RECOGNIZING INTELLECTUAL PROPERTY RIGHTS AS A FACET OF THE RIGHT TO PROPERTY IN AFRICA: A NECESSITY
Gesiye-emi Emiemokumo & Oziwo Brilliant
According to the renowned English Philosopher John Locke, all individuals are born with certain “inalienable” rights, among which are “life, liberty, and property”1. The right to property, being the exclusive right accorded individuals to use or exercise dominion over their resources as they see fit,2 occupies a foundational place as one of the driving forces of every society. Some of our most basic everyday engagements – education, business, career, and even religion – bear a connection to this right, to wit: We want to be equipped with means to acquire and own property. Private property in tangible resources is perhaps the oldest human institution and has long occupied a prominent position in law, with special protections. The question is, should intellectual property – rights in intangible resources – be given like protection as afforded land and other tangible resources?3 This essay seeks to answer this question and does so in the affirmative, providing justifiable reasons in support.
INTELLECTUAL PROPERTY IS RECOGNIZED AS PROPERTY
Consisting of two categories, Industrial Property and Copyright, Intellectual property refers to creations of the human mind comprising inventions; literary and artistic works; and symbols, names, and images used in commerce4. The law has long treated tangible assets like land and intellectual property within the general rubric of property. In the 1845 patent case, Davoll et al. v Brown, where the term “intellectual property” was first used by the courts, the court advocated its recognition as property, stating that it should be afforded like treatment and protection. In the words of Justice Charles Woodbury, “a liberal construction … given to a patent will encourage ingenuity and perseverance and that only in this way can we protect intellectual property, the labors of the mind, productions and interests, for they are as much a man’s own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears.”5
There can be a little question today that intellectual property assets are forms of property. The Nigerian Copyright Act, for instance, provides that copyright may be transferred by assignment, by testamentary disposition, or by operation of law as movable property6. It is important, however, to note that despite being clothed with the garment of property by the law, intellectual property rights are of a special nature, and the protections enjoyed by their holders last only for a limited period of time.
IS THE RECOGNITION A NECESSITY?
Granted that intellectual property protections are not infinite, it would be quite unfitting to make a case for the erosion of the recognition of the rights on the grounds that they constitute a mere luxury meant to confer needless benefits on their holders, whereas the contrary is the case – the recognition afforded intellectual property rights as a facet of proprietary rights, though limited, is a necessity.
There are, however, factions of society that strongly disagree, and it is important to understand why. A great deal of the disagreement arises from the view that Knowledge, Information, and Ideas are public goods. Hence the law must allow their extensive dissemination and improvement7; that the right to exclude carves out for holders of intellectual property rights periods in which only they can sell or license their products,8 thereby encouraging monopoly, which in the opinion of some is “unambiguously evil”9.
Oftentimes, because of the influence of and predominant access to information supporting the protection of intellectual property rights, whether on the news or in books and articles, the default instinct of the majority is to oppose. This is probably due to the fact that protection and enforcement of the rights are not very stringent, and we have really not given it much thought. Would your position be the same, especially in this part of the world, if you hear a great song on the radio today, and when you try to get it online, it is not free, and each site you visit demands a compulsory payment of $10 for the month? Or would it be the same if you are unable to transfer videos or pictures from friends because they are copy protected? Probably not. People may then view the protection of the rights as producing ‘unnecessary’ hardship.
Why then do we posit that the recognition afforded the rights is necessary? Perhaps, for clarity, it is imperative to point out that when a thing is not considered a necessity, then it is considered a luxury – a thing that is desirable and enjoyable but not essential; needless10. Can we truly say that the recognition and consequent protection afforded by intellectual property is not essential? That it is needless? Surely not.
Monopoly within the corridors of intellectual property may be ‘evil,’ but it is, without doubt, a necessary evil. It is, in the first place, critical to stress the need for one to always recall the rationale behind intellectual property rights; that they exist not just for their holders but primarily in the interest of and for the benefit of the public. These rights were essentially created by law to enable the originators of intellectual property to deservedly reap the benefits of the effort and resources spent in the creation of a commercially worthy idea,11 not forever but for a time, pending the granting of public access. The aim is to provide an incentive for innovation by allowing initial monopoly ultimately to secure a subsequent disclosure, so the creation can benefit society, spur economic growth, create new jobs and enhance the quality and enjoyment of life12. By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the holders of these special proprietary rights mutually benefit, and an incentive is created for inventors and authors not only to create but also to disclose their works13.
Essentially, balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods’ wide use is the primary focus of modern Intellectual Property law,14 societal benefits all the way central. Wherein then lies the luxury? The objective here could not possibly reflect necessity any clearer. The law obviously foresees that the absence of protection for intellectual property rights equals no active incentive for innovation, which then reduces the pace of development of new ideas, finally culminating in a reduced benefit for society. While this chain of events looks simple on paper, the reality of it is a completely different ball game.
Furthermore, from an economic perspective, the need for intellectual property protection cannot be overstressed. Statistically, African nations rank very low in the economic echelon of countries worldwide;15 hence, sustaining the viability of their industries is key. Protecting intellectual property rights is imperative. Even with the current protections, intellectual property infringements still pose a constant threat to the African economy. African countries lose billions annually from intellectual property violations, especially product counterfeiting and piracy.
Nigeria loses about 82 billion naira annually to piracy alone16. In South Africa, 18.5 million rands of counterfeit goods were confiscated in Gauteng alone between the 18th and 22nd of April 201917. The United States National Institutes for Health found in 2012, after analyzing data from 21 sub-Saharan African nations, that 35% of anti-malarial drugs failed chemical testing because they were poorly manufactured, while another 20% were complete fakes18. At its worst, counterfeiting of goods such as food and beverages, medicines, and even automobile parts could have lethal consequences. In 2008, an adulterated teething medicine caused the death of at least 80 babies in Nigeria19.
Moreover, the difficulty in sustaining the creative industries is brought to the fore, translating into the loss of jobs. The issue is readily visible in that not even the more developed societies are immune. In 2011, American Superconductor Corporation (AMSC), has partnered with a Chinese maker of wind turbine hardware called Sinovel, discovered that Sinovel had an illegal copy of the entire AMSC software code on one of their windmills. The resulting loss in profits saw AMSC lay off over 60% of its workforce, its stock market capitalization fell by half, and the company went into survival mode20.
Intellectual property violations see to the loss of significant revenues in taxes by the government, not to mention dragging the reputation of the countries involved to the mud, which consequently discourages manufacturers and producers of genuine products from setting up shops in those countries. Such a situation results in the loss of Foreign Direct Investment (FDI), as well as the attendant technology transfer and know-how that normally accompany FDIs21.
It is worth reiterating at this juncture that all of these take place in the face and in spite of the current recognition of proprietary intellectual rights. The point carefully sought to be made is that if these protections were completely non-existent on account of their being considered a mere luxury, there would be a host of undesirable end results. A whole sector would be lost, a whole system of livelihood. The things which dissenters believe should be made freely available would probably not even exist. There probably would be no Wizkid, no Nasty C, no Louis Vuitton, no Gucci, no iPhone, no Infinix, no Wole Soyinka, no Ngũgĩ wa Thiong’o. There would be no tax revenue for the government from intellectual property, no Foreign Direct Investment, no job creation on account of the absence of income-generating potential, and dominance of poor quality products, which may compromise the health and wellbeing of people.
Evidently, recognizing intellectual property rights as a fragment of the right to property is a necessity. The proprietary rights vested in creators of intellectual property exist for visibly good reason; they are not a needless privilege. We must adopt a farsighted approach and rather than undermine their importance. It is strongly recommended that we collectively and consistently strive to strengthen them, especially given the ease with which they can be violated in the current information age22. This can be achieved by improving enforcement procedures, strengthening local legislation and ratifying international intellectual property agreements, enacting laws against internet piracy fraud, tightening our international borders, adopting a collaboratory inter-agency approach with regulatory agencies and private sector players, expanding capacity building as it relates to intellectual property rights and increasing general public awareness23.
1 Locke, J. 1689. Two Treaties of Government in Powell, J. 1996. John Locke: Natural Rights to Life, Liberty, and Property. Retrieved on August 7, 2020, from https://fee.org/articles/john-locke-natural-rights-to-life-liberty-and-property/
2 Gerald, P., Hoskins, L. 2003. Property Rights: The Key to Economic Development. Retrieved on August 7, 2020 from https://www.libertarianism.org/publications/essays/property-rights-key-economic-development
3 Menell, P. S. Intellectual Property and the Property Rights Movement. Regulation, Vol. 30, No. 3, Fall 2007, p.37. UC Berkeley Public Law Research Paper No. 1000061. Retrieved on August 9, 2020 from https://papers.ssrn.com/so13/papers.cfm?abstract_id=1000061
4 WIPO Publication No. 450(E). ISBN 978-92-805-1555-0, p.2
5 Davoll et al. v Brown, 7 F. Cas. 197, 199 (C.C.D. Mass. 1845) (No. 3662)
6 Copyright Act, CAP C28, LFN 2004, Section 10
7 The Economist. 2005. The Liquidity of Innovation: How the new market for intellectual property is changing the technology industry. Retrieved on August 8, 2020 from https://www.economist.com/special-report/2005/10/22/the-liquidity-of-innovation
8 Carrier, M. A. 2004. Cabining Intellectual Property through a Property Paradigm. Duke Law Journal, 54(1): 44. Retrieved on August 11, 2020 from https://scholarship.law.duke.edu/dlj/vol54/iss1/1/
9 Easterbrook, F. H. 1990. Intellectual Property Is Still Property. Harvard Journal of Law and Public Policy, Vol. 13, p.108
10 A.S. Hornby. 2015. Oxford Advanced Learners Dictionary. 9th ed., Oxford University Press. 933
11 Boldrin, M., Levine, D. 2002. The Case Against Intellectual Property. American Economic Review, 92(2): 209-212, 209
12 Ҫela, M. 2013. An Overview on Intellectual Property Rights, Protections and Benefits. The Macrotheme Review, 2(3): 81-91
13 Lemley, Mark A. 2005. Property, Intellectual Property, and Free Riding. Texas Law Review, Vol. 83, p.1031. Retrieved on August 10, 2020 from https://papers.ssrn.com/so13/papers.cfm?abstract_id=582602
14 Goldstein, P., Reese, R. A. 2008. Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property (6th ed.). New York: Foundation Press. pp. 18-19 ISBN 978-1-59941-139-2
15 Lebert, T. 2015. Africa: A Continent of Wealth, A Continent of Poverty. Retrieved on August 11, 2020 from https://newint.org/blog/2015/06/24/africa-a-continent-of-wealth/
16 Nwogu, M. O. 2014. The Challenges of the Nigerian Copyright Commission (NCC) in the Fight Against Copyright Piracy in Nigeria. Global Journal of Politics and Law Research, 2(5): 22-34, 26
17 PricewaterhouseCoopers Limited. 2019. Impact of Intellectual Property Infringements on Businesses and The Nigerian Economy. Retrieved on August 7, 2020 from https://www.pwc.com/ng/en/publications/intellectual-property-infringement-and-the-nigerian-economy.html
18 National Institutes of Health News. 2012. NHL study shows poor quality malaria drugs pose threat. Retrieved on August 10, 2020 from http://www.nih.gov/news/health/may2012/fic-21.htm
19 FRN v Kola Gbadegesin Okunlola & Ors, Suit No. FHC/L/70C/09
20 Ferry, J. 2018. Ten Top Cases of Chinese IP Theft. Retrieved on August 8, 2020 from https://www.prosperousamerica.org/top_ten_cases_of_chinese_ip_theft
21 United States Congress. Joint Economic Committee. 2012. The Impact of Intellectual Property Theft on the Economy. Retrieved on August 11, 2020 from https://www.google.com/url?sa=t&source=web&rct=j&url=https://www.jec.senate.gov/public/_cache/files/aa0183d4-8ad9-488f-9e38-7150a3bb62be/intellectual-property-theft-and-the-economy.pdf&ved=2ahUKEwjZguvYj5TrAhXFzYUKHXvFAqIQFjAAegQIBRAC&usg=AOvVaw3H9JEq_IyeBeM1b_3wrwqC
22 Chattopadhyay, S. 2013. Intellectual Property Rights in Digital Environment. Retrieved on August 7, 2020 from https://www.researchgate.net/publication/320585766_Intellectual_Property_Rights_in_Digital_Environment
23 International Chamber of Commerce (ICC). 2015. Promoting and Protecting Intellectual Property in Nigeria. Retrieved on August 10, 2020 from https://iccwbo.org/publication/promoting-protecting-intellectual-property-nigeria/
ABOUT THE AUTHORS
Gesiye-emi Emiemokumo is a student of the Faculty of Law, Niger Delta University(NDU), with a keen interest in Commercial and Intellectual Property Law, and a member of the NDU IP Club. He is passionate about personal growth and development and is an Associate with the Student Personal Development Hub (SPDH), a non-profit organization in Nigeria focused on student capacity building and ensuring students’ access to information and opportunities that will position them for future career relevance. He enjoys mentoring and volunteering in his spare time.
Oziwo Brilliant, also a student of the Faculty of Law, Niger Delta University, is the Vice President of the NDU IP Club. As a strong personality with a desire to make an impact wherever he is, Brilliant is also the Vice President of the Editorial Committee at Diverse Law, a non-profit organization which operates to equip law students and young lawyers with practical skills to enable them function in today’s legal market; and greatly enjoys extra-curricular activities.