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Role of the Nigerian lawyer in fight against product counterfeiting

By Akeem Aponmade

Since 1990, I have had the sheer privilege of working in the field of Intellectual Property. I commenced work as an Assistant Coordinator in charge of enforcement in the Nigerian National Group of IFPI and by the time I left to start my private legal practice, I was the Chief Executive Officer. IFPI, the International Federation of the Phonographic Industry, is the body that represents the global record industry. It has 1,450 members in 72 countries and holds a consultative status with a number of UN spe...ed agencies including WIPO, UNESCO and ILO. In 2005, IFPI in conjunction with its counterpart in the movies industry, MPA, decided to set up a joint project in Nigeria. I was appointed a Consultant to manage the project and thereby became their National Coordinator. MPA stands for Motion Picture Association, an international body of producers of movies based in California having regional offices in Europe, Latin America and Asia. Business Software Alliance in 2007 appointed me their Spokesperson in Nigeria. BSA is the international body of software vendors and their hardware partners including Adobe, Synmatec, Microsoft, Autodesk, HP, etc. In this same period, I have had the honour of being appointed by the Nigerian Copyright Commission as its Anti-piracy Consultant and serving my country as a member of the National Anti-piracy Committee. I have also derived immeasurable pleasure working hands in hands with a number of notable personalities in the Nigerian music industry. In fact, it was the music industry that introduced me into the copyright field and copyright in turn has led me into the wider IP spectrum. Since I went into private practice, I have consulted for a number of manufacturers, outside the copyright industries, on issues bordering on counterfeiting of their products. The fact simply is, when we talk about copyright infringement or passing off or trademark infringement or generally IP infringement, we are in practical terms talking about product counterfeiting. Learned colleagues, let me confess to you that I have in the last 18 years seen the growth in importance of IP issues not just in Nigeria but globally. The rise in urban population coupled with new technologies has contributed to the discovery of more artistes and consequently more recorded songs. Franchising has become a modern business tool today and a vehicle for brand promotion worldwide. As individuals devote more attention to creativity and companies spend more on research and development, so do we see more inventions and intellectual property created and the effect has been a growth in the global economy. In the same vein, product counterfeiting is growing rapidly and constitutes a serious collective threat to world economy. Individuals, companies and governments of different nations are beginning to appreciate that infringement of intellectual property has seriously damaging economic, social and developmental costs. Issues involved nationally range from discouragement of innovation to loss in tax revenue to health and safety risks. IP infringement also creates a significant drain on the global economy by undermining economic development, distorting a sound market system and stifling open international trade and investment. Economists have established a nexus between creation and adoption of new ideas and progress of modern economies. 30 per cent to 40 per cent of all US gains in productivity and growth over the course of the 20th century has been traced to economic innovation in its various forms. Today, some two-thirds of the value of America?s large businesses can be traced to the intangible assets that embody ideas, especially the intellectual property of patents and trademarks. Globally, the US? contribution to the records industry and movies industry is the most significant by any single nation. This underscores the importance of IP in the world in which we live today. Although this is not a paper on IP stricto sensu, it is pertinent to briefly explain what IP is in order to make this paper complete. Intellectual property refers to creation of the mind, inventions, literary and artistic works, and symbols, names, images and designs used in commerce. It has become customary for scholars to divide intellectual property into two categories, namely: Industrial property, which includes invention (patents), trademarks, industrial designs and geographic indications of source; and copyright, which includes literary and artistic works such as novels, poems and plays, film musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of perfuming artistes in their performances, producers of phonograms in their readings and those of broadcasters in their radio and television programme. There are other recognised forms of intellectual property including plant varieties, trade secrets, confidential information, and know how, often subject to various contractual arrangements or license. Even to legal scholars, these are extremely murky concepts often fraught with vagaries and uncertainties. Many people are yet to fully comprehend the magnitude of the problem of IP infringement albeit product counterfeiting. If we did not, probably the following statistics will be helpful: Customs seizures of illegal goods amounted to a value of $54 million in the US in 1997. The top five countries of origin behind this statistic were China, Korea, Taipei, Hong Kong, and the Philippines. The top countries of origin for counterfeit goods seized by EU customs officials were Poland, Thailand, Turkey, and the US. In the US, the composition of these seizures was primarily apparel, consumer media goods such as videos, music recordings and computer games, and power goods (OECD, 1998bn). In 1993, US Customs Service estimated the total American job loss due to counterfeited goods to be 750,000 (International Anti Counterfeiting Coalition, 2002). The IACC (2002) also report that the New York City Consumer Affairs Commissioner estimated a tax loss to the city due to counterfeit goods of $350 million in 1993. In the EU, roughly 50 per cent of the seized goods were apparel products. In 1993, US Customs Service estimated the total American job loss due to counterfeited goods to be 750,000. Trade involving counterfeiting is estimated to account for a total of seven per cent to nine per cent of world trade. It is estimated that the share of counterfeit goods as a percentage of turnover is 33 per cent in the music recording industry, 43 per cent in software, and 50 per cent in the market for motion picture videos (OECD, 1998b). In the music industry alone, the global music market is worth US$34 billion in 2005. 1.2 billion pirate music worldwide, of which 37 per cent of all CD album sales are pirate product, were sold in 2005. The total value of global pirate music sale was US4.5 billion in 2005 (IFPI). The software industry is not any better. With regards to Nigeria, only estimates are available. We may therefore not really know the full extent of this problem on our society. It is estimated for instance that the level of software piracy in Nigeria is over 80 per cent. The levels of music piracy and movies piracy in Nigeria are also estimated at over 80 per cent. Nonetheless, I know as a fact that there are 17 CD replicating plants in Nigeria today with a combined capacity to manufacture over 1 billion CDs yearly. Recent enforcement actions have shown that some of these plants moved from countries where the environment had become unconducive for piracy activities and have come to Nigeria to find a safe haven. We have discovered that there is hardly any product which counterfeit you cannot find in Nigeria. Smart cards for cable decoders have been forged and used in his country; food and beverage products have been subjected to counterfeiting; counterfeit drugs and cosmetics continue to be made in Nigeria and or shipped into Nigeria, in spite of the commendable activities of NAFDAC. Shoes, bags, pens, name it. Nigeria seems to have become a major destination for counterfeit products in recent times. Product counterfeiting is undoubtedly a major problem for most economic and industrial sectors and its ultimate victims are the consumers, IPR holders, Government and the nation. We are aware of the negative impact of software piracy and counterfeiting on the image and economy of our country Nigeria. Image matters so much in life. It is even more important when it has to do with the image of a country. A nation with poor image index is not likely to attract foreign direct investment from other countries. Without FDI a country can hardly make headway in terms of economic development. This is the reason the fight against piracy should be seen as a national crusade which should involve all the stakeholders in the Nigerian project. What role is there for a young Nigerian legal practitioner in the fight against product counterfeiting? The most significant factor, in my mind, that distinguishes a legal practitioner from others is knowledge; not knowledge of the law per se, but knowledge of how and where to find the law to solve a given legal problem. Lawyers are certainly merchants of knowledge. The knowledge is only useful if we know how to call it forth and how to apply it. This is why I see a legal practitioner as a problem solver. It follows therefore that a legal practitioner?s utility will depend on his ability to find a solution to an existing problem and or to advise on how to prevent a problem from arising in the future. The same can be said with regards to the issue of product counterfeiting. There is no doubt that globally and nationally, product counterfeiting is a serious social, economic and developmental problem. Beyond this, it is also fundamentally a legal problem. It is implied in my earlier statement that wherever there is a legal problem, a legal practitioner has a role to play in providing a legal solution. To be continued...

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