Cablegate: Nigeria: Gon Ipr Officials Enthusiastic Following Usg

Published: Thu 17 Jul 2008 08:12 AM
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1. (U) Summary. The United States Patents and Trademarks Office
(USPTO) and the U.S Department of Commerce Commercial Law
Development Program (CLDP) with sponsorship from the United States
Agency for International Development (USAID) held two concurrent
workshops from June 24 to 26 for GON intellectual property rights
(IPR) officials covering intellectual property (IP) protection,
enforcement, and adjudication, including trademark enforcement. The
workshops were USG deliverables from the December 2007 Trade and
Investment Framework Agreement Council meeting. High-level
participation by the Minister of Commerce and Industry Charles Ugwuh
and the Ambassador demonstrated renewed GON commitment to addressing
Nigeria's poor IP record, along with U.S. support. Also present at
the workshops were attorneys from the Intellectual Property Law
Association of Nigeria (IPLAN), judges from Nigeria and Ghana, and
representatives from the Nigerian recording and film industry. The
participants were so energized by the workshops that they agreed to
collectively draft an impromptu communiqu recommending private
sector and GON IP enforcement agencies deepen collaboration,
increase IP public awareness, improve inter-agency partnerships,
amend and strengthen IP laws, and lastly, combine Nigeria's
disparate IP agencies into one agency. At the same time,
comprehensive IP legislation remains a work in progress, and there
is a long way to go to achieve better enforcement results. End
2. (U) Two concurrent three day workshops focusing on "Law, Policy
and Enforcement of Intellectual Property and Trademark Examination"
were held in Abuja from June 24 - 26. The workshops were organized
by the U.S Department of Commerce, Commercial Law Development
Program (CLDP) Office of the General Counsel, and the United States
Patent and Trademark Office (USPTO) with sponsorship from USAID, and
in collaboration with the Nigerian Federal Ministry of Commerce and
Industry (MCI). The workshops were USG capacity building
deliverables from the TIFA Council Meeting held in Abuja in December
Opening Ceremony
3. (U) Opening remarks were provided by the Ambassador, Minister of
Commerce and Industry Charles Ugwuh and a representative of the
Director General of the National Agency for Food and Drug
Administration and Control (NAFDAC). The Ambassador emphasized the
importance of IP protection in attracting foreign direct investment
leading to economic growth and development. She noted the dangers
posed by counterfeit pharmaceuticals and automobile parts, and
stressed the importance of IP protection in supporting public health
and safety. The Ambassador underscored the need for capacity
building within IP agencies throughout the West-African sub-region.
4. (U) Minister Ugwuh praised U.S efforts assisting Nigeria to build
IP enforcement capacity and commended other ongoing collaboration
between the U.S. and Nigeria. Minister Ugwuh reported that the GON
would continue implementing its economic reform program in line with
the 7-Point Agenda of President Yar'Adua. Part of this reform is a
plan to ensure that goods are cleared at the ports within 48 hours.
To achieve the 48-hour target, the GON plans to withdraw all
agencies apart from the Nigerian Customs Service (NCS) from the
ports to streamline processing. Whenever the need arises, NCS could
call on the other agencies to provide technical or professional
advice, and in the longer term the GON plans to improve NCS capacity
to handle all requests at the ports such as is done in developed
countries. Minister Ugwuh asked participants at the workshop to
provide inputs to the proposed Customs policy and advise if the time
is appropriate to implement the proposed reforms. On the proposed
creation of a one-stop GON IP agency that would be responsible for
IP protection and enforcement, Ugwuh commented that the ongoing
bickering among various GON agencies detracts from the common goal
to protect IP and he hopes that Nigeria would follow best practices
of other World Trade Organization (WTO) members by creating one
Excellent Attendance
5. (U) More than 140 participants drawn from various GON agencies,
IPLAN, the private sector, and the Ghanaian judiciary were
represented at the event. The GON agencies that participated in the
program included the Nigerian Copyright Commission (NCC), the
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Nigerian Customs Service (NCS), the Economic and Financial Crimes
Commission (EFCC), Standards Organization of Nigeria (SON), National
Agency for Food and Drug Administration and Control (NAFDAC),
National Office for Technology Acquisition and Promotion (NOTAP),
National Drug Law Enforcement Agency (NDLEA), and the Trademarks,
Patents and Designs Registry under the Ministry of Commerce and
Industry (MCI).
6. (U) Other participants included judges from the Nigerian and
Ghanaian judiciary, attorneys from IPLAN, and representatives from
the Nigerian film and recording industry. Subject matter experts at
the workshop came from the USPTO; U.S. Copyright Office; CLDP; World
Intellectual Property Organization (WIPO); an attorney from the law
firm of Spoor and Fisher, based in Pretoria, South Africa; and the
British American Tobacco company.
Final Communique Recommendations
7. (U) The participants were so energized by the workshops that they
agreed to collectively draft an impromptu communiqu making the
following recommendations:
-- Increased inter-agency cooperation among GON IP agencies;
-- Increased cooperation between the U.S. and Nigeria in IP capacity
-- Amendment of current IP legislation to accommodate new
developments in IP and better protect IP;
-- Closer cooperation between IP right holders and GON IP agencies
to increase public awareness;
-- More robust funding for GON IP agencies;
-- Incorporation of the various IP agencies into a single agency;
-- The NCS should develop a framework on the enforcement of IP;
-- The NCS should improve border enforcement to combat smuggling of
pirated and counterfeit goods; and
-- The private sector should develop a strategy to support GON
efforts in combating counterfeiting and piracy.
Domestic Legal Framework Update
8. (U) Nigeria is a signatory to the Bern, Paris, Rome, and WIPO
Conventions. Bankole Sodipo of IPLAN and other participants
highlighted the inadequacies of the present IPR legal regime. They
lamented that laws on patent and trademarks legislation are
outdated, were enacted in the 1960s, are mostly an adoption of
British legal statutes that existed at the time, and that these laws
cannot accommodate current developments in IP such as the use of the
internet. It was also disclosed that a franchising law does not
exist; rather, such transactions are treated under contract law. A
hindrance to legal action is that in civil suits the Nigerian court
system does not award legal fees to the party that wins, thereby
discouraging stakeholders without deep pockets. Of the agencies
represented only NCC and NAFDAC have the enabling legislation to
prosecute pirates.
9. (U) A Nigerian Industrial Property Commission (NIPCOM) bill is
currently at the National Assembly. The NIPCOM bill contains
provisions for comprehensive registration of Patents and Designs,
Plant and Animal Varieties, and Animal Breeders Rights. The bill
proposes creating an Industrial Property Commission that would be
responsible for all IP issues except copyrights. The NIPCOM bill is
a private-member bill drafted by IPLAN and sponsored by Senator Wada
of the National Assembly. (Note: A USG inter-agency team met with
Senator Wada at the time of the December 2007 TIFA Council and later
sent to the Senator USG comments on the draft bill. End Note)
10. (SBU) Bickering among various GON IP agencies led to IPLAN
taking the initiative to push the NIPCOM legislation. There is an
ongoing supremacy tussle between the NCC which is supervised by the
Ministry of Justice (MOJ) and the Ministry of Commerce and Industry.
While stakeholders would like to have a one-stop agency on IP, the
NCC insists it should be the lead agency on IP. During the last
administration it maneuvered to get an executive order for the
creation of a Nigerian Intellectual Property Commission; however,
there is no enabling legislation. The MCI argues that under WTO
best practices Trade Ministries should be responsible for IP issues
and Nigeria should not be different. President Yar'Adua has
instructed both the Ministers of Justice and Commerce and Industry
to harmonize their views and come up with a way forward. (Comment:
It is likely that if the MOJ and MCI could reach an agreement and
come up with an executive bill on a one-stop GON IP agency, the
present NIPCOM bill would be withdrawn. End Comment)
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Enforcement - Nigerian Customs Service
11. (U) A large contingent from NCS attended and was very much
engaged during all three days. In its presentation the NCS
acknowledged the dangers of counterfeiting and piracy. It admitted
the problems it faces in ensuring that only legitimate products come
into Nigeria through the borders. NCS enumerated its action plan
for IP enforcement to include making an official request to the GON
Tariff Technical Committee to amend a portion of the proposed tariff
book to state that "all counterfeit materials or articles including
base or counterfeit coin of any country are prohibited". According
to NCS, this will give it wider powers to combat counterfeiting and
piracy because presently only counterfeit coins are recognized as
counterfeit items in the existing Customs and Excise Management Act
12. (U) The NCS also plans to reach out to right holders to
highlight distinguishing signs and marks for identifying their
original products to enable NCS to combat fakes and counterfeits
effectively. NCS will create a recordation system that will assist
in creating a database of genuine products. An IP unit will be
instituted within the NCS and there are plans to improve the level
of awareness on IP within the NCS. NCS representatives were
outspoken in supporting inter-agency cooperation and close ties to
the private sector.
EFFC Involvement in IP Enforcement
13. (U) A speaker from the EFCC provided insights into raids that
had been conducted on several illegal optical disc (OD) replicating
plants in Lagos. The EFCC rep estimated that 80% of international
music CDs and 40% of domestic music CDs in Nigeria were pirated. He
said the raided plants were run by Asians and the workers arrested
in the premises were also from Asia. The EFCC rep lamented that at
one of the raided plants, local policemen had been hired to guard it
and had tried to prevent the EFCC from conducting the raid; however,
the raids were successful. In follow-up to his recent return from a
USG sponsored program at the UPPTO Global Intellectual Property
Academy in Virginia, the EFCC rep expressed encouragement because a
Zambian classmate had told him about a Zambian IP Task Force. He
urged his colleagues in the GON to support creation of their own
inter-agency IP Task Force that would also include the Nigerian
Police Force.
NCC's Mixed Reviews on Enforcement
14. (U) The NCC is currently implementing the Optical Disc
Regulation, and it reported that more OD plants have been
registered. Between 2005 and 2007 the NCC conducted 115 raids,
arrested 373 people, and prosecuted 15 cases, which resulted in four
convictions. The NCC rep highlighted the challenges faced by the
NCC in its enforcement efforts - long and tortuous judicial process,
and inadequate budget funding. It is estimated that it costs
between 5 million naira ($42,700) to 10 million naira ($85,400) to
conduct a raid, which is major limitation for the financially
strapped agency.
15. (U) Workshop participants chided the NCC for the paltry number
of convictions it has architected, and questioned the NCC's
investigative competence. In his response, the NCC rep reiterated
the challenges faced by the NCC and advised that the successes he
highlighted were achieved only between 2005 and 2007. He said
participants should view the successes from the context of the NCC
scorecard prior to 2005, which he adjudged not commendable. On
investigative competence, there is room for improvement and NCC
would welcome more training for enforcement officers. To speed
prosecutions, the NCC suggests the establishment of commercial
courts to adjudicate copyright cases.
NAFDAC Seeks USG Support on Counterfeiting
16. (U) NAFDAC underscored problems with counterfeit medicines
imported from India and Asia into the West African sub-region.
According to NAFDAC, some countries regulate domestic production of
medicines but do not regulate medicine exports to other countries,
including India and China and that this double-standard should be
addressed at the World Health Assembly (WHA) and other international
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forums. NAFDAC advocated for more stringent regulations on
counterfeiting worldwide and requested USG support at the next WHA.
Private Sector Stakeholders Frustrated
17. (U) Bankole Sodipo of IPLAN commented that IP enforcement in
Nigeria has not achieved much in prosecuting IP infringers, and that
existing laws need to be amended to reflect current realities and
developments. He listed two major challenges to IP enforcement:
-- Rights holders' poor understanding of the laws, which includes
the false belief that it is the primary responsibility of the
government to enforce IPR;
-- The cost of enforcement is high, while IP agencies are not
adequately funded.
Sodipo also stressed the need for continuous training of enforcers
and the judiciary. He agreed with previous speakers that
inter-agency cooperation among the various IP agencies and
cooperation with rights holders is very important. In conclusion he
suggested producing a documentary on the ills of piracy with
well-known actors and airing it on television as a first step
towards public enlightenment.
18. (U) A rep from the Nigerian recording industry complained that
IP enforcement was poor. He noted that the Alaba market in Lagos
has for sale pirated CDs with 100 tracks for as little as 35 naira
(29 cents) and that his industry is being decimated. The domestic
recording industry is taking action and has gone to the management
of the Alaba market to stop the sales of pirated CDs. His
association is trying to put pressure on other marketers, such as
sellers of furniture, appliances, electronic goods etc to close down
or remove the pirated CDs. He is so far encouraged by the
discussions with the market and plans to sign an MOU to establish an
anti-piracy task force in it. He lamented the growth in illegal
optical disk replicating plants from 5 in 2003 to 18 in 2008. He
estimated that OD plants are producing more than local demand and
are now exporting pirated ODs. He hinted that high-level political
ties to the pirates have led to the growth.
19. (U) The level of enthusiasm among GON IP agencies is high, and
the USG has contributed significantly to achieving this. The
proposed inter-agency working group/task force will go a long way in
making more progress in IP enforcement. However, it is important
for the GON to increase public awareness on IPR and for the private
sector to collaborate with the GON to fight piracy and
counterfeiting. Following the workshop, members of IPLAN and other
stakeholders were interested in partnering with the Mission to
develop an IP public awareness campaign using USG funding. The
Mission will work with IPLAN and other stakeholders to put forward a
plan using State EEB/TPP/IPE and R/PPR funding for IPR outreach.
End Comment.
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