The Securities and Exchange Commission (SEC) requires all existing investment crowdfunding portals/digital commodities investment platforms to register with the Commission by the 30th of June 2021. Failure to comply would attract regulatory sanctions. Thus, such entities are expected to take note of the registration requirements and ensure that they comply with the eligibility criteria.
Download a checklist of those requirements:
With the improvement of technology and increase in cross-border transactions, there is a growing shift towards using ecommerce channels in conducting business activities. This brings along with it benefits such as appealing to a wider customer base without incurring the overhead costs involved in running and expanding brick-and-mortar businesses. Developments in fintech solutions have been instrumental to facilitating the adoption of ecommerce in Nigeria. The cost of integrating payment solutions to platforms has drastically reduced over the years and as such it has become more accessible to the general public who intend to use these solutions to receive payments for products and services sold through the internet. Ecommerce has particularly proved itself as a viable means of continuing sales during the COVID-19 pandemic where movement was limited.
Internet user penetration in Nigeria is estimated to be 46.6% in 2020 and is expected to be 65.3% by 2025.[1] With this, Nigerian ecommerce spending is estimated to be $12 billion as at 2020.[2] However, despite the benefits of ecommerce, it is accompanied by various challenges including intellectual property infringement. In this article, we will be examining intellectual property infringement and how it can be avoided in ecommerce through notice for takedown schemes.
Simply put, intellectual property infringement occurs when a person uses, produces or sells content, designs, methods, procedures, products, etc. without the permission of the owner. In Nigeria, the main laws governing intellectual property are as follows:
Under the Copyright Act, an infringement is said to occur when a person does any of the following without the licence or authorization of the copyright holder:
With regards to patents and designs, rights of a patentee or design owner are infringed if another person makes, imports, sells, or uses the product or applies the process without a licence from the patent owner.[4]
Under the Trade Marks Act, an infringement is said to occur when a person, who is neither the trademark owner nor a person authorised by the trademark owner, uses a mark that is identical with or similar to the trademark such that it is likely to deceive or cause confusion in the course of trade.[5]
Currently, the ways of handling intellectual property infringement in Nigeria range from measures such as cease and desist letters to litigation. However, at this juncture it would be proper to look into the possibility of adopting notice for takedown schemes.
The present intellectual property regime in Nigeria does not make provision for notice for takedown schemes. At best, it is left to the discretion of ecommerce service providers. However, the draft Copyright Bill 2015 contains provisions governing notice for takedown regarding content that is shared online.
Section 47(1) of the Bill provides thus:
“The owner of copyright in a work in respect of which copyright has been infringed, may issue notice of such infringement to the relevant service provider requesting the service provider to take down or disable access to any infringing content or link to such content, hosted on its systems or networks.”
The Bill defines a service provider as “a provider of online services or network access, or the operator of facilities therefor, and includes an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received”.[6] This provision would give copyright owners the right to notify service providers, such as e-commerce stores, internet service providers and content providers, of an ongoing intellectual property infringement. The notification is required to fulfill the following criteria:
In the same vein, a service provider has certain duties to fulfil upon receiving a notice of infringement. Section 48(1) of the Bill requires the service provider to notify the subscriber responsible for the alleged infringing content of the infringement notice.
The subscriber in question has 10 days to provide information justifying the continued keeping of the alleged infringing content. Although the Bill does not expressly specify criteria that the subscriber must satisfy, it can be deduced that a subscriber should show either of the following:
If the service provider is satisfied by the information provided the subscriber, they shall inform the complaining party of their decision not to take down the content.[8]
If the subscriber fails to provide justification, Section 48(2) of the Bill requires the service provider to take down or disable access to the infringing content or links to such content hosted on its systems or networks and subsequently notify the copyright owner.
From the foregoing, it can be seen that ecommerce service providers would be expected to accord sellers who utilize their platforms the right to fair hearing before taking any action to resolve the issue.
In a situation where the work alleged to be infringed on is in fact the infringing material, the subscriber can submit a written counter notice to the service provider. The counter notice will be submitted to the copyright owner who would be required to show that the subscriber was not authorized to make the content available.[9]
It must be noted that the notice for takedown scheme as provided in the Copyright Bill 2015 was not intended to be final. Any party who is dissatisfied with the decision of the service provider has the right to appeal the decision to the Nigerian Copyright Commission. Parties could further appeal to the Federal High Court.[10]
Copyright infringement is not synonymous with patent infringement and as such issues may arise in attempting to apply the foregoing provisions of the Copyright Bill, should the Bill receive Presidential assent. In spite of this, the spread of ecommerce necessitates stakeholders to extend the possibility of resolving patent infringement matters through notice for takedown schemes. Incorporating a notice for takedown framework to specifically address patent infringement issues can help to facilitate dispute resolution without going through lengthy court processes.
There arise certain challenges in adopting notice for takedown schemes in cases of patent infringement. While notice for takedown schemes relate to removing information that is stored in a system, resolving patent infringement issues requires the restriction of sales of the patented item. However, in the case of ecommerce it can be argued that a sale taking place on an ecommerce platform relies on the presence of the relevant advertising medium (content) on the ecommerce platform’s system and as such taking down the offending content from the servers would help to curtail the sale of the infringing item.
A reliable intellectual property regime is an important aspect of ensuring business success and promoting economic growth and investment. Intellectual property infringement has a negative effect on innovation and research and development efforts. In addition to this, the present justice dispensation in Nigeria is in need of important reforms to enable it deal with cases in a timely, efficient and effective manner.
The Copyright Bill 2015 was approved by the Federal Executive Council in 2017 and is currently awaiting review and passage into law by the National Assembly. Once the Bill is passed, it would become easier to implement the notice for take down scheme due to the presence of existing framework. By extension, this would form a blueprint for the application of a similar scheme to incidences of patent infringements.
For inquiries and further information, email us at inq@grfdalleyandpartners.com
Footnotes:
[1] https://www.statista.com/statistics/484918/internet-user-reach-nigeria/
[2] https://www.thisdaylive.com/index.php/2020/01/09/of-ecommerce-growth-and-digital-economy/
[3] Section 14 Copyright Act 2004
[4] Section 25 Patents and Designs Act 2004
[5] Section 5 Trade Marks Act 2004
[6] Section 47(3) Copyright Bill 2015
[7] Section 47(2) Copyright Bill 2015
[8] Section 48(3) Copyright Bill 2015
[9] Section 48(4) Copyright Bill 2015
[10] Section 81 Copyright Bill 2015
President Muhammadu Buhari recently assented to the Companies and Allied Matters Bill 2020.
The Companies and Allied Matters Act 2020 (CAMA 2020) introduced a number of changes to improve ease of doing business and introduce transparency. This document highlights some of the changes.
A trademark is considered an intangible asset that has positive effects on the goodwill of a business. Through trademarks, goods and brands are able to distinguish themselves from others and attest to their quality. In spite of the laudable effects of trademarks, the trademark registration process in Nigeria leaves much to be desired.
A Case for Digitizing the Trademark Registry in Nigeria
A juxtaposition of the current state of the Trademark Registry with that of the Corporate Affairs Commission (CAC) would greatly facilitate an understanding of the need for the Trademark Registry to improve its online operations.
Prior to the launching of the CAC online system in 2015, the process of registering a Company was done manually. Consequently, going through the initial stages of starting a business was a time-consuming task. According to the World Bank’s Report on Doing Business 2014, a person had to go through an average of 10 procedures over 33 days in order to start a limited liability Company.[1] Certificates of Incorporation were issued directly from the headquarters in Abuja.
Over time, Nigeria has been able to perfect its use of the CAC online system. Searches for available company names can be done online. As at 2019, Nigeria ranked 131 out of 190 economies in the ease of doing business.[2] The number of procedures involved in starting a business have reduced from 10 to 7 and it now takes approximately 7 days for a limited liability Company to be registered. The digitization of the Corporate Affairs Commission has reduced the level of bureaucracy involved in Company registrations and this, among others, has contributed to Nigeria’s improved score to 86.2 in starting a business.
In Nigeria, debarring any delays, it takes approximately 18-24 months to register a trademark or sometimes longer. Unlike the search process at the CAC, the preliminary trademark availability search process is still done manually at the Trademarks, Patent and Designs Registry in Abuja. For Practitioners not based or with an office in Abuja, this would add the inconvenience of travel to effectively handle the process of registration of a trademark. In other jurisdictions such as the United Kingdom, the preliminary trademark availability search can be done by using the online platform made available by the Intellectual Property Office (IPO). Searches can be done by trademark number, owner, and keyword, phrase or image.
Once a trademark application is accepted, it is published in the trademark journal to give interested parties the opportunity to notify the Registry of their objections to the registration of the trademark. Unfortunately, there is no online version of the trademark journal in respect of trademark applications made in Nigeria. Therefore, physical copies of the journal have to be obtained. This does not promote efficiency in the trademark registration process. In the United Kingdom, the Intellectual Property Office (IPO) makes the online version of the trademark journal available. Details of the application such as the word, image, class and owner are provided.
Having a registered trademark is one of the requirements as stipulated by the National Agency for Food and Drug Administration and Control (NAFDAC) that must be satisfied by those intending to venture into the pharmaceutical market. By extension, it would take much longer for a pharmaceutical company to commence operations in Nigeria. Thus, delays experienced as a result of the bureaucracy involved in the trademark registration process can dampen interest in investing in the pharmaceutical market in Nigeria.
Conclusion
The important role that trademark registration plays in brand recognition cannot be underestimated. Although Nigerian institutions are slowly embracing the advantages brought by technology, there is still room for improvement. Digitizing the trademark registry can contribute positively to the ease of doing business in Nigeria, especially with the current ongoing COVID-19 experience. On this basis, it is important to address the need for the Trademark Registry to improve the functionality of its online platform.
[1] https://www.doingbusiness.org/content/dam/doingBusiness/media/Subnational-Reports/DB14-Nigeria.pdf
[2] https://www.doingbusiness.org/content/dam/doingBusiness/country/n/nigeria/NGA.pdf
The United States of America (USA) recently imposed a travel ban on Nigeria by expanding the list of countries restricted from obtaining certain types of visas. The ban takes effect on February 21, 2020.
Burma (Myanmar), Eritrea, Kyrgyzstan, Nigeria, Sudan and Tanzania were added to the initial list of seven countries under the travel ban on account of certain deficiencies that position them as countries that pose a high degree of security risk to the USA.
Nigeria’s inclusion on the list was met with great surprise particularly in light of the moves made to promote mutually beneficial trade and commercial ties between African countries and the USA.[1] The USA is one of Nigeria’s main trading partners and has remained an ally of the USA in the fight against terrorism.
The following was cited as the reason for Nigeria’s inclusion on the list:
“Nigeria does not comply with the established identity-management and information-sharing criteria assessed by the performance metrics. Nigeria does not adequately share public-safety and terrorism-related information, which is necessary for the protection of the national security and public safety of the United States. Nigeria also presents a high risk, relative to other countries in the world, of terrorist travel to the United States. Nigeria is an important strategic partner in the global fight against terrorism, and the United States continues to engage with Nigeria on these and other issues. The Department of State has provided significant assistance to Nigeria as it modernizes its border management capabilities, and the Government of Nigeria recognizes the importance of improving its information sharing with the United States. Nevertheless, these investments have not yet resulted in sufficient improvements in Nigeria’s information sharing with the United States for border and immigration screening and vetting.”
From the foregoing, the USA has expressed its concerns over Nigeria’s non-compliance with information sharing practices and the possibility of the export of terrorism into the country.
The level of restriction to be faced by Nigerian visa applicants was stated in the Proclamation as follows:
“The entry into the United States of nationals of Nigeria as immigrants, except as Special Immigrants whose eligibility is based on having provided assistance to the United States Government, is hereby suspended.”
A proper understanding of this shows that Nigerian nationals are still permitted to apply for visas under non-immigrant visa categories. Therefore, the ban does not apply to those who intend to visit the USA for business, leisure (tourism), education and temporary work.
However, Nigerians seeking to permanently emigrate to the USA will be affected by this ban. This means that green cards cannot be obtained for the purpose of family reunification and employment. Its application is limited to those who are outside the USA on the effective date of the proclamation. It also applies to those who do not have a valid visa on the effective date of the proclamation and do not qualify for a visa or other valid travel document. This means that the ban does not apply to those who are already in the USA and to Special Immigrants whose eligibility is based on having provided assistance to the United States Government.
Section 3(b) of Proclamation 9645 provides for exceptions to the applicability of the ban. Under the Proclamation, the following people are exempted:
An application for a waiver of the ban can be sought and such applications would be assessed on an individual basis. Such waivers are granted at the discretion of the consular officer or Customs and Border Protection (CBP) official.
In order for a waiver to be granted, the applicant must prove the following to the satisfaction of the consular officer or CBP official:
In 2018, the USA issued 7922 immigrant visas to Nigerians and Nigerian immigrants to the USA have made their mark by being among the most educated immigrants in the country.[3] There are indications that the travel ban can be lifted if Nigeria effectively addresses the security issues raised by the USA. The Nigerian government has already pledged to work with the USA to ensure the proper implementation of all the updates necessary to address these issues.[4]
For more information, contact:
GRF Dalley & Partners
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26, Igbosere Road
Port Harcourt Office:
13, Finima Street,
Old G.R.A.
Tel: +23414549824
Fax: +4420 8929 0855
Email: inq@grfdalleyandpartners.com
Website: www.grfdalleyandpartners.com
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[1] https://www.cgdev.org/blog/prosper-africa-promises-double-two-way-trade-and-investment-between-us-and-africa
[2] Section 3(c) of Proclamation 9645
[3] https://www.nytimes.com/2020/02/02/world/africa/trump-travel-ban.html
The United Kingdom’s relationship with Africa has its beginnings in the pre-colonial era. The Scramble for Africa between 1881 and 1914 resulted in the division of Africa amongst the Western European powers at the time, namely Britain, France, Germany, Italy, Belgium, Portugal and Spain.
The presence of Britain and France in Africa was particularly notable as they occupied vast territories in the continent. Although some African tribes put up resistance against colonial domination, they were unable to withstand the pressures and most of the continent eventually yielded to colonial rule.
Colonialism represents a critical turning point in the history of Africa. The new rulers controlled their newly acquired territories in different ways. While the French opted for a more direct form of rule, Britain ruled using the system of indirect rule. Through these colonial relations, Britain introduced its language, technology and a new way of life and fostered trade within its territories. Trade mostly involved the export of raw materials to Britain and the import of finished goods into Britain’s territories in Africa.
By the late 1950’s and early 1960’s African countries started to gain independence. The newly independent countries maintained their economic and political ties with their former colonial masters. However, the decolonisation of the continent meant Africans were, predominantly, in control of their own affairs. Britain continued its relationship with its former colonies under the banner of the Commonwealth.
Britain’s Influence in Africa, after Joining the European Union
Britain finally joined the European Economic Community (now the European Union) in 1973 after the resignation of then French President, Charles de Gaulle. Britain had previously applied in 1965 and in 1967 but both applications were vetoed by De Gaulle on the basis of Britain’s apparent incompatibility with Europe. In 1975 a referendum was conducted and Britain voted to remain part of the European Community.
Through the EEC, Britain was able to continue its relations with its former colonies in Africa. Under the Lome Convention of 1975, agricultural produce and mineral exports from countries in Africa, the Caribbean’s and the Pacific enjoyed preferential access into the EEC (now EU). This was made possible by Britain’s membership of the EU.
In 2007, the Joint Africa-EU Strategy (JAES) was launched at the Africa-EU summit in Lisbon, Portugal with the aim of establishing a reciprocal trade partnership between African countries and the EU. The hope was to promote sustainable development and foster greater relations between the two continents. Ultimately African countries were to be weaned off donor dependence.
Through the JAES initiative, the EU has been able to contribute financially to the African Union (AU) and various regional groups in the continent. The AU received over 2 billion Euros from the African Peace Facility (APF). The APF is funded by the European Development Fund (EDF).
The EU has entered into Economic Partnership Agreements with some of the countries in Africa to promote trade and investment. Africa has been exporting agricultural produce and raw materials to the EU. This trade has helped enlarge the markets available to African countries.
The United Kingdom has been exercising its influence in Africa through the EU through contributing to the European Development Fund and aid projects embarked on by the EU. It has been a driving force in carrying out discussions on matters concerning Africa and the effect EU policies may have on the continent. In matters of trade, the UK has been instrumental to shaping the EU’s trade policies towards Africa.
The world has been making great strides at becoming a global village. Former European colonies in Africa have started entering into trade partnerships with various governments and the influence of countries such as China, Turkey and the United States of America has been growing. The diversity of Africa’s trading partners is also being influenced by the adoption of South-South trade with other developing countries.
Although the UK still continues to trade with its former colonies, their influence cannot be said to be as strong as the influence their French counterpart wields over her former colonies particularly in West Africa. The reduction in trade between the UK and the African continent can be said to stem from the presence of other economies that exercised a better competitive advantage.
The UK is set to leave the EU on 31st January 2020 after which it would enter a transition period until the end of 2020, which can be extend up to one to two years. It is no doubt that Brexit will not affect the UK alone. Aside from affecting the EU, it will also have an effect on trade, aid and investment in Africa. Former Prime Minister Theresa May’s visit to selected countries in Africa in 2018 provided an insight into the UK’s intention to increase business participation in its former colonies, in the wake of Brexit.
The aid that the EU sends to Africa will also change with Brexit. The UK contributed largely to the EU aid budget and to the European Development Fund (EDF). The UK has agreed to remain party to the EDF and will honour all commitments related to the current 11th EDF.[1]
In spite of that, there are questions as to what would happen after 2020. There is the possibility that directly disbursing aid to Africa may either provide for greater efficiency or may limit its reach. However, it must be stated that EU funds made available through the EDF would be reduced and as such there would be a further challenge of making sure that the reduced funding available be put to good use and reach as many as possible. Once Brexit takes place, the UK will no longer play an active role in the policy decisions the EU makes in relation to Africa.
Not much is set to change in the during the transition period as the UK will still remain part of the EU Customs Union and Single Market until the end of 2020, and it is projected that trade relations with African countries are likely to remain the same due to continuity agreements. The UK has been actively working on deals with countries that already have trade agreements with the EU in order to avoid paying additional tariffs.[2] It is expected that the UK would enter into more trade agreements during the transition period. However, it is undeniable that the recent UK-Africa Investment Summit hosted by Prime Minister Boris Johnson marked an attempt by the UK to boost trade relations with its former colonies in the wake of Brexit.
The discussions about Brexit have made way for various predictions of the kind of changes we are expected to see in the coming years with regards to the UK’s relationship with African countries.
It is expected that post-Brexit UK would be diversifying its investments in Africa by increasing its investment in other countries on the continent that exhibit more promise in terms of economic growth rate. This would position the UK as an active partner in the development drive of several African countries.
Currently, South Africa enjoys about 30 percent of the UK’s foreign direct investment in Africa but has a growth rate of only 0.8 percent.[3] Kenya on the other hand has a growth rate of 6 percent but only enjoys only 2 percent of the UK’s total investment in Africa.
Diversifying investments by increasing investment in other African countries would allow the UK to benefit from the economic opportunities available there
With the rise of technology startups in Africa, it would be logical to conclude the startup space may be one of the areas that would benefit from UK investment. Nigeria, for instance, received $663.24 million in venture capital in 2019 thus making it top startup investments in Africa.[4] Sectors such as fintech, logistics and agritech are particularly promising in 2020.
Another change we might see in the coming years would be the UK’s attempt to engage in more infrastructure projects in the continent. In countries such as Nigeria, it is impossible to ignore the great strides taken by China in providing infrastructural development by being a major player in the country’s plan towards economic recovery and growth. The UK would have to make great efforts to match China’s achievements and competitive advantage in this regard in order to attain the position of a strategic partner in infrastructural development.
Immigration is one of the areas that would be affected in post-Brexit UK. It is argued that in order to benefit from improved trade relations with its African counterparts, the UK may need to relax its immigration policies towards Africans, particularly those from the Commonwealth. Prime Minister Boris Johnson hinted at the possibility of a fairer immigration policy by saying that the UK will put “faces before passports” during the UK-Africa Investment Summit held this year.[5]
Although the form post-Brexit UK immigration policy will take is still unclear, it is projected that the UK would embrace a more open stance rather than a restrictive one in order to benefit from more skilled labour.[6]
Questions remain as to what the UK will be offering Africa in the coming years. At this point it is difficult to say if it would be able to challenge the important role that China has been playing in trade and infrastructure or attempt to be as active as its French counterpart in the continent. Due to the former colonial relationship the UK has with Africa, it is understandable that any intentions the UK may have of renewing relationships with African countries may be received with skepticism.
For more information, contact:
GRF Dalley & Partners
Lagos Office:
Gabsdall House (2nd – 4th Floor)
26, Igbosere Road
Port Harcourt Office:
13, Finima Street,
Old G.R.A.
Tel: +23414549824
Fax: +4420 8929 0855
Email: inq@grfdalleyandpartners.com
Website: www.grfdalleyandpartners.com
Follow us on social media:
Twitter: @GRFDALLEY
LinkedIn: /grfdalleyandpartners
[1] https://ec.europa.eu/commission/presscorner/detail/en/qanda_20_104
[2] https://www.bbc.com/news/uk-47213842
[3] https://foreignpolicy.com/2020/01/29/boris-johnsons-new-scramble-for-africa/
[4] https://nipc.gov.ng/2020/01/06/nigeria-again-tops-startup-investments-in-africa/
[5] https://www.bbc.com/news/uk-politics-51175628
[6] https://www.theguardian.com/commentisfree/2020/jan/29/brexit-britain-hard-line-immigration-openness
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