this area of law. The libraries of most courts in Nigeria are grossly inadequate too. One solution would be to create continuing legal education seminars for our judges. Such targeted training seminars could be organised by the Nigerian Bar Association, perhaps in cooperation with the American Bar Association.

Can Nigeria afford protection to artists, musicians and film makers and at the same time preserve the country’s public domain? To effectively protect creative works generated by the entertainment industry, the government must address the widely held belief that intellectual property protection is a Western concept irrelevant in Africa. Debate about whether and to what extent Nigerian artists and musicians deserve copyright protection must be divorced from the broader debate about the merits and demerits of global strengthening of IP rights. The government must also seriously address the numerous factors that undermine effective enforcement of laws in the country including corruption, lack of coordination among the responsible agencies, lack of accountability, and lack of resources. However, for enforcement to make sense and be effective, the underlying law must be appropriate, balanced, understood by the general public, and a product of broad-based debate and participation.

Ewelukwa-Ofodile is a Professor at the University of Arkansas School of Law, United States.

*Professor Uche Ewelukwa Ofodile, Professor of Law, University of Arkansas School of Law, Fayetteville, AR 72704, [email protected]; (479) 575-5283 (ph), (479) 575-3320 (fax) 1