Cablegate: Nigeria 2004 Special 301 Review On Ipr

Published: Tue 2 Mar 2004 06:25 AM
This record is a partial extract of the original cable. The full text of the original cable is not available.
E.O. 12958: N/A
SUBJECT: Nigeria 2004 Special 301 Review on IPR
Ref: State 29549
1. SUMMARY. Progress on IPR protection in Nigeria
continues to be hampered by inadequate funding and poor
public and government awareness. Nonetheless, we do not
believe Nigeria should be added to the Watch List because
improvements, however small, are detectable, and any
momentum would likely be lost with sanctions. While the
GON improved its position in the last year regarding its
use of computer software, it has not yet paid licensing
fees. Nigeria made slight improvements in the areas of
optical media piracy and prosecution of IPR violations,
but a lack of resources and training, coupled with low
public and government understanding and appreciation of
the benefits of IPR protection, leave enforcement weak.
Industry and government representatives nonetheless
attest to the GON's continued attention to IPR issues and
incremental efforts to address piracy and improve
enforcement. END SUMMARY.
A. Optical Media Piracy
2. Nigeria remains a large market for a wide range of
pirated optical media products. Pirated versions of CDs
and VCDs abound for sale on the streets of Nigeria's
urban centers. Much of the pirate disc industry is
centered in a section of Lagos where several local
optical media companies have the capacity to produce over
500 copies of CDs, DVDs, and VCDs daily.
3. The GON appears to have taken a step toward addressing
this problem, but effective enforcement is stalled. We
are told that the Nigerian Copyright Commission (NCC) now
requires anti-piracy holograms to be included on optical
media; however, a court injunction has put the
prosecution of at least one case in jeopardy, as well as
future enforcement of the hologram scheme.
B. Use/Procurement of Government Software
4. Until recently, the GON was considered the largest
abuser of IPR in that most, if not all, government
offices used pirated software. In early 2002 President
Obasanjo directed all ministries and parastatals to
account for the software in their possession, and to
regularize software usage. In 2003 the National
Information Technology Development Agency (NITDA), in
coordination with the NCC, completed an audit of software
in use by the government and negotiated license
agreements with the software owners.
5. Microsoft reports that it has signed licensing
agreements with most government and parastatal agencies,
and considers this a major step toward legitimizing
government usage of its software. However, the GON is
yet to pay the fees associated with the licensing
agreements, and it is unclear when or if such funds will
be appropriated.
C. TRIPS Compliance
6. Nigeria is a signatory to the Universal Copyright
Convention and the Berne Convention. In 1993, Nigeria
became a member of the World Intellectual Property
Organization (WIPO) and thereby became party to most of
the major international agreements on intellectual
property rights. The Patents and Design Decree of 1970
governs the registration of patents; and the Standards
Organization of Nigeria is responsible for issuing
patents, trademarks, and copyrights. Once conferred, a
patent conveys an exclusive right to make, import, sell,
or use the products or apply the process. The Copyright
Decree of 1988, based on WIPO standards and U.S.
copyright law, makes it a crime to export, import,
reproduce, exhibit, perform, or sell any work without the
permission of the copyright owner.
7. In 1999, amendments to the Copyright Decree
incorporated most TRIPS protections for copyrights,
except provisions to protect geographical indications and
undisclosed business information. The amendment also gave
the Nigerian Copyright Commission (NCC) additional
enforcement powers.
8. Four TRIPS-related bills and amendments have been
under consideration for two years, but none have been
forwarded to the National Assembly. The Ministry of
Justice is reviewing their provisions. According to the
GON, the World Intellectual Property Organization (WIPO)
reviewed the first three of the acts listed (all except
the plant and animal variety legislation) and determined
that their enactment would bring Nigeria into full
compliance with TRIPS.
--The Nigerian Copyrights Commission (NCC) and the
Trademarks and Patents Registry (TPR) prepared a bill
that would merge both agencies to establish an
Intellectual Property Commission (IPCON). The draft law
provides for the new commission to retain a part of the
fees it would collect to fund operations and programs.
--The Ministry of Justice is reviewing an amendment to
the Patents and Designs Act that will make comprehensive
provisions for the registration and proprietorship of
patents and designs.
--The Ministry of Justice is also reviewing an amendment
to the Trademarks Act that will improve existing
legislation relating to the recording, publishing, and
enforcement of trademarks.
--A bill to provide protection for plant varieties,
including biotechnology, and animal breeds, was discussed
by various agencies, but no progress has been reported.
D. Enforcement
9. Law enforcement remains weak, and the judicial process
is slow and subject to corruption. Inadequate funding of
law enforcement and judicial functions is the major
obstacle to effective enforcement of IPR laws. Police
and courts lack everything from staff and computers to
vehicles and office supplies.
10. Companies rarely seek trademark or patent protection
because it is generally perceived as ineffective given
the sad state of police and court infrastructure.
Microsoft reports it pursued only one raid in 2003. The
company has made an effort to assist government IPR
enforcers with logistical support, such as donating a bus
for the movement of officers to the location of a raid.
The company also reports that it has been asked for a
wide variety of in-kind assistance, and it does not want
to fall into a pattern in which it is expected to pay for
the proper enforcement of Nigerian law. It is unlikely
that law enforcement will improve without assertive
political leadership, policy direction, and perhaps most
important, adequate financial support.
11. Another key deficiency is an inadequate appreciation
among regulatory officials, distributor networks, and
consumers of the benefits of intellectual property rights
protection. This is coupled with the fact that the
average consumer price of legally produced or imported
materials is beyond the reach of most Nigerians. In 2003
the managers and legal advisors of two banks charged with
using unlicensed software convincingly claimed they
simply didn't realize they were obligated to use licensed
copies of computer operating systems. In another
instance, two major insurance firms have been balking at
pressure to pay licensing fees, each insisting that it
will pay only after its competitor does so.
12. Nigeria's over-stretched and under-trained police
lack sufficient understanding of IPR. The Nigerian
Customs Service has received some WIPO sponsored
training, but even those officers who can identify
pirated imports are not allowed, under the current law,
to impound the offending materials unless the copyright
owner has filed a complaint against that particular
shipment, which is only done in very rare instances.
13. IPR cases are handled primarily by the Federal High
Court, whose judges generally have broad familiarity with
IPR protection law. However, an appeal might not be
handled by a knowledgeable judge, and misapplication of
the law is not uncommon. Lagos is the only region in
Nigeria where most judges have a reasonable knowledge of
IPR. Further exacerbating the problem, most legal
practitioners do not possess adequate knowledge of
intellectual property rights to properly handle cases.
14. Nigerian artists including writers, filmmakers, and
musicians have in recent years campaigned for more
effective copyright protection. Lawyers active in IPR
issues formed the Industrial Property Law Interest Group
(IPLIG) to educate the public and lobby on behalf of
industrial IPR issues. IPLIG has sponsored copyright
conferences and initiated an IPR course at the Lagos Law
School. Software company representatives, represented by
the Business Software Alliance (BSA), successfully worked
directly with the Nigerian Government to stop its use of
pirated software. Nigerian filmmakers formed the Proteus
Entertainment Agency to challenge copyright infringement
and promote stronger law enforcement. However, a member
of a group called Musical Owners Rights Association of
Nigeria (MORAN) is said to have obtained an injunction
against his prosecution for pirating music in Abia State
in Southeastern Nigeria, placing a hold on hologram
15. COMMENT. Although Nigeria is a large market for
pirated goods, it should not be included in USTR's
Special 301 Watch List. The GON is pursuing efforts to
shore up its regulatory and legal framework. Overall, the
GON continues efforts to improve IPR protection.
President Obasanjo's commitment to ensure that GON
agencies use licensed software proves the government is
not oblivious to its obligations and maintains IPR among
the issues of international importance it attempts to
address. Furthermore, since the Nigerian populace
perceives that the value of its money has shrunk
substantially over the last few years (which is, in large
part, true), any move that would seem to place a higher
burden on consumers would be intepreted as a cave-into
U.S. policies and interests and hence would be greeted
with animosity, if not outright hostility. END COMMENT.
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