Updates on IP Legislations in Nigeria

Nigeria has experienced some recent updates with respect to Intellectual Property (IP) laws. It is pertinent to share this update and highlight the major points relating to the protection and enforcement of IP in Nigeria. We are confident that these updates will further provide various IP owners with the realization that protection of their IP rights in Nigeria is important to their organization and brand. 

1. Copyright Act 2022

The Copyright Act 2022 repeals the Copyright Act of 1988 and introduces provisions that address some of the unique challenges arising from digital uses of copyright works.  One major implication that follows from the objectives of the Act is the alignment of the Nigerian legal framework for the protection of Copyrights with international treaties to which Nigeria is a signatory.  Major highlights of the Act are provided below:

1. 1. The new Copyright Act, in alignment with the WIPO Internet Treaties, namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) introduces new “digital rights” of distribution, communication to the public, and making works available through wire or wireless means.

1. 2. The Act now also includes legal protection for technological protection measures (TPMs) used by rights holders to protect digital works from unauthorized use and access, as required by the WCT and WPPT.

1. 3. In compliance with the Marrakesh Treaty, a new exception has been introduced to allow for the production and international transfer of specially adapted books for individuals with visual impairments, to facilitate access to published works for persons who are blind or visually impaired.

1. 4. Additionally, new economic and moral rights for performers are introduced in alignment with the Beijing Treaty on Audiovisual Performances.

1. 5. The Act also introduces the metrics for determining fair dealing as follows: 

• purpose and character of its usage
• nature of the work
• Amount and substantiality of the portion used in relation to the work as a whole; and
• effect of the use upon the potential market or value of the work. 

1. 6. New legal remedies have also been introduced by the Act to enforce the rights of copyright holders in the online space. Particularly, sections 54-56 of the Act provide copyright owners with the authority to issue notices of infringement to internet service providers, requesting the removal or deactivation of links to infringing contents. Section 61 of the Act also grants the Nigerian Copyright Commission (NCC) the power to block access to online content that infringes on copyright. This development is especially important in the fight against content piracy, which has been a major issue for Nigeria's music, film, and television production industries since the advent of the digital age.

2. Franchising Act (Establishment) Bill 2022

In January 2023, the Senate passed the Franchising (Establishment) Bill. The Bill creates a legal framework for the operation of franchising (and other related matters) in Nigeria, in line with global best practices. The Bill particularly provides that all franchise agreements between Nigerian franchisees and their franchisors shall incorporate standard provisions in line with international best practices.

The Bill further seeks to guide the relationship between franchisors and franchisees and establish a franchise system geared towards the overall enhancement of economic development in Nigeria. The Bill mandates all franchisors and franchisees operating in Nigeria to ensure compliance with the provisions of the Bill as well as the regulations made pursuant to the Bill.

Some major provisions of the Bill are highlighted below -

• Local Content: The Bill mandates all franchise operators in Nigeria to ensure that they meet a minimum of 20% local inputs in their operation.
• Delivery of Disclosure Documents: Subject to a number of exceptions, the Bill requires the franchisor to deliver to the franchisee (together with the franchise agreement)  a disclosure document which should contain, inter alia,  the trade mark/name or business under which the franchisor carries on business; a description of the franchise to be operated by the prospective franchisee; information regarding the franchisor's intellectual property to be licensed to the franchisee.
• Registration of Franchise Agreements and Proprietary rights: The Bill requires the registration of all propriety rights associated with any foreign business franchise, licensed to franchisees in Nigeria (including patents, trademarks, and industrial designs, etc.). The Bill also requires the registration of all franchise agreements entered into by franchisees in Nigeria with franchisors outside Nigeria.

Non-compliance with the provisions of the Bill is an offence. By the provisions of the Bill, non-compliant persons are liable upon conviction to a term of imprisonment of not more than a year or a fine of N1,000,000 or both.

3. Business Facilitation (Miscellaneous Provisions) Act 2023

While the Business Facilitation (Miscellaneous Provision) Act, 2023 is not an intellectual property legislation per se; it is a law that seeks to enhance the ease of doing business in Nigeria, amongst other things.  To this end, the Act amends various laws that have implications for ease of doing business including the Trade Marks Act 1965 and the Patents and Designs Act.

The new law amends the Trademarks Act by including a definition for “goods” in the definition section (Section 67). It defines “goods” as including services. Thus, all references to “goods” in the Trademarks Act 1964 now include services.  It should be noted that since the Minister, in 2011, published a Gazette amending the Trademarks Regulations by extending the classification of goods to include services, there has been uncertainty as to the efficacy of the amendment because until now, provisions of the Trademarks Act made no reference to “services”.  This amendment effectively puts to rest the arguments and uncertainty around the enforcement of service marks.  The Business Facilitation Act also amends the definition of “Trademarks” to now include the shape of goods and packages and a combination of colours as trademarks.   With this amendment, Nigeria is ushered into the league of countries that recognise and protect shape and colour marks.

The new law also amends the First Schedule of the Patents and Designs Act (which provides for Compulsory Licenses), by inserting a new section 13A which requires the Minister to prescribe by regulation the procedure for the application, grant, use, and withdrawal of compulsory licenses.