US embassy cable - 03ABUJA416

UNCLAS SECTION 01 OF 03 ABUJA 000416 
 
SIPDIS 
 
 
STATE FOR AF/W AND EB/IPC 
SATE PASS USTR ALVAREZ 
COMMERCE FOR LASHLEY 
USPTO FOR URBAN 
LOC FOR TEPP 
 
 
E.O. 12958: N/A 
TAGS: KIPR, ETRD, ECON, EINV, NI 
SUBJECT: Nigeria: 2003 Special 301 Review on IPR 
Protection 
 
Ref: State 43677 
 
 
Summary 
------- 
1. Piracy of optical media remains a major issue in 
Nigeria. Lack of enforcement resources and trained 
enforcement staff, coupled with inadequate public and 
government understanding and appreciation of the benefits 
of IPR protection, make reversing this situation a 
difficult, long-term effort. The Government of Nigeria 
(GON)--by far the largest user of computers in the 
country--is making a serious effort to see that all 
government agencies use only licensed software, but it 
still remains the largest user of pirated software in the 
country. Meanwhile, the GON appears stalled in its 
efforts to bring its IPR legislation into full compliance 
with TRIPS. Admittedly, there has been little progress 
over the last year, but we believe that naming Nigeria to 
the Watch List is unwarranted. In fact, doing so might 
make further progress on this issue considerably more 
difficult. End Summary. 
 
 
Optical Media Piracy 
-------------------- 
2. Nigeria remains a large market for a wide range of 
pirated optical media products. Although no formal 
surveys have been conducted, Emboffs observe that nearly 
all recordings offered for sale are pirated. Much of the 
pirate industry is centered in one 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 has slowly begun to take measures to counter 
the problem. In early 2002, the Nigerian Copyrights 
Commission (NCC) said it would require optical media 
manufacturers to include anti-piracy devices (for 
example, holograms) on their recordings. This program has 
been subject to numerous delays, but the NCC announced 
recently that all media would include holograms by March 
2003. The NCC has no plans to require manufacturers to 
include source identification codes. Nor are there plans 
to enact legislation that would specifically target 
optical media piracy. 
 
 
4. To date, the GON has demonstrated only tepid 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 almost non- 
existent. 
 
 
Use/Procurement of Government Software 
-------------------------------------- 
5. While the extent of GON consumption of pirated 
software is unknown, the government itself is considered 
the largest abuser of IPR. Many, if not most, government 
offices, utilize 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. 
 
 
6. To that end, the President tasked the National 
Information Technology Development Agency (NITDA)--in 
coordination with the NCC--with auditing all software in 
use by the government and negotiating license agreements 
with the software owners. NITDA has faced delays in 
completing the first step of the process, determining the 
volume and types of software in use. NITDA promised to 
provide an inter-ministerial review committee with a 
report by September 2002 and then December 2002, but the 
report is still pending. 
 
 
7. Although the audit report has not been completed, 
NITDA attempted to begin negotiations with at least one 
software company, Microsoft. A participant in a recent 
meeting between NITDA and Microsoft says that NITDA 
lacked sufficient data on the government's use of 
Microsoft products to make any headway. It is likely that 
NITDA--underfunded and poorly staffed, given the enormity 
of its new mandate--will continue to make similar 
missteps. 
 
 
TRIPs Compliance 
---------------- 
8. 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. 
 
 
9. 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. 
 
 
10. Four TRIPS-related bills and amendments are currently 
in various stages of preparation, but none have been 
forwarded to the National Assembly. The World 
Intellectual Property Organization (WIPO) has reviewed 
the first three of the acts listed (all except the plant 
and animal variety legislation) and, according to the 
GON, determined that their enactment would bring Nigeria 
into full compliance with TRIPS. 
 
 
--The NCC and Trademarks and Patents Registry (TPR) are 
preparing a bill that would merge both agencies to 
establish an Intellectual Property Commission (IPCON). 
The draft law also provides for the new commission to 
retain a portion of the fees it collects 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. 
 
 
--Various agencies are drafting a bill to provide 
protection for plant varieties, including biotechnology, 
and animal breeds. 
 
 
Enforcement 
----------- 
11. Law enforcement, particularly for patents and 
trademarks, remains weak, and the judicial process is 
slow and subject to corrupting influences. Inadequate 
funding, lack of computerization to facilitate 
enforcement, and staffing shortages contribute to 
Nigeria's weak IPR enforcement climate. 
 
 
12. A key deficiency remains inadequate understanding and 
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, particularly software, is beyond the 
reach of most Nigerians. In particular, Nigeria's over- 
stretched and under-trained police lack 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. Companies rarely seek trademark or patent protection 
because it is generally perceived as ineffective. 
Nonetheless, recent government efforts to curtail IPR 
abuse have yielded some results. A number of high profile 
actions have been taken against IPR violators. The 
Nigerian Police, working closely with the NCC, have 
occasionally raided enterprises allegedly producing and 
selling pirated software and videos. Industry sources 
indicate that the NCC has been reinvigorated to an extent 
by the appointment of a new director general in July 
2002, who voices a commitment to enforcement. Microsoft 
reports more successful raids in 2002, including a bank 
that has been charged in court, and settlements that have 
resulted in the purchase of appropriate licenses. 
 
 
14. However, most raids appear to be conducted against 
small-scale pirates, and not the large, well-connected 
ones. Moreover, very few cases involving copyright, 
patent, or trademark infringement have been successfully 
prosecuted, and most cases continue to be settled out of 
court. It is unlikely that law enforcement will improve 
without assertive political leadership, policy direction, 
and adequate financial support. 
 
 
15. IPR cases are handled primarily by the Federal High 
Court, whose judges generally enjoy broad familiarity 
with IPR protection law. However, in the lower courts, a 
judge handling the case might not be knowledgeable in 
IPR, and misapplication of the law is not uncommon. Lagos 
is the only region in Nigeria where the majority of 
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. In 2002, the USG's Civil 
Law Development Program (CLDP) continued to educate 
Nigerian civil and judicial officials on IPR. 
 
 
16. Rightsholders continue to push for improved law 
enforcement. Nigerian artists--including writers, 
filmmakers, and musicians--have in recent years 
campaigned for more effective copyright protection and 
amendments to existing law. 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 several copyright 
conferences and initiated an IPR course at the Lagos Law 
School. Software company representatives, represented by 
the Business Software Alliance (BSA), continue to work 
directly with the Nigerian Government to reduce the now 
high number of agencies using pirated software. Nigerian 
filmmakers formed the Proteus Entertainment Agency to 
challenge copyright infringement and promote stronger law 
enforcement. 
 
 
Comment 
------- 
17. Although Nigeria is a large market for pirated goods, 
it should not be included in USTR's Special 301 Watch 
List. The GON continues to make efforts to shore up its 
regulatory and legal framework. Admittedly, enforcement 
remains poor, mostly due to inadequate funding but also 
the result of competing priorities. Overall, though, the 
GON has made a serious effort to improve IPR protection. 
Obasanjo's effort to ensure that GON agencies use 
licensed software is this year's best example of this 
commitment. Furthermore, naming Nigeria to the Watch List 
would only serve to incite latent anti-Western sentiments 
in Nigeria and complicate efforts of local and foreign 
rights-holders to strengthen the protection afforded 
their intellectual property. 
 
 
JETER