US embassy cable - 02ABUJA649

NIGERIA: 2002 SPECIAL 301 REVIEW ON IPR PROTECTION

Identifier: 02ABUJA649
Wikileaks: View 02ABUJA649 at Wikileaks.org
Origin: Embassy Abuja
Created: 2002-02-28 11:10:00
Classification: UNCLASSIFIED
Tags: KIPR ETRD ECON EINV NI IPR
Redacted: This cable was not redacted by Wikileaks.
This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 ABUJA 000649 
 
SIPDIS 
 
 
STATE FOR EB/IPC:DRBEAN 
DEPT PLEASE PASS TO USTR: BURKY/ALVAREZ 
DOC FOR LASHLEY 
USPTO FOR URBAN 
LOC FOR TEPP 
 
 
E.O. 12958: N/A 
TAGS: KIPR, ETRD, ECON, EINV, NI, IPR 
SUBJECT: NIGERIA: 2002 SPECIAL 301 REVIEW ON IPR 
PROTECTION 
 
 
REF: (A) STATE 12498 (B) STATE 3106 (C) 01 LAGOS 647 
 
 
1. Mission provides response to ref A request for views on 
Nigeria,s compliance with TRIPS and recent trends in IPR 
protection. 
 
 
2. Summary and Introduction: The Government of Nigeria (GON) 
appears to be making progress bringing its IPR legislation 
into compliance with TRIPS.  Areas where an inadequate 
regulatory and legal framework exist are being targeted for 
action by the key GON agencies, although whether proposed 
enhanced IPR legislation will pass into law remains to be 
seen.  Nevertheless, low cost piracy of optical media is 
commonplace due not only to lack of enforcement resources and 
trained enforcement staff, but also to inadequate public and 
government understanding and appreciation of the benefits of 
IPR protection.  In addition, Nigeria,s low per capita 
income diminishes the likelihood of the successful 
introduction of the more costly licensed products, which fall 
outside the purchasing capability of most Nigerians. 
 
 
3.  Licensed software dealers, such as Microsoft Nigeria, are 
the primary catalysts for the recent upsurge in the 
procurement of these products among Nigeria,s financial 
institutions.  Ironically, the GON, as the largest user of 
computers in the country, is also the largest consumer of 
non-licensed computer products.  Reversing Nigeria,s weak 
enforcement culture will be a difficult, long-term effort. 
Because piracy is commonplace here, we must closely monitor 
Nigeria's progress.  However, progress has been made. 
Continued positive engagement is preferable to adding Nigeria 
to the Watch List, and will likely produce better results. 
End Summary. 
 
 
--------------------------------------------- --- 
State of Intellectual Property Rights Regulation 
--------------------------------------------- --- 
 
 
4. Most of Nigeria,s IPR protective legislation complies 
with TRIPS.  In 1999, amendments to the Nigerian Copyright 
Law incorporated most TRIPS protections for copyrights, 
except issues relating to Geographical Indications and the 
protection of Undisclosed Information.  Four TRIPS-related 
bills and amendments are currently in various stages of 
legislative enactment. 
The World Intellectual Property Organization (WIPO) has 
reviewed the first three of the acts listed (all except the 
Breeders and Farmers Rights legislation) and, according to 
the GON, determined that their enactment would bring Nigeria 
into full compliance with TRIPS. 
 
 
(a) A bill to establish an Intellectual Property Commission 
(IPCON), merging the Nigerian Copyrights Commission (NCC) and 
the Trademarks and Patents Registry, is now before the 
National Assembly.  The draft law also provides for the new 
commission to retain a portion of the revenue accruing to it 
to fund operations and programs. 
 
 
(b) An amendment to the Patents and Designs Act that will 
make comprehensive provisions for the registration and 
proprietorship of patents and designs is under review by the 
Ministry of Justice. 
 
 
(c) An amendment to the Trademarks Act that will improve 
existing legislation relating to the recording, publishing, 
and enforcement of trademarks is also under review by the 
Ministry of Justice. 
 
 
(d) Still in the drafting stage, a bill to provide for the 
protection of plant varieties, animal breeders, and farmers 
rights will ensure intellectual property rights protection 
for genetically engineered agricultural products. 
 
 
------------- 
Optical Media 
------------- 
 
 
5. Nigeria is a large market for a wide range of pirated 
optical media products.  The GON has slowly begun to take 
measures to counter the problem.  The Copyright Amendment 
Decree (1999) inserted a new section (18A) into the principal 
Copyright Act (1988) which provides the Nigerian Copyright 
Commission (NCC) additional anti-piracy powers.  The NCC 
plans to prescribe the insertion of anti-piracy devices (e.g. 
holograms) to checkmate copyright abuses as well as identify 
real and pirated copies of sound recordings and 
&cinematographic8 films intended for sale, rental, hiring, 
lending, or other public distribution.  (Cinematographic 
films are interpreted to include music CDs, video CDs, 
CD-ROMs and DVDs.)  The NCC expects to launch this program in 
March 2002 and reportedly has concluded arrangements with a 
company to provide hologram stamps. 
 
 
6. Piracy of compact discs, video tapes, and other 
copyrighted products is rampant.  To date, the GON has not 
taken strong action against the pirate industry preferring, 
for example, to attack videocassette rental shops rather than 
manufacturers of pirated videocassettes.  Coordination among 
law enforcement authorities remains poor. 
 
 
----------------- 
Computer Software 
----------------- 
 
 
7. The GON categorizes software as literary work and provides 
copyright protection.  Microsoft and the Business Software 
Alliance (BSA) have been instrumental in combating pirated 
software.  To improve the regulator,s ability to enforce its 
own laws, Microsoft Nigeria is providing the NCC training in 
computer literacy and the identification of pirated software. 
 The company has also donated computers to the NCC to aid in 
the discharge of its duties. 
 
 
8. Microsoft Nigeria launched a publicity campaign to explain 
the benefits of respecting IPR.  Software development 
companies in Nigeria reportedly prefer that Source 
Identification Marks (SID) not be incorporated on their 
media.  They opine that SID does not provide them enough 
economies of scale benefits from such an exercise. 
 
 
9. During 2001, the Nigerian financial services sector 
aggressively shifted from being a user of pirated software to 
becoming generally compliant with the procurement of licensed 
products.  Microsoft Nigeria estimates that 65 percent of 
Nigeria,s banks are at various levels of compliance with 
procurement of licensed software.  Just one year ago, only a 
few were compliant. This reversal is due, in part, to 
Microsoft Nigeria and other local software companies 
effectively promoting the long-term cost advantages and 
customer protection benefits of using licensed products. 
That Microsoft Nigeria continues to threaten noncompliant 
financial institutions with court action has also helped. 
The dramatic change in bank usage of licensed software is 
also due to increased competitiveness among Nigeria,s banks 
in the campaign to obtain an edge in information technology. 
Many bankers now realize that pirated products often create 
more problems than solutions in their effort to improve 
customer service. 
 
 
10. Other large-scale software consumers, particularly the 
insurance sector, discount houses, brokerage firms and 
accountants, have yet to follow the lead of the banks. 
Increased competition among these entities, and the continued 
legal campaign against users of non-licensed software may 
change this situation.  Microsoft Nigeria claims they have 
achieved several out of court settlements leading to the use 
of licensed products. 
 
 
--------------- 
IPR Enforcement 
--------------- 
 
 
11. GON enforcement of IPR laws remains ineffective. Woeful 
lack of funding (the total budget for NCC,s IPR enforcement 
nationwide was only USD 43,000 in 2001), inadequate 
computerization to facilitate enforcement, and shortage of 
skilled manpower contribute to the weak enforcement effort. 
A key deficiency remains inadequate understanding and 
appreciation among regulatory officials, distributor 
networks, and consumers of the benefits from intellectual 
property rights protection. 
 
 
12. NCC leadership admits they lack sufficient enforcement 
officers to cover the entire country.  Some NCC offices are 
not staffed with prosecutors which prevents concluded 
investigations from going to trial.  According to the NCC, 
the frequency of raids on manufacturers and distributors of 
pirated materials depends on the availability of funds and 
the lodging of complaints by rights holders.  While over 150 
IPR enforcement raids were allegedly carried out nationwide 
in 2001, their impact has been negligible. 
 
 
13. While the extent of GON consumption of pirated software 
is unknown, the government itself is considered the most 
egregious abuser of IPR.  Many, if not most government 
offices, utilize pirated software.  To address IPR abuses 
within the GON, the NCC is forced to go through a protracted 
administrative process with the Ministry of Culture and 
Tourism, which oversees the NCC.  Nevertheless, according to 
the NCC, discussions aimed at ensuring that all government 
agencies use appropriately licensed software are ongoing with 
individual GON agencies.  The NCC is also pressing for the 
establishment of a single clearance office for bulk 
government purchases of licensed computer hardware and 
software.  Additionally, the NCC claims it is unable to audit 
firms with connections to important political figures. 
 
 
14. Most legal practitioners do not possess adequate 
knowledge of intellectual property rights law to address IPR 
properly in court, although a cadre of legal experts is 
developing.  IPR cases are handled primarily by the Federal 
High Court and High Court judges generally enjoy broad 
familiarity with IPR protection law.  However, at the 
Appellate Court level, a judge knowledgeable in IPR might not 
be handling the case, and misapplication of the law is not 
uncommon.  Lagos is the only region in Nigeria where most 
judges have a reasonable knowledge of IPR.  The USG,s 
Commercial Law Development Program (CLDP) is working to 
educate Nigerian civil and judicial officials on IPR through 
educational seminars and training programs. 
 
 
15. In addition to the judiciary, Nigeria,s over-stretched 
and under-trained police force lacks understanding of IPR. 
Moreover, IPR protection is not a priority.  It is unlikely 
that Nigeria,s police force, without assertive political 
leadership, policy direction, and financial support from the 
GON, can deter producers and vendors of pirated materials 
from operating. 
 
 
--------- 
Comment 
--------- 
 
 
16. Although Nigeria is a large market for pirated goods, it 
should not be included on the Watch List.  The Government is 
making considerable efforts to shore up its legal and 
regulatory framework.  For a variety of reasons, enforcement 
remains poor but some steps have been taken.  Given the many 
competing demands on the GON's resources, enforcement of IPR 
is a secondary priority.  However, the GON has shown a 
demonstrable, although weakly financed, commitment to IPR. 
More importantly, government policies have opposed piracy not 
condoned it.  Nigeria has much work to do but has some 
willing actors in both the public and private sector.  Thus, 
our interests are better served in providing encouragement 
and positive reinforcement to these watch dogs and not 
placing Nigeria on the list of worst offenders. 
Jeter 

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