Intellectual property can be regarded as the protection of any inventive effort, creative works, or intangible creation of the mind. It is that area of law that confers a legal right of use to creators and inventors and protects their works from unwarranted exploitation. It equally allows them to commercially benefit from their intellectual effort by earning profits or rewards which they can choose to reinvest into creating more inventions and creative works. Intellectual property has tremendously evolved such that creative and inventive works are now created, streamed, and consumed online. This underscores the need for creatives to protect their intellectual property (IP) rights against piracy, plagiarism, hijacking, theft or any breach of their rights both online and offline. This article aims to highlight what amounts to breach of IP rights, the remedies available where there is a breach as well as practical steps for the enforcement of such rights in the event of a breach.
WHAT LAW GOVERNS INTELLECTUAL PROPERTY RIGHTS IN NIGERIA?
Intellectual property right is mainly divided into two areas; copyright and industrial property rights. Copyrights protect the rights of creators of artistic, literary, musical, and performers’, and broadcasters’ rights while industrial property protects trademarks, patents, industrial design, and trade secrets. We had earlier stated that intellectual property guarantees exclusive right of use to creatives and inventors, it will be out of place if we do not identify the laws that guarantee these rights. In Nigeria, some laws protect and promote the rights and interests of creatives and inventors. These laws include the Copyright Act 2022, Trademark Act, Patent and Design Act 1970, Merchandise Mark Act, etc. Nigeria is also a signatory to some international instruments for the protection of intellectual property rights such as the Berne Convention for the Protection of Literary and Artistic Works, the TRIPS Agreement, the Paris Convention for the Protection of Industrial Property (Stockholm Act 1967), etc.
WHAT AMOUNTS TO A BREACH OF INTELLECTUAL PROPERTY RIGHTS?
A breach is what occurs when a person’s intellectual property right has been infringed upon. Depending on the type of intellectual property, the various laws highlighted above have prescribed the scope of rights that accrue to creative works or the owner of intellectual property. Hence, reference can only be made to the same laws to ascertain what constitutes a breach.
- Copyright is breached when a person without the license or authorization of the owner of a copyright does or causes any other person to do an act, the doing of which is controlled by copyright. Also, a breach occurs when a person imports or causes to be imported to Nigeria any copy of a work which if it were to be produced in Nigeria, would be an infringing copy under the Act. To establish a breach, the owner must show that a substantial part of the work has been copied. An infringement of a copyright is considered a breach of statutory duty owed to a person entitled to the right [i]
- In the case of a trademark, a breach occurs where an infringer without due authorization of the owner or proprietor, uses a mark identical with or so nearly resembling the registered trademark in the course of trade which is likely to deceive or cause confusion. [ii]
- Where a patent has been granted concerning a product or design, an infringement will occur where a person makes, reproduces, imports, distributes, displays, sells or stocks the patented product for sale or applies the same process used to obtain the patented product for commercial purposes.
WHAT ARE THE REMEDIES FOR IP INFRINGEMENT?
There is a popular saying that where there is a wrong, there is a relief or remedy. In other words, owners of IP are entitled to remedies for any breach of their rights. There are two kinds of remedies; civil remedies and criminal liabilities. Civil remedies are mostly considered in the event of a breach of IP rights. Examples include; an action for damages, an action for account of profit, injunction (Anton pillar, Mareva, interim or interlocutory), or an action for delivery up. While criminal liabilities include imprisonment, fine, and an order of forfeiture. The remedies available for the enforcement of intellectual property rights through the judicial process can be briefly highlighted as follows:
i. An order of injunction: Several types of injunctions can be issued in legal cases, including perpetual injunctions, which provide ongoing restrictions, interlocutory injunctions, which are temporary orders to maintain the status quo, Mareva injunctions, which allow freezing of a defendant’s assets to prevent them from being moved, and Anton Piller injunctions, which permit the search and seizure of evidence before a trial. The primary goal of these injunctions is to prevent any changes or damages from occurring before a thorough trial can take place to determine the merits of the case.
ii. Award of damages: The court awards financial compensation to the plaintiff, providing him with monetary relief for the losses he suffered as a result of the infringement of his rights. This compensation aims to address the financial impact of that violation.
iii. An action for delivery up: This is a formal order directing the defendant to promptly surrender all items that are found to be infringing upon the plaintiff’s rights. These items must be handed over in their entirety, as they are considered to violate the plaintiff’s intellectual property or proprietary rights. The defendant is required to comply with this order to ensure that the plaintiff can protect their interests and prevent further infringement.
iv. The account of profits: This provision is designed to prevent unjust enrichment, meaning that individuals should not benefit at the expense of others without proper justification. It is important to note that this remedy is not accessible to plaintiffs who have already received sufficient compensation in damages for the infringement they experienced.
v. Order for inspection and seizure: When an official order for inspection and seizure has been issued, this allows the applicant to access the premises at any reasonable time. This access is to be conducted with the accompaniment of a police officer, who must hold the rank of at least Assistant Superintendent of Police. The purpose of this order is to enable the applicant to seize, detain, and securely preserve any copies or devices that infringe upon rights. In addition, the applicant is authorized to examine all documents that are either in the custody of the defendant or under their control, particularly those that are pertinent to the ongoing legal action.
HOW TO ENFORCE YOUR INTELLECTUAL PROPERTY RIGHT WHEN THERE IS A BREACH
Here are practical steps you can consider in enforcing your intellectual property rights in case of an infringement.
1. The first step is to issue a cease and desist letter or a notice to take down, in the case of a copyright infringement, addressed to the service provider especially where the content was published online.
2. In the event that the infringer refuses to comply with the takedown notice, the service provider is mandated under the law to block access to the infringing site or content. [iii]
3. Report to the relevant regulatory agencies: Where there is a persistent violation, a report can be made to the relevant regulatory agencies notifying them of the infringement
4. After exhausting all the steps mentioned above, you can take your case to court for help. In Nigeria, the Federal High Court handles all copyright and trademark cases. If you have an agreement that allows for Alternative Dispute Resolution (ADR) for resolving disputes or infringements, then you should use that process. If there is no agreement, you can file a criminal complaint or a civil case in court, depending on the law and how serious the infringement is.
CONCLUSION
Intellectual Property rights are of immense value not just to the owner but also to the society when in use. Intellectual property does not protect ideas; it protects the expression of those ideas into tangible results. It must be noted that not all exploitation of IP rights amounts to a breach of the owner’s right of exclusive use. For instance, where the owner neglects, refuses, or fails to renew his rights after expiration, such a product will go into the public domain and can be accessible by the public. Therefore, any action for infringement will not succeed. Other reasons include; that the act done was for a scientific or non-commercial purpose, or that the infringing act falls under an exception allowed by the law (compulsory license). Therefore, it is imperative to not only identify and register your intellectual property but also to always make reference to the governing laws to ascertain whether or not a breach has occurred before taking any step in addressing such breach.
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[i] Sections 36, 55, 61 Copyrights Act 2022
[ii] Section 5 (1) (2) Trademarks Act
[iii] Sections 36, 55, 61 Copyrights Act 2022
