News from the Manor Vol 16

  1. Commitment on Investment in Access to Essential Medicines Signed at UNCTAD14: On July 21, 2016, UNAIDS and the UN Conference on Trade and Development (UNCTAD), the African Union (AU), and the Kenyan and South African governments signed a commitment at the 14th session of UNCTAD to facilitate investment in Africa’s pharmaceutical industry in order to boost the sector’s production and make available essential medicines for millions of needy people. Nairobi StatementThe commitment named Nairobi Statement on Investment in Access to Medicines aims at spurring, particularly, the manufacture of antiretroviral medicines in the continent worst affected by HIV and AIDS. The commitment is in line with the 2030 UN Sustainable Development Goals (SDGs) on health, which emphasises access to essential medicines for all (No 3), innovation and domestic technology development (No 9) and  on international cooperation and policy coherence (No 17).
  2. SAP/SEP Suffers a Huge Blow: A joint Australia-New Zealand proposal for a unified patent application and examination process appears to have been mooted following its rejection by the New Zealand Parliament’s Commerce Committee on the basis that the purported benefits of the mechanisms either do not exist, or are outweighed by the costs. The proposed single application process (SAP), and single examination process (SEP), was simple – to allow applicants wanting to obtain patents in both Australia and New Zealand to file one common application which would be subject to search and examination by an examiner either at IP Australia or at the Intellectual Property Office of New Zealand (IPONZ).  More on that here.
  3. Marrakesh Treaty to enter into force soon: Canada recently became the key 20th nation to accede to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which will bring the Treaty into force by September 30, 2016. Stevie Wonder, a longtime supporter of the Treaty has this to say.

Lazy…not so lazy Saturday Reads

  1. I am still confused by this complaint sent to IP Factor. The more I read it, the more perplexed I am. Some lawyers ordered lunch to their office for themselves and the client, and invoiced the client. I am almost certain that will never happen in Nigeria. You certainly don’t want your clients thinking you’re miserly.
  2. This is courtesy the Lady’s father – Citigroup Inc (C.N) has sued AT&T Inc (T.N) for the use of “thanks” and “AT&T thanks” in a new customer loyalty program which infringes the former’s trademark rights to the phrase “thankyou”.*sigh* More on that here and here anyway.
  3. Is there a thin line between ‘trademark enforcement’ and ‘trademark bullying’? Find out here.
  4. If the allegation of sampling levelled against Justin Beiber and producer, Skrillex (as well as the other songwriters of ‘Sorry’) by Indie artist, Casey Dienel (aka White Hinterland) were instituted in Australia, here is what the Courts will consider. The song by Dienel is ‘Ring the Bell’.
  5. On patent marking in Australia and its effectiveness.
  6. I absolutely enjoyed reading this post on Cannibalism, Branding and Market Segmentation.

“They should pay GEJ copyright for his ideas!”

The above statement was made by the former Special Assistant on New Media to the immediate past president of the Federal Republic of Nigeria. It’s one statement that most IP practitioners have heard and certainly brings about varied reactions on their part – cringe on the inside; subject the speaker to a lecture; smile, shake their heads, walk away and maybe question their understanding of the idea-expression dichotomy.

The Lady recalls the chat she had prior to getting her first job. Her soon to be boss asked about her thoughts on the idea-expression dichotomy and mumble away did the Lady. To put things in perspective, the Lady was an undergraduate at the time and the boss – an accomplished author and copyright lecturer. She got the job alright, but most importantly, she learnt about the thin line between ideas and expression as far as copyright is concerned.

For the record, ideas are NOT protected by copyright. It is the expression of those ideas that are protected by copyright. And no, you cannot patent ideas either. Below is a simple flowchart that explains the idea-expression dichotomy and how ideas can be transformed in order to enjoy IP protection.

Ideas

It is not uncommon for someone to express an idea at a meeting and for another to say ‘oh, I was just thinking the same’. The distinction often lies in how the ideas are expressed or the manner of execution. It would therefore be unfair and inimical to creativity if the first to register an idea was granted a monopoly to the exclusion of others. Hence, GEJ cannot be said to have copyright in his ideas, much more receive payment for it.

PS: Facts are also not protected by copyright


*Creative works encompass literary, dramatic and musical works as well as cinematograph films, sound recordings and broadcasts.

**Inventions may either be a product (e.g. a drug) or a process (e.g. how the drug is made).

Lazy…not so lazy Saturday Reads

  1. As we celebrate the World IP Day this month,WIPO has published a special issue of its WIPO Magazine. This issue, the second this year, offers a range of perspectives onWorld IP Day 2016
    the opportunities, the challenges, and the role of intellectual property in the rapidly evolving digital marketplace.
  2. This post – Cost of Patent Prosecution, provides some insight into the troubles one may encounter in filing patents and responding to queries, which of course play a huge role in determining the associated costs.
  3. is curious about the ownership of these images of Kanye kissing himself? Kanye 2Some background information by Jen Lewis – “I Photoshopped Kanye Kissing Himself And A Famous Artist Reportedly Made $100,000 Off It”.Kanye1
  4. Eleonora Rosati discusses the impact of four major legal copyright cases (NLA vs Meltwater & PRCA; Infopaq I & Infopaq II; Svensson vs Retriever; and Fox News vs TVEyes) on the media monitoring industry here.
  5. WIPO’s Conference on Global Digital Content Market held between April 20-22, in Geneva. Catch up on happenings on twitter using the #digicontent2016 hashtag

Lazy…not so lazy Saturday Reads

  1. On rating IP Firms – which is the leading IP firm in Nigeria Israel?
  2. I am almost certain that Nigerian IP practitioners can relate with this Brazilian IP Lawyer’s frustrations with delays at the Brazilian PTO.
  3. The recent ruling by a Swedish Supreme Court on Freedom of Panorama has raised some eyebrows. Eleonora has some thoughts on the decision as does Wikimedia.
  4. Quite a long read for this one. The EUIPO released an assessment of how IP is perceived by people between the ages of 15 and 24. Lazy read version aka Executive Summary here or just read this.
  5. This had me chuckling particularly the analysis of the arguments in favour of registering the wordmark booking.com in Israel. The author’s last line? Bonkers!

Lazy…not so lazy Saturday Reads

  1. Last week, the Lady highlighted CIPA and ITMA‘s commentary on BREXIT and possible impacts on IP in the UK . Well, the statistics lovers at Aistemos are asking for data to back these claims.
  2. A brief lesson on Piracy Paradox and the fashion industry here.
  3. This review is a rather long read, but very useful if you plan to or have organised IP conferences in the past.
  4. Content is a huge concern of most bloggers and this post by Fashion law encapsulates that. This may not be a concern for IP bloggers though.
  5. A while back, the Lady wrote about copyright and tattoos. This article also asks if tattoos are protected by copyright with reference to the case of  S. V. Whitmill v. Warner Bros.
  6. Curious about CopyrightX?

Building a Case for the Nigerian Copyright e-Registration System (NCeRS)

A while back, a colleague expressed her interest in registering some of her literary works under the Nigerian Copyright e-Registration System (NCeRS) to which the Lady mumbled some incoherent words of discouragement. Why? How about a quick introduction to the NCeRS.

Background

The establishment of the NCeRS has its backing in Section 34 (1) (e) of the Nigerian Copyright Act, which charges the Nigerian Copyright Commission (NCC) with the responsibility of maintaining an effective data bank on authors and their works. Unlike the US, protection of copyright in Nigeria is not subject to formalities such as mandatory deposit. Section 3 of the Draft Copyright Bill 2015* reiterates this point. The Draft Bill, however, proposes to introduce a register of works under Section 73:

(2) Without prejudice to the sections conferring copyright under this Act, all works eligible for copyright protection may be registered in the Register upon an application made in the prescribed form by or on behalf of the author, owner, assignee or exclusive licensee of the work. (emphasis mine)

Promises (as contained on the NCeRS website)

The certificate of registration and other documents relating to the application for registration can be used in court as evidence of ownership or proof of original content of the work.

The NCeRS offers additional advantage of:

  1. Documentation of your creation from any part of the world;
  2. Full protection of copyright in all countries signatory to the Berne Convention, and other International Instruments which Nigeria is signatory;
  3. Searchability of the NCeRS for information relating to any copyright work;
  4. Flexible payment for services offered by the Commission; and
  5. Efficiency and prompt delivery for service requested.

The Lady’s Experience with the NCeRS

The Lady has dealt with the NCeRS in various capacities. The certificate issued is merely prima facie evidence of the facts contained on it. It does not grant copyright in any form and does not guarantee ownership of copyright in the work referred to. In other words, the NCC can only guarantee that you have claimed copyright ownership of the work concerned. It cannot give an opinion as to whether or not you actually own the work. So, if there was an allegation of infringement and you chose to tender the certificate in evidence and invite the NCC, the Commission is merely going to raise its hands and say ‘Well, (s)he informed us of their claim to copyright in this work, but we cannot confirm whether or not this is true’.  Does not do much for your case if you ask the Lady.

Hence, the Lady’s response to her colleague. Ownership of copyright is tricky to prove, hence the presumption of ownership in the (registered) author.

Second thoughts on the NCeRS

A recent foray into the world of finance and IP reveals the NCeRS may provide a good repository system after all especially where advantage (c) is concerned. Section 11 of the Act provides for the grant of an assignment or licences in favour of copyrighted works. Whereas a non-exclusive licence may be created orally, written or inferred from conduct, the grant of an exclusive licence or an assignment can only be valid if put into writing. The Act is however, silent on the perfection and enforcement of the ensuing agreement created, perhaps because copyright is an unregistered right.

Section 197 of the Companies and Allied Matters Act (CAMA), however, provides for the registration of charges on goodwill, patents or a licence under a patent, trademarks, copyright or a licence under a copyright. Failure to do so within 90 days of creation will render such charge void and immediate repayment of the money secured. The Act further allows for the entry of satisfaction of charges relating to a registered charge in the register as well as the rectification of the register resulting from an omission or misstatement as directed by the court (Sections 204-205).

Thus, if you were to deal with a company’s IP, a search at the Corporate Affairs Commission  would reveal any charges over their IP. Good for the companies. What about individually owned IP? The Copyright Act is silent on registration of assignment or licences with the NCC. So also the NCeRS, although it claims that ‘the information and data contained in the Notification database offers reliable rights management information to members of the public and prospective licensees to the work’.

The absence of a provision on registration of security transactions over copyright makes it difficult to conduct due diligence over the work in question. This is especially so for individually owned IP. NCC should consider encouraging the registration of security transactions over copyright on the NCeRS platform. (If the Lady recalls accurately, there might be a provision on the application form for this, but this needs to extend beyond security transactions at the point of registration.)

Seeing as the Lady has digressed into the subject of copyright as an asset, she may as well end with an extract from her thesis:

When one considers that Section 197 of CAMA retains its essence from 1990 when the Act was originally enacted, the position asserted earlier about the omission of security interests (SI) in the Copyright Act (CA) during the 1999 amendment becomes more glaring. It is possible that the inclusion of SI in the CA was overlooked in subsequent amendments since the CAMA already makes provision for it.** The impact of this on natural persons owning copyright and seeking to collateralize it was therefore overlooked as CAMA relates only to artificial persons – companies duly incorporated under the Act. As we will see, this poses no problem under the NCEILS***, as a Certificate of Incorporation is one of the required documents from applicants. In other words, the place of an independent producer is still not contemplated in the scheme of things. Perhaps, there is an assumption that producers must as of necessity, own production companies.


* Since the deadline for the submission of comments on the Draft Bill, mum has been the word from NCC. Both the official website and reform websites are down as well.

** The Draft Copyright Bill is also silent on SI.

***Nigerian Creative and Entertainment Industry Stimulation Loan Scheme

IP and the Church

The Lady has become a tad bit obsessed with Church hence this article and other articles in another part of blogosphere. Must have been the time in Europe that fanned her obsession with the Church. By ‘the Church’, she means the Orthodox Church and more specifically, the Anglican Communion. Stained glasses formed part of my earliest memories of the Church, it’s a shame that most new Church buildings do not have them anymore. The Lady had such great plans of learning the art of glass painting at some Church in England, but alas life!

If you have ever attended an Orthodox Church, you can tell of its richness in culture, arts and traditions. This effect is multiplied when you have been in old buildings like St Paul’s Cathedral and the Westminster Abbey. It is akin to worshipping in history. At least, that was how the Lady felt and still feels. Truth be told, the Lady attended services in this Churches more out of curiosity than the service itself. Since then, the Lady has come to appreciate the Church more and realise the enormous Intellectual Property it sits on.

Trademarks and a bit of Copyright: The name of the Church (parishes) may qualify as trademarks where unique and distinctive, but the Lady doubts that would be the case for Churches named after Saints or revered figures. In the Abuja Diocese for instance, there are two St Matthew’s Anglican Churches. The structures are even somewhat similar. If the names do not qualify, logos such as these will qualify.

Church of Nigeria
Church of Nigeria
Diocese of Lagos West
Diocese of Lagos West

The Lady is aware that some Churches invite submissions for this, but is unaware how the attached rights are dealt with. Nevertheless, such submissions would typically fall under commissioned works for which first ownership of copyright automatically belongs to the author (artist). In the interest of the Church, it should endeavour to have the copyright transferred to itself by contract. It would be awkward for the Church to register a mark for which it does not own the copyright. Use of Church logos are commonplace in publications by the Clergy. For such use, the Lady suggests licensing agreements.

The Church also uses numerous symbols in its order of worship.The protection of these symbols often straddle copyright, trademarks and designs law.

Book of Common Prayer
Anglican Book of Common Prayer

Copyright: The history of the Church is contained in numerous documents and publications, some of which have fallen out of copyright protection. Nevertheless, this Book of Common Prayer (2007) will be protected by copyright as a literary work – compilation in this instance. It does not matter that the content is not original having originated decades ago and the use widespread.

The hymns! You know that’s the best part of the Church, right? The Lady attended a different Church recently and was ready to belt off to popular hymn. Alas, the lyrics had been altered. A remix, you may choose to call it. The Lady wondered if that Church obtained permission from the right-holders. The melody and lyrics of these hymns are protected by copyright. Even when the economic rights lapse, the author* retains moral rights of authorship and integrity. These moral rights are perpetual, inalienable and imprescriptible.

CH
Church Hymnal – Acknowledgment of Copyright Holders

The copyright symbol and notices contained in the Church Hymnal form part of the Lady’s earliest introduction to IP. Compared to the Church Hymnal, this other Church’s hymnal did not contain any copyright notices nor acknowledgments. It appears that the Church (okay, this is getting confusing) takes copyright serious, because it identifies the original composers, alterations made to the lyrics and by whom.

CH1
Church Hymnal

Sermons are also protected as literary works. Priests are often employed by the Church in full time or part time roles. Thus, sermons prepared by them are subject to Section 10 of the Copyright Act, which deals with works made in the course of employment. The law is that copyright belongs to the Priests in the first instance unless otherwise stipulated in writing under a contract. Priests who sell compilations of their sermons are therefore in their right unless their contract of employment otherwise stipulates so.

Section 10 will also apply to recordings made of the service and photographs taken. While there are no laws on data and privacy in Nigeria, the Lady is of the opinion that consent should be obtained for photographs in particular. Some would argue implied consent, but the Lady still shoos photographers away in Church and at other events.

With copyright and sale of works comes tax issues in which the Lady is not sufficiently versed and would therefore refer you to this and this.

The stained glasses I mentioned earlier and other art works are also subject to copyright protection. So next time you are in a religious place of worship, take some time to consider works that can be protected as IP.


*This includes his heirs and successors.

Lazy…not so lazy Saturday Reads

Sometimes, the Lady comes across articles (IP-related, of course), that are too good to keep to herself. Inspired by some of her favourite bloggers, the Lady has decided to curate these articles for your reading pleasure. You may want to grab a cuppa tea or some ice cold drink depending on the weather while you read away.

  1. This was my favourite post this week. It had me chanting #DirtyData all day and even now, as I type. I bet you will be chanting #DirtyData by the time you are done reading.
  2. Now, immediately I saw the title, I thought about our very own PMRS/COSON v MCSN. This, however, is a tale of two collecting societies in Trinidad and Tobago.
  3. Can you identify with any of these branding mistakes? I know I can. It’s also useful advice for your clients.
  4. I cannot ignore a post on Monsato. For those familiar with Monsato or who are curious about the company, here are two updates from India. This came first and then Matthews George decided to play devil’s advocate with this post.
  5. If you read my post on bioprinting, you’d know that I am fascinated with 3-D printing. In US, the Supreme Court has been approached to provide some clarity on copyrightable aspects of 3-D printing.
  6. For fashion lovers, here is some perspective on how fashion intersects with IP.
  7. I could literally feel the author’s excitement in having his book ‘featured’ in a movie. Look out for the comment on incidental inclusion.
  8. You know the Lady loves the  Aistemos team right? Here’s another one. This time around, it is about patent statistics as a measure of a country’s innovation and economic growth.
  9. Could not decide my favourite on the QMJIP blog. Read all, maybe?

Enjoy…