What do Intellectual Property Laws say about my creative content on social media?
There must be some limit to the intellectual property violations perpetuated by our very own Alaba boys, right? Apparently not, as Alaba boys strike again! And this time, their victims are said to be Comedy Skit Creators. There have been reports that a couple of people are collating Comedy Skits from Social Media Platforms and selling them as CDs. Just create a mental picture of a 20-in-1 Sinzu vs. Spending skit. Clearly, no one is safe from these ridiculous infractions. But what can you do to protect yourself as a creative? Well, there is one thing: KNOW YOUR RIGHTS. And we are glad to help to help you with that.
Probably the most important subject you need to about this type of creative content on social media is ‘copyright’. So what is a copyright?
A copyright is a legal right granted by a copyright law (The Copyright Act, in Nigeria) that vests in the creator of an original work exclusive right to its use and distribution for a limited time. According to Section 1(1) of the Copyright Act, works eligible for copyright in Nigeria include: Literary works, Musical works, Artistic works, Cinematographic films, Sound recordings and Broadcasts. Note that even these works would only be protected under copyright in Nigeria if: sufficient effort is expended on the work to give it an original character and the work is fixed in a definite medium of expression. In short, copyright would not protect an idea you did not express, neither would it protect a work that is majorly outsourced from somewhere without substantial original contribution.
In addition, the rights copyright confers on authors vary in Nigeria depending on the type of work, howbeit, some rights overlap. In the case of cinematograph films, the category to which comedy skits belong, the author has the exclusive right to (or authorise someone to) make a copy of the film, cause the film to be seen in public, commercially distribute copies of the film to the public and use any part of the film’s soundtrack in another recording. These are referred to as economic rights. There are also moral rights which includes the right of the creator to be named alongside their work anywhere it is used.
Looking at these rights, it is clear that Alaba-boysgeng are doing the most in terms of copyright infringement; let us not also forget our online Alaba boys, the youtube-funnyvideos-compilation-geng. As an author, if you are in a bad mood, you can decide to vent the bad energy by going after your copyright infringers. You could initiate a suit against them at a Federal High Court, where if your claim is found valid, you would be entitled to relief in forms of damages, injunction, and accounts.
Finally, you probably should not concern yourself with the expiration of your copyright protection; it is not going to happen during your lifetime. Actually, it will happen 70 years after you are dead in the case of literary, artistic and musical works and 50 years for cinematograph films, photographs, sound recordings and broadcasts. So, just know that the random Iya Tao video on Instagram or Youtube is already protected by copyright. While individuals are free to share across platforms, any form of action on those skits that creates economic benefit for anyone asides the creator or someone granted express authority (license) by the creator is copyright infringement.
You want to know if Intellectual Property protects your messages on WhatsApp? We know you do. See you in the next post.
IDEA CONTEST WINNING ESSAY: LEVERAGING ON INNOVATIVE TRADEMARKS TO RAISE AWARENESS FOR A GREEN FUTURE
As we embark on a new decade, the impact of climate change is felt across the globe. The cases of extreme climate events are on the increase. Addressing the global climate crisis is a modern-day imperative and each of us is conferred with the responsibility to address it to build a green future. A meticulous attempt will be directed towards how society leverages innovative trademarks to raise awareness for a green future.
For the sake of clarity, definitions will be provided to the following terms; Trademark and Green Future. A trademark is a sign that individualizes the products of a given enterprise and distinguishes them from the products of its competitor while the Green Future is a global initiative directed towards achieving the use of resources from nature more sustainably and efficiently.
Innovations are important to proffer solutions towards attaining a green future, an IP (Intellectual Property) system such as the trademark can be capitalized upon to proffer solutions to help raise awareness about the product and services that could help create sustainable alternatives to our existing pollutive way of life.
One of the ways by which innovative trademarks are being leveraged upon is through the use of Green labeling. Also known as Ecolabelling, it is a recognized scheme for companies to make transparent environmental declarations about their products and services. It has been used to promote statements regarding the environmental characteristics of a product, names connoting environmental benefits, and certification of environmentally benign services such as Green seal Inc. and Green Cross Certification Co. Innovative trademarks can be used to define the market for green labels. By providing a distinctive identity for the product or service, this creates awareness about the environmental performance of products and services from a life-cycle perspective which in turn contributes to the attainment of the green future.
Equally useful to raise awareness, is the use of Collective and Certificate marks by members of a green future association. This will distinguish the goods or services of members from those of other undertakings and label products with warnings disclosing the environmental harmfulness of products. Partnerships such as the United Utilities Sustainable Catchment Management Programme whose goal is to contribute to the future iteration of sustainability can partner to acquire such rights.
Lastly, is the licensing of an innovative trademark to developed enterprises to generate investment. Trademarks can appreciate over time. The more your business repute grows, the more valuable your brand will be. Trademarks through licensing can serve to expand a product reach across countries, while simultaneously promoting the green initiative.
In conclusion, the UN Climate Change conference of 2019 predicted that a quarter of the world’s population is at risk of water supply problems, growth of oxygen-poor oceans, die-off of vegetations, and a host of other negative responses. There is no time to waste! Technological innovation is vital to maintaining our standard of living . No better time to start protecting and making good choices than now , because as some anonymous author once said “Mother nature selflessly provides all our needs, it’s time we start to care for her’’
Omotunde Masha (Winner, IPTLCUI World IP Day Idea Contest)
It’s been so long the world watched a live football match from the top European Leagues so much that people don’t sound like themselves anymore. Who would have thought that “abstinence” from football can give withdrawal symptoms? If you don’t mind, let us bring back some football vibes – that’s all we are left with too.
Football is a powerful game and we quite agree. It’s the biggest sport in the world; a four billion fan base is no joke, you know. And if you ask any true football fan, this game is currently ruled by two men, who for several years have sparked debates as to who the true king is. You guessed right, Messi v Ronaldo (you can tell us your GOAT in the comment section).
At this point, we will discuss some points at which football and IP intersect, while comparing these two on those points, with the aim of helping to discern who is truly the G.O.A.TIP-wise. You ready? Then let’s kick-off this match-up, with a little IP concept called Image Rights
WHAT ARE IMAGE RIGHTS?
Image rights refers to the rights of certain bodies or organizations, to use the elements which come to constitute the likeness of a particular person for commercial purposes. That is, it is the right to use a player’s image, voice, catchphrase, and other things associated with that player’s likeness, for commercial gain. This is often done through endorsement, or sponsorship contracts. Image rights represent in this modern age of football, a huge source of income, especially for top footballers, as various companies will be looking to exploit the fan base of people like Ronaldo and Messi, to market their products.
VERSUS: when it comes to number of companies tapping into his image rights, Lionel Messi is currently said to have about 9 brands on his back, with a notable lifetime contract with Adidas, and other sponsorship deals with brands like Pepsi, Gatorade, MasterCard, and so on. However, in this round, the clear winner with a knock-out is Cristiano Ronaldo, with a shocking number of 31 endorsement deals, with a number of companies like Tag Heuer, Armani, his own life contract with Nike, Dolce and Gabbana e.t.c. This makes Ronaldo the most marketable football player on the planet.
TYPES OF IMAGE RIGHTS
Image rights as it relates to footballers comes in two forms. The first, Personal or Individual capacity; in which contracts are made with a player in his individual capacity alone. Hence, any representations by an endorsing company made will not incorporate the elements of his club or team in their marketing. Second is Club capacity; where contracts and advertisements made will be made through the player’s club and will involve the club’s identity in it, e.g Chivita CO’s advert involving Paul Pogba, Juan Mata and De Gea, all players of Manchester United.
VERSUS: Sometimes, there can be clashes in the negotiation between the two different forms. For instance, Cristiano Ronaldo holds a lifetime agreement with Nike, however, both his former and present clubs, that is Real Madrid and Juventus, are both sponsored by Adidas. Lionel Messi on the other hand, also holds a lifetime contract with Adidas, but his club Barcelona, has been sponsored by Nike for the past 20 years. Such arrangements are potentially harmful to the clubs considering that their respective sponsors are competitors.
HOW ARE THEY STRUCTURED
Image rights could be declared ordinarily as part of a player’s earnings. However, they will be taxed at a normal rate along with the rest of the person’s income, and in case you didn’t know, the tax rate for millionaire footballers is quite high; a whooping 45%. So what do players do to escape this tax encumbrance? They enter deals with IRCs. IRCs or Image Right Companies are companies created by footballers to which their rights are transferred to. The company takes ownership of the player’s rights, and exploit it commercially on his behalf. The result; the company which now holds the rights is taxed instead of the player, and they are taxed just corporation tax; at a mere 19%.
VERUS: In 2015, Cristiano Ronaldo sold his image rights to Singaporean billionaire, Peter Lim, who owns Mint Media to serve as an IRC for him. However, this author has found no evidence of Lionel Messi setting up an IRC for himself. Hence, this round awards points to Ronaldo for going a step further in protecting his IP.
While for footballers, IRCs represent a nice way to convert their earnings to dividends which are taxed at a lower rate, for others, especially the authorities, they simply represent a lacuna in the law which allow evasion of tax. However, problems arise, when players don’t even declare their income at all
VERSUS: Lionel Messi has, rather disappointingly been convicted twice for tax fraud. In 2016, he was convicted of tax fraud and sentenced to a 21 month imprisonment term, after discovering his evasion of over €4 million in tax. Ronaldo on his own end is no saint, as he had to pay a €19 million settlement fine to the Spain Finance ministry, after being found guilty of evading over €14.7 million in tax on Image Rights earnings. There will be no winners in this round, as this author will not award points to law breakers.
Footballers are very popular people. As such, a lot of products are sold in their name, and they might seek to protect their brand, hence the importance of getting their brand trademarked.
VERSUS: When it comes to Trademark protection, Cristiano Ronaldo doesn’t seem to be doing too badly, with 47 registered marks globally (for marks using his name or the phrase CR7). However, the winner of this round without much argument, goes to Messi, who leads the game with 76 active registrations, for registrations using his name, logo, signature, and stunningly, he holds a trademark for his son.
The final whistle has been blown, and the results are in. When it comes to Trademark protection, Lionel Messi leads every player in the world, and making over 27 million Euros annually from his endorsements is not bad. Ronaldo on the other hand, may not be the leading trademark protecting player, but when it comes to the worth of his Image Rights, makes over 47 million Euros, almost double that of Messi, plus he has an Image Right Company. And so the winner is;….. completely up to you of course. It would perhaps amount to injustice for this author, to project one player as better than another, when both of them have an IP game almost as spectacular as their game on the pitch.
In a multi-cultural society like Nigeria, and in fact, given the effects of globalization and the spread of pop culture, fashion has amassed a considerable level of interest among individuals. Fashion is a form of art which is expressed in clothing, accessories, hairstyle, footwear and cosmetics. The high level of creativity and sophistication invested into these art forms reasonably necessitates some form of protection. A balance has to be made between fashion law, in its strict sense and Intellectual property of fashion. While fashion law may be as broad as encompassing tax, employment, consumer protection and safety issues, Intellectual property does not delve in that far. Does fashion law encapsulate IP or are they distinct? Quite recently, Annie Oti joined us at the Intellectual Property and Technology Law Club to discuss this.
Bio of Speaker
Annie Oti is a budding fashion lawyer and entrepreneur. She graduated from Obafemi Awolowo University in 2018. She is the founder and CEO of the Africa Fashion law, a platform solely dedicated in establishing a connection between fashion and law. She was once the creative director and CEO of House of Annie Oti, a business that thrived well under her administration. She also once volunteered at the prestigious event, Fashion Finest Africa, theatre of Fashion in 2018. Her vast experience and vivid interest in fashion law makes her a force to be reckoned with in fashion law.
Transcript of Webinar
Fashion law, also known as apparel law, is an emerging legal specialty that encompasses issues surrounding the life of a garment from conception to brand protection. Fashion law clients include designers, fashion houses, distributors, manufacturers, modeling agencies, retailers, and photographers.
Fashion lawyers perform a broad range of duties from drafting and negotiating contracts to addressing and litigating trademark, copyright, and other intellectual property issues. They’re in charge of forming and dissolving business entities and advising on branding development and protection.
The focus is on Fashion Law and Intellectual Property Law. The law in Nigeria is quite limited when it comes to protecting the creativity of designs in the Nigerian Fashion Industry plus a lot of creatives undermine the value of Intellectual property when it comes to their businesses.
Ignoring the fact that all businesses need to be strategic in order to guarantee longevity and sustainability, engaging legal representation will improve a business owner’s ability to understand different legal and business issues. Fashion is a global business and IP rights extend into the international trading system through various international treaties.
It is vital for fashion enterprises to obtain sound legal advice at an early stage in order to appropriately protect their creativity through IP rights, and be able to realize their commercial potential. The first hurdle in protecting fashion designs in Nigeria is not a simple task. In protecting a design, Intellectual property law comes in.
The areas of IP which caters for the creativity in the fashion industry are:
Copyright and Design Laws
Copyright protection is typically sought to protect the two-dimensional aspects of clothing design, while design law may protect the three-dimensional design and shape of the piece. However, under both Nigeria’s copyright and design laws, designers have encountered significant difficulty protecting their works.
Section 1(3) of Nigeria’s Copyright Act states: “An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.” As a result, protection under the Nigerian Copyright Act is not available where a designer intends to mass produce his or her garments.
Alternatively, Nigerian designers may seek protection by obtaining a design patent, which permits mass production, but is also difficult to secure. Designers who choose this route are often impeded by the lengthy processing time required to obtain the patent, the fees associated with the application and registration process, and the burden to prove that their designs are entirely “new,” varying significantly from each prior design in every country across the world. Each of these obstacles, particularly the last, may preclude protection under Nigeria’s Patents and Design Act: “Any anticipation of the design anywhere in the world, by any means whatsoever before the date of the application for registration of the relevant priority date destroys novelty.”
This high standard for proving novelty is often difficult to meet, especially for designers known for their particular aesthetic, as displayed in their prior works, and because fashion designs are often derivative of prior designs.
With regards to questions as to protecting fashion designs through copyright, it depends on what is meant by “fashion designs.” A fashion design could connote a number of things. It could mean sketches. It could mean a signature color, like Louboutin’s famous red-bottoms. It could mean the way fabric and other design elements are cut and pieced together. It could mean the graphic designs that appear on clothing. It could mean a design imprinted into fabric.
So if Copyright isn’t effective, what aspect of Intellectual Property Law can be effective in protecting fashion designs?
A trademark can add great value whether for a small Scale fashion outlets or a global fashion house. They all value the brand equity they have built over the years through customer loyalty. These organisations develop st rong affinity with their customers through their brand names which are protected through registration as trademarks.
A trademark is a representative of the qualities (both tangible and intangible), values, and attributes that a designer infuses into its products. Trademarks are really most valuable for well-known, recognizable brands and can be an effective means of protecting creativity in the fashion industry.
Research has shown that despite the numerous benefits of trademarking and branding, over 80% of Small and Medium Scale Enterprises (SMEs) still fail to register their trademark. By failing to register their brands, these businesses are not only damaging their brands and reputation, they also put their business at great risk.
Trademarks can take many forms but are indicators to consumers that a certain product originates from a specific source. Brand names and slogans are typical trademarks.
There are a number of advantages associated with registering a trademark in respect of a fashion brand or business, including:
1. Registered trademarks allow you to easily differentiate your products from competitors, through use of the ™ or ® symbol. This is particularly beneficial in the highly competitive fashion industry, which is centred on brand names and product recognition.
2. A holder of a registered trademark has the right to sell their trademark or licence its use to others.
3. Registered trademarks are a solid legal basis on which to prevent others from imitating your brand. This is advisable, as imitators have the potential to damage reputation and diminish sales.
The application of Intellectual Property Law is very important in the fashion industry and in every business. If the intellectual property is not protected, the owners risk losing:
• Branding Establishing a strong brand is pivotal to business success. Protecting that brand (through trademark) is equally important. The name of your company and its logo are part of the branding that sets your business apart. Elements of your brand, from your company name to your logo can be subsumed and eroded. This can damage perceptions in the market of your quality, products, and reputation.
• Products Unique investments that have been made in developing designs may be compromised; only through proper protection through design laws etc. can one ensure that control and market the products developed.
•Ideas and thought leadership Protecting original contributions to the thinking around an industry can be an important step to establishing the company as a market leader.
As such, there is no doubt that, in a business, intellectual property is everywhere. Protecting your intellectual property rights is protecting your business, so you must claim your intellectual property rights before it’s too late.
Thank you all so much for the opportunity.
Q & A Session
Please can you explain the concept of patent and novelty?
In the context above, design patents are what we know as industrial designs and for an industrial design to be registered, a major feature is that it is new.
What are the deficiencies of the current legal framework for the protection of fashion designs with particular reference to Nigeria?
There are a lot of issues related to the legal frame work, first of, the Nigerian Fashion industry lacks an adequate structure, which a number of organisations are currently working on another issue is related to our laws, they need to be reviewed especially the Trademark Act.
The deficiencies are quite numerous and I won’t be able to highlight everything in the next 1hour
You know that thing that we do, taking pictures of designs and giving it to our tailors to sew. I want to know if it’s an infringement of an IP right
First off, we need to consider the features of trademark, industrial design laws. What makes a product/design protectable?
In 2019, Deola Saoge put out a notice before releasing her collection, protecting her designs. Once protected, taking it to a tailor to sew a copy of the design, which would most likely be impossible because of the unique nature of the product, would result to an infringement. So when a design has been put out in the public domain without protection, the protection available to such design will be limited
Are there law firms in Nigeria with strong Fashion law department?
There are law firms in Nigeria with strong entertainment law departments and these departments cater for fashion law related issues e there law firms in Nigeria with strong Fashion law department? There are law firms in Nigeria with strong entertainment law departments and these departments cater for fashion law related issues
Extended reality is an advanced technological development which was introduced by Paul Milgram. The basic concept of this technology is to enable people to experience the physical and virtual environment through immersion rather than observation. That is, through technology people are immersed into a world which they are in actual fact absent from. Extended reality technology is quite advanced and is gaining grounds in aspects such as real estate, entertainment, marketing, etc. This technology brings to life the reality of the whole world being one small whole and through the power of digital technology, there is the possibility of meeting up with appointments around the world from the comfort of your home.
In the light of modern day reality, and at such a time as this when almost the whole world is on an automatic shut down due to the Corona virus pandemic, it would be impossible for one took away from the goodness of extended reality technology. While its inculcation may prove to be a strain on the budget of any nation (Nigeria especially), the benefits and interests definitely outweigh whatever cost may be incurred.
Let’s take our educational system for example; one thing is it’s a great medium for all students who get to sit at home to still get the feel of school and be immersed in just the right environment for learning from the comfort of home. Imagine being connected with all your buddies from school and learning like all is fine with the world around you, with no fear whatsoever that the person right next to you may sneeze the next moment. Now that’s something the government of any nation ought to give a thought to; immersed class sessions!
Moving on, though the global market for extended reality technology is still in its infant stage, ER technology is like the future on your finger tips. Teleporting and transacting around the world from the comfort of your home. This technology development holds a promising future for businesses most especially real estate, as a prospective buyer need not be present to examine property but can do so with ease and from the comfort of wherever they are around the world. Though the initial implementation costs may be huge, its foreseeable benefits are tremendous and it very well yields faster and timely productivity.
In conclusion, extended reality technology promises the world a future where all can truly be one; fit together in a tiny globe of technology; and at such times as we are in, it would not hurt for top world investors to give it a trial.
Could a trademark ever become too big for its own good? Yes. Well that depends largely on the territory of the trademark (trademarks are territorial rights). So a trademark in Nigeria could probably never become too big for it’s own good but in the United States and Europe, yeah, that’s a thing. Is it a good thing? I think it is and I’ll try to explain why I think it’s a good thing shortly.
Before I go into what it means for a trademark to become ‘too big’ in my opinion, I will explain what it means for a trademark to be big. And what is it for a trademark to be big? There is such a thing as well-known trademarks in the IP space, and well-known trademarks enjoy a lot of benefits over other not-so-well-known trademarks. One of the benefits well-known trademarks have is that, in some countries, even when a certain mark is not registered but it has gained enough reputation i.e is well known, such mark is still protected. Another major benefit for well-known marks is that Article 6bis of the Paris Convention basically states that no member state of the convention should refuse to register a mark which is already well-known in another member state. Remember the Tesla story in 2014? No? Okay. Basically, Tesla was about to introduce its products in the Chinese market but first, they needed to register their TESLA mark but they then found out that someone else had registered the mark, without use, in 2006 which was three years after Tesla first registered in the United States. Eventually, using Article 6bis, the United States was able to get China to invalidate the registration. So yeah, when you’re big, you’re big.
So what then is too big? Section 14(3) of the Lanham Act of the United States provides that a mark can be cancelled at any time such mark becomes the “generic name for the goods or services, or a portion thereof, for which it is registered”. What does being generic mean in respect to a registered mark? Elliott v. Google where the plaintiff filed to have the defendants trademark, Google, cancelled because according to them, it was common knowledge that the act of internet searching was now often referred to as ‘Googling’. Which is quite true because I’m pretty sure that everyone reading this has once said or hear someone say “Let me google this”, or “I’m going to google that”. This is of course because Google is undoubtedly the most popular internet search engine all around the world (except maybe in China?). So is Section 14 of the Lanham Act trying to say “Okay, you can have your trademark but make sure you don’t get too popular”? No. Not at all.
In the same case of Elliott v. Google, the Appeal Court, ruling in favour of Google, held that using the word ‘google’ as a verb to mean to search the internet does not automatically constitute generic use. Also, a claim of must be made in relation to a particular good or service. Moreover, when Congress amended the Lanham Act it explained that, “A trademark can serve a dual function—that of [naming] a product while at the same time indicating its source. Admittedly, if a product is unique, it is more likely that the trademark adopted and used to identify that product will be used as if it were the identifying name of that product. But this is not conclusive of whether the mark is generic.” What all of this basically means is that a verb use of the mark does not make it generic and until the act of using other search engines, other than Google, to search the internet is referred to as googling or other search engines begin to refer to themselves as googles, the mark is not generic. And you may think that is impossible but it has, as a matter of fact happened before to THERMOS, ASPIRIN and CELLOPHANE.
Back to Nigeria, according to the Trademark Act of 1960 (why we still apply laws from 1960 to regulate trademarks in 2020 is a question for another day), a mark can only be invalidated if it was registered on grounds of fraud or where such trademark is deceptive, scandalous, contrary to law or public morality. Why do I think our trademark laws need to be amended and should include a provision that a mark can be invalidated when it becomes generic? That’s pretty simple as I think it’s the same reason the whole concept of genericness is a good thing. A trademark should be distinctive and not descriptive. When a mark, any mark grows beyond that and gets to a point where it is used to refer to other products, which should ordinarily have their own marks, that mark is no longer distinctive.
In a Nigeria where such provision was in our trademark laws, we might have seen suits to challenge the validity of marks such as Close-Up, or NEPA – if it was a mark. And although I do not know, as a matter of fact, if these challenges would be successful or not, I know that they will be good for the health of our trademark laws and put it in a Tyson Fury shape as opposed to the Wilder shape -after his fight with Fury- it currently is in (this reference is based on their second fight only).
You thought 4G was fast, well, 5G is mind-blowingly faster and more speed means, it will burn your data. The transition from 4G to 5G this time is not just about small difference in internet speed, 5G is going to impact everything, changing the world as we know it and of course, IP is not exempted.
5G refers to the 5th Generation of cellular network technology. It explores a frequency spectrum higher than what has been used by previous generations and this gives it much better internet speed making it at least twenty times faster than the previous generation, 4G. Speed tests done at MTN’s 5G Demo Launch in Abuja show that a 2GB movie that would have taken 5 minutes to download on 4G, would be downloaded under 19 seconds using 5G and as for streaming, well, 5G might just be the end of video buffering. 5G also gives much lower latency rates, latency rate is the amount of delay between sending and receiving information. Human reaction time is about 200 to 300 milliseconds, 4G takes about 100 to 200 milliseconds to respond and 5G, does it in a millisecond, 400 times faster than the blink of an eye.
Asides watching and downloading movies, how will these mind blowing speeds affect our world? With such low latency rates, autonomous driving will fast become a reality; self-driving cars will respond to information around them and send information to other cars and objects around them faster than it would have taken a human to respond. With such reduction in time delay, remote interactions can be done in almost real-time, this means that online virtual reality simulations involving different people at different locations will be much more accurate. Also, remote surgery (which involves a specialist doctor performing a surgery on a patient from a different location) would now be possible and actually effective. 5G will enable more devices to be connected to the network and enable them to communicate and share data with each other – an internet of things. 5G is bound to bring new technological innovations to every sector of life. And then, there’s Intellectual Property.
To start with, it is common knowledge that behind every big technological innovation, there is or most times, there are a mass of patents trailing behind. 5G is a big technological innovation and of course behind it is a long trail of patents. According to IPlytics, the patent race for the 5G innovations have been on since 2012 and presently, big tech companies like Huawei, Samsung and Qualcomm lead the race for more intellectual property rights on this money train.
One thing that can be agreed on is that 5G is going to take the world to the next level of digital technology. When the Internet was first developed and became widely used, there was a need for intellectual property policies and practices to be developed to meet the new issues that came with the arrival of the internet. So also, with the rise of new technologies with 5G, there is a need for adaptable intellectual property policies and practices, to be able to answer the questions that come with the new innovation. For instance, as 5G speeds up the use and creation of the ‘Internet of things’, as defined earlier, questions like who would have ownership rights to the data stored and shared on and by these devices are bound to arise and new policies or new interpretations for existing policies have to be made to meet this new demand.
A new age of wireless technology also paves way for a multitude of new technological innovations. One of the goals of Intellectual Property Rights protection is to promote innovation and ensure innovators reap the rewards from their creations. As 5G brings new innovations, it also brings business on intellectual property rights protection in form of licensing, consultation, dispute resolution etc. The arrival of 5G will bring a new set of licensing disputes and intellectual property conflicts both on the use and development of the 5G technology itself and on new innovations that rise from its use.
5G generally underscores the use of the digital space and has a much larger network capacity than previous generations, this means that with the development of the 5G network, a lot more interactions would be done online and much larger mass of data would be saved and transmitted on the internet. This creates a potential risk because hackers with malicious intent would be looking to tamper with or steal some of this information stored or transmitted on the network, this means that effective digital security systems have to be developed to prevent data theft. This fear of data theft is what caused the United States and other countries to prevent the tech giant, Huawei from developing their 5G network, and truly in the past, there have been multiple cases of China-based companies being accused of Intellectual property theft like stealing trade secrets causing large corporations to crash.
Intellectual Property is key to development and though the 5G network is set to make innovation thrive, it also creates a risk of innovations being stolen in 5G speed. 5G is still on its way and there are still many hurdles to surmount before it becomes a reality. Though the blazing internet speeds might not be good for your data cap, with the rise in innovation 5G brings, IP might just have struck oil.
About the Author
Samuel Oluwasegun is a 200 level law student with avid interest in Intellectual Property law as well as Fintech law. He is interested in the use of Law and Technology to impact society. He can be reached on Twitter – (@I_am_Shegun) and Linkedin: https://www.linkedin.com/in/oluwasegun-samuel-a784b8179
Nowadays, every item seems to be getting a smart counterpart (many perhaps not worthy of the tag). We now have smartphones, smart watches, smart lighting, smart fridges, smart TVs and now we even have houses that are called smart homes. Against this backdrop, it should come as no surprise to anyone that we also have smart contracts. In actual fact, the concept of smart contracts is not particularly new, albeit, with a relatively recent implementation. The concept was first developed in 1994 by Nick Szabo, a cryptographer. Szabo came up with the idea of recording contracts in the form of computer codes which would be self-executing, thereby dispersing with the need for trusted intermediaries. Of course, the idea could not be implemented at that time because there was no Blockchain Technology, neither was there an alternative system of making irreversible transactions on the internet. Thus, the first implementation of smart contracts came with the development of Bitcoin in 2009, which not-so-incidentally was also the first meaningful application of Blockchain Technology. So just what exactly are smart contracts?
Smart contracts are self-executing contracts with the terms of agreements between parties being directly written into lines of code. The code and the agreements contained therein exist across a distributed decentralized blockchain network. The implication of a smart contract being based on the blockchain is that it is stored on a public database and cannot therefore be changed. Evidently, two distinctive qualities prove themselves indispensable to any discourse about smart contracts: its self-executing quality and its irreversibility; the former forms the core distinction of smart contracts from their traditional counterparts. Smart contracts are self-executing because they work on an If-Then premise, that is, certain terms are set, stating certain conditions or events that must occur to trigger execution, upon such occurrence the contract is executed (mostly a transfer of value) and is thus settled. This way, parties are not dependent on one another for fulfillment of obligations, neither are they dependent on any ‘trusted’ intermediary to secure execution. This is particularly useful in that, parties unknown to each other can easily enter into a contract without anxiety, since the trust needed in the contract is invested in the system rather than in each other.
It is important to state that while smart contracts are indeed based on the basics of a traditional contract, it would be grossly misleading to view them completely in the same light. The two types of contracts differ with respect to execution as already explained above. Also, a valid traditional contract is deemed a legal agreement, on the other hand, the codes in a smart contract embodying the terms of the agreement are not automatically endowed with such recognition, although this might be possible under certain circumstances. In order for smart contracts to be accorded considerable legal recognition, many techno-legal questions still have to be resolved.
One fact remains quite clear, smart contracts do have several benefits which are only possible as a result of the separate position it occupies from traditional contracts:
First, smart contracts afford parties a considerable degree of transparency as the terms and conditions with respect to an agreement are laid out bare in absolute detail, to be thoroughly checked by parties before agreeing to them. Furthermore, the lack of intermediaries in smart contracts ensures that efficiency is not lost due to communication gaps. Also, Smart contracts, as a result of their online nature, can be completed at incredible speeds, thereby saving precious time. With this speed comes a new dimension to contract-making in various fast-paced industries as well as bringing about a convenience that a traditional contractual process would struggle to attain. Smart contracts, when implemented correctly, have been said to be able to provide a greater degree of contractual security. In addition, with smart contracts, every agreement, every process, task and payment can have a digital record and signature that could be identified, validated, stored and shared; thereby, making for a better data storage.
The possibilities made foreseeable by the advent of smart contracts are so wide that they cannot be comprehensively exhausted in this article, however, in order not to create a misleading utopian image of smart contracts, it is necessary to shed light on some of its limitations:
The premise upon which the usefulness and potentials of smart contracts seem to be based, is that it is minimally plagued with problems. While this might be true (to an extent) in the present major use of smart contracts, that is, crypto currency; it is hard to imagine that this level of smoothness would continue to be maintained as the use of smart contracts breaks into other industries as has been projected. Smart contracts, not being very much endowed with legal recognition, do not have a dispute resolution structure comparable to their traditional counterparts. Thus, the efficiency of smart contracts largely rest on the lack of disputes, that is, an ideal setting, which of a fact would not be the case 100% of the time. In fact, it is not difficult to imagine some problems that would make situations very much unideal, for instance: some smart contracts are completely written in lines of code, one of the parties to the contract might not be well versed in interpreting the code and might end up entering into an agreement substantially different from what he intends, what would be the remedy in such a case? There could also be a misrepresentation of goods and since smart contracts can be completed online, what would be the remedy for the buyer in such an executed contract? Also, who would be held responsible for coding errors which render a smart contract utterly different from what is intended? What about the issue of jurisdiction in smart contracts completed between multiple nationals? All these are questions that come up and without a doubt, there are more. An examination of the development of contract laws in various countries reveal complexities that make contracts much more than simply parties, agreements and terms. It is therefore obvious that smart contracts are far from perfect as they do not yet have a satisfactory response to these possible (and in fact expected) complexities.
Indeed, smart contracts have quite the bag of potentials, however, it remains important that we do not get ahead of ourselves. In this vein, there is a need for the creation of some requisite framework that takes into account the peculiarities of smart contracts, as this is the only way through which the idea of smart contracts can be reasonably enjoyed without the positives being outweighed by the negatives.
Fabarebo Victor is a 300 level law student at the University of Ibadan. He takes interest in technological innovations and loves learning about multiple perspectives to issues.
Pornography as a topic in academic and youthful circles is nothing short of delicate and complicated. It is becoming an integral part of 21st century popular culture and carving for itself some reputation as a foremost driver of internet use. Not surprisingly, the average age of male first exposure to pornography is 11. Pornography is pervasive and its potentials for commercialization are massive. A 2018 article by business news website, Quartz, pegs the annual value of the pornographic industry between $6 billion and $15 billion, without ignoring the possibility that it may be far higher, inching close to a hundred billion dollars. Logically speaking, we ought not to kill the goose that lays the golden egg, ought we?
The debate surrounding pornographic materials may as well be examined from this point forward. Pornography has been squeezed to fit into the provisions of Section 233D of the Nigerian Criminal Code which prohibits the publication of obscene materials; an offence which is punishable by a maximum of 3 years imprisonment. However, that provision is generally a scam. In reality, Pornography ranks alongside bigamy and prostitution as pseudo crimes in Nigeria. These crimes enjoy recognition in the law books but social orientation prevents prosecution. Crimes like this gain cheap and common acceptance and overtime attain conscious legality. There is no perfect example than The Obscene Publications Act 1959 of England which was revised by the Crown Prosecution Service in 2019. The effect of the 60 year period between the original act and the amendment is to exempt criminal prosecution for pornographic publications that are consensual, causing no harm or fueling violence/criminality and was not likely to be reach an audience below 18 years of age. It is quite noteworthy however, that several laws prohibit child pornography and the enforcement rates are generally higher.
Moving forward, a recurrent query on pornographic materials has been the position of intellectual property laws on them. Put quite explicitly, intellectual property law is in a confused state over the protection of the rights embedded in pornographic works. Works in video, print and picture format are automatically eligible for copyright protection by virtue of the principle of fixation. Fixation simply refers to work produced in a tangible means of expression; written and audio recorded works are fixed, for example. For convenience purposes, the current conception of pornography is not the sexual activity but the fixation of such act into a tangible medium of expression – the form and not the content; notwithstanding that the content influences the form.
Haber in his article on The Copyrightability of Illegal Works as published in the Yale Journal of Law and Technology revealed that pornography and all other works that are characterized by originality are eligible for copyrights. This rule applies as long as they are fixed, that is, expressed. This is as a result of the fact that in some Berne jurisdictions (countries where copyright applies upon fixation like Nigeria), copyright laws do not explicitly prohibit the protection of works merely on the grounds of the illegality or morality of the content of such works. Haber further adds that makers of such works can in fact sue for copyright infringement.
Experience has however proven that the absence of an explicit provision preventing copyright protections for outlawed content is not conclusive authority that the courts will always recognize copyright protection. In his study on Copyrights and Graffiti in the UK, Bonadio remarked that the courts have over the years rejected copyright claims for illegal materials on the grounds of public policy and the “unclean hands of doctrine”, as expressed in the Latin term ex turpi causa non oritur actio. Ignoring the legal jargon, what this means is that no one can bring a valid claim in court if such claim originates from an invalid or illegal cause. Fair enough!
In the case of Glyn v. Weston Feature Film Co., the court according to Younger J. said the law was clear that “copyright cannot exist in a work of a tendency so grossly immoral.” In the case, the court did not grant a remedy for copyright infringement to the plaintiff, Elinor Glyn, for her erotic novel, Three Weeks. Scholars have suggested that copyright does indeed exist for such works but they only cannot be enforced when infringed. As an aside, the British courts have recently justified their position by relying on Section 171(3) of the Copyrights, Designs and Patents Act which states that the protection of copyrights can be prevented by any rule [of law] which restricts the enforcement of copyright, on grounds of public interest or otherwise.
There is no similar provision to that of the CDPA under the Nigerian Copyright Act even though such exists under the Patents and Designs Act. However, since pornography in this context has nothing to do with patents and inventions, it is to be taken that there is no express law preventing the copyrightability of pornography in this part of the universe. Nevertheless, under the unclean hands doctrine referred to earlier, creators of these works cannot validly enforce the copyright protection in Nigerian courts. In response to whether the lack of judicial protection will occasion economic loss, the answer is in the affirmative. To remedy this, modern video pornography creators have resorted to streaming to mitigate losses. Commercialization is thus achieved through paid subscriptions, ad revenue and, for premium sites that have a customer base ready to damn the incognito mode, downstream revenue works too.
To wrap this up, pornography and related matters are shrouded in much hypocrisy. In developed countries, pornography is considered illegal or immoral or unfit for intellectual property protection but the government smiles to the bank consequent upon the imposition of heavy taxes on the content, living off people’s addiction. It is recommended that clearer laws be made on the subject matter, both on the issue of its criminality as well as copyright protection issues. The government should also look to tackle piracy generally and introduce strong regulatory systems if it intends to build a sane and creative society, with or without pornography.
Remember the Mr Macaroni riding on a bicycle back in primary school days? Yeah, he is now into skits and has actually made it quite big. You are not alone dear, everyone is shocked as well (and lest I forget, please ignore those conspiracy theories about the name being Mark Anthony. Some people are just out to soil our childhood fun).
It happened that Mr. Debo Macaroni, the “Ooin! You’re doing well” crooner was greeted with a shocker on the first day of March. On his official Twitter page, he addressed a mail sent by Wema Bank to a customer in which his catchphrase was used alongside the picture of an unknown individual (definitely not him and arguably, not presented to be him). He lamented that such act is deceitful and fraudulent. He also claimed that the catchphrase was his intellectual property. Quite recently too, word got out that Piggyvest used the catchphrase, albeit partially, leaving out the “ooin.”
Given the recent spate of comments on Twitter, things could get quite confusing, particularly with the long list of non-expert advice available on the bird app. The pertinent question on every lip and keypad is whether Mr. Macaroni has a legal right to the catchphrase and consequently, sue.
Taking this one step at a time, a trademark is an IP asset that protects signs, symbols, letters, numbers, smell, shapes, colours or expressions that distinguishes a product or organization or individual from others. A service mark performs a similar function for services and service providers. Catchphrases are expressions that can be trademarked on the condition that they are not mere words; they must be used in connection with the aim of identifying a product or service. The effect of a trademark is to grant exclusive rights to use and gain commercial profit from the use of the catchphrase.
Overtime, Mr Macaroni has built his brand around the catchphrase and undeniably gained some level of commercial benefit through endorsement and advertisement deals. He can then be said to have a right over the use of the catchphrase against unauthorised use by individuals or enterprises. But just before you sue Wema Bank in your mind, some deep thought must be given to whether he had registered the catchphrase or not.
A trademark is not effective without registration. An action will most likely fail if he has not registered the trademark subject to some exceptions. Nigeria operates the first to file trademark policy as against the first to use doctrine. That is, the first to register a trademark necessarily has rights over it against the first user. However, the rights of the owner of an unregistered trademark which proves to be “identical or confusingly similar” may prevail over that of the owner of the registered trademark in a case where the owner of the unregistered trademark proves that he had been using his mark continuously for some time before the grant of the registered trademark. The Supreme Court decided similarly in American Cyanamid Co. v. Vitality Pharmaceutical Ltd (1991) 2 NWLR (Pt.171) 15
Moreover, an unregistered trademark can be protected where evidence of use of and goodwill acquired from a trademark can be established. Under common law, this is proof of vested rights to the mark and an owner that has continuously used and acquired relevant goodwill can bring an action against any infringement and maintain ownership of the mark.
In this instance, it is unsure whether Mr. Macaroni has successfully trademarked the phrase. If he has, that makes legal action very easy for him. If he has not, he can seek remedy under common law principle for unregistered trademarks if he is convinced that the requirements are met in his case. Section 3 of the Trade Marks Act allows him to successfully bring an action under passing off at the Federal High Court. He may also file a cease and desist letter with evidence of his use and goodwill of/from the trademark.
This author believes that Mr. Macaroni has a good case provided his action centres on the use of “ooin, you are doing well” as an entire phrase. Mere “you are doing well” as a catchphrase is not considered distinctive for a performer’s brand. The combination of the distinctive and novel “ooin,” ticks every box necessary for a valid trademark. On a final note, it ought to be commonly accepted by now, especially with the recent rise in awareness of Intellectual Property Rights, that the use of a symbol or expression of another person or enterprise without authority is wrongful and legally actionable. Living off someone else’s intellectual property and goodwill is just not freaky enough.