Proposed national priorities and position for Nigeria in the AfCFTA phase II negotiations on IPRs
By Desmond Oriakhogba and Chijioke Okorie
Background
Earlier this year, the Nigerian Office for Trade Negotiation (NOTN) published a call for memoranda and position paper on what should inform Nigeria’s national priorities and position in the AfCFTA phase II negotiation, which covers intellectual property rights (IPR) issues, among others. The NOTN is the agency with the mandate to lead, manage and coordinate Nigeria’s international trade and related negotiations. In response to the call, the authors, along with Prof Adebambo Adewopo, wrote a position paper, which was adapted and is now published online by the Law and Development Review.
The paper highlights and examines key policy considerations on IPRs, which includes patent, designs, copyright, trademarks and the broader but related areas of traditional knowledge (TK), traditional cultural expression (TCEs) and genetic resources (GRs). To do this, the paper drew from, and relied on, the guiding principles enshrined in article 5 of the AfCFTA agreement, the Max Planck Principles for Intellectual Property Provisions in Bilateral and Regional Agreements, the broad recommendations on IPR contained in the ARIA IX Report, and other literature on IPR and the AfCFTA, such as Ncube et al. The paper also sets out the existing landscape of Nigeria’s international IPR commitments and domestic regimes in order to appreciate the scope and possible limits to Nigeria’s priorities and position in the phase II negotiations.
In formulating the proposed national priorities and position for Nigeria, the paper first noted that the AfCFTA phase II negotiations offer Africa the chance to develop an IPR framework that is driven by Africans, in tune with the lived-realities in Africa, and one that promotes African collective interest and advances African economic growth and development ambitions, as set out in the AU’s Agenda 2063. It then argued that Nigeria’s national economic growth and development objectives align with the core aims of the AfCFTA, which is strongly linked with the continental aspirations expressed in the AU’s Agenda 2063; and that an African-focused and tailor-made IPR regime under the AfCFTA will play a major role in bringing the economic and development objects to life.
The following specific national negotiation priorities and position are proposed for Nigeria (pp25-27 of the paper):
Patents
The key focus should be on institutional capacity-building so that Nigeria can effectively take advantage of the relevant TRIPS flexibilities locally. Nigeria should actively champion the inclusion of provisions in the proposed IPR protocol that will enable and enhance institutional capacity-building for an effective national patent system. In doing so, however, Nigeria should avoid lending itself to the moves to grant more patents but rather tap into the world of open science, open data, and open innovation. Nigeria’s focus should be on kick-starting and strengthening her substantive examination system to ensure that patents are only granted to inventions that meet the highest standards of novelty, inventiveness, and industrial applicability. In addition, Nigeria’s negotiating priorities should also focus on sectors and issues of particular relevance to the Nigerian economy and national realities, including issues of pharmaceuticals and access to medicines as well as Nigeria’s emerging technology industry buzzing with growing tech hubs and innovation in health technology and telemedicine. In this connection, Nigeria’s priorities must align with other AfCFTA member states on increasing and improving access to medicines. This would require not just championing the inclusion of appropriate provisions in the proposed IPR protocol that does not shrink the policy space provided by the TRIPS Agreement, but also the adoption of TRIPS flexibilities with better clarity and certainty from the lessons learnt from TRIPS experience over the years.
Designs
Although post-grant validity challenges should be encouraged as avenues for the quality of registered designs to be tested judicially, it is imperative that Nigeria priorities should be improving its pre-grant designs examination systems. To this end, it is important for Nigeria to adopt as one of her negotiating priorities the formulation of design regimes that includes a pre-grant examination system for the sake of its textile and fashion industry for the inclusion in the proposed IPR protocol.
Trademark
Access to regional and international markets especially for small and medium scale producers, especially those focusing on TK-based, agro-based and ICT-based products and whose trades are communal in nature, remains a key challenge in Nigeria. To confront this challenge, Nigeria’s priorities should be championing and supporting the inclusion of provisions in the proposed IPR protocol that allows the development of communal trademark protection mechanisms such as collective marks, certification marks, and Geographical Indications (GIs) locally. Communal trademark protection strategies combine trademark-like protection with recognition of the collaborative nature of production in Nigeria.
Copyright
It is important for Nigeria to prioritise negotiations in recognition of her strongest economic assets. In this regard, Nigeria’s creative industry (particularly, its music and film sectors) leads the way as it contributes significantly to the growth and development of Nigeria’s economy. In view of this, it may be tempting to take an overzealous approach to copyright protection in the AfCFTA IPR Protocol. Such an overzealous approach would involve focusing (almost) solely on the exclusive rights of authors and copyright owners without appropriate advertence to the rights and interests of users and future creators of copyright-protected works including protection of SMEs which largely constitute the informal economy. Such overzealous approach has strong tendencies to undermine the efforts of SMEs constituting an informal economy within the copyright commercial landscape in Nigeria. Also, it must be acknowledged that Nigeria’s developmental advancement calls for prioritising citizens’ access to research and educational materials, especially for persons leaving with different forms of disabilities. An overzealous protection of copyright can create severe access barriers to the dissemination of research, cultural and educational materials; and stifle new and collaborative modes of creativity, such as Open Education, Open Science and Open Data, that hold great promise for development and growth; and hamper the development and deployment of technological assistive devices for the education and research endeavours of persons living with disabilities, and contravenes Nigeria's treaty commitments and domestic legislative ventures in this regard. Finally, Nigeria’s key considerations when tackling the issue of copyright protection in the AfCFTA IPR Protocol should also prioritise support for guiding principles that would encourage multi-territorial digital copyright licensing.
TK, GR and TCE
The absence of a legal framework for benefit sharing and the general protection of TK and GR in Nigeria continues to enable the theft (biopiracy) and wrongful use of GR and TK in Nigeria. Although Nigeria has ratified the CBD and signed the Nagoya protocol on access and benefit sharing, no steps have been taken to domesticate these important treaties. In this connection, there is some lesson to learn from the Swakopmund protocol, as well as the AU model law for protection of the rights of local communities, farmers, breeders and for the regulation of access to biological resources; guidelines for the coordinated implementation of the Nagoya Protocol in Africa and from the existing African and regional and sub-regional guidelines. Also, the unabated digitization of stolen Nigerian artefacts by major international museums without due compensation of the local communities from where the artefacts originate is a key source for concern. The AfCFTA phase II negotiations on IPR affords Africa the opportunity to formulate effective protocols, with appropriate policy space for the development of local mechanisms, for the protection of TK, GR, and TCE in Africa, within the context of trade. Nigeria's priorities, in this regard, should be to champion and support such endeavours that will sufficiently cater to the interest of local communities in Nigeria.