Introduction

With the rise in awareness of intellectual property, particularly in Nigeria, the academic milieu has come under intense scrutiny over the years, with increased interest in determining the ownership of intellectual and industrial works that evolved under academic settings, given that the academic milieu in Nigeria is one of such notable areas where intellectual property finds great expression. However, it has also been an area replete with controversies and uncertainties with regard to ownership of works evolved therein, particularly as extant laws governing the field of intellectual property leave room for questioning and arguments. This work investigates the ownership of intellectual creations in academic settings, with a particular emphasis on student creations, through a comprehensive study of Nigerian intellectual property law, with due regard for the various types of intellectual property extant within Nigeria as a sovereign country.

An Overview of Intellectual Property Law: A Nigerian Perspective

As a prefatory remark, intellectual property law generally has the primary aim of protecting an individual's or corporation's creations of the mind by preventing other persons from "reaping the fruits of another’s labour." As a consequence, it keeps an eye on the rights that result from creativity, inventiveness, and human intellect. Hence, "intellectual property" as a term encapsulates creations of the intellect concerning which the law ascribes exclusive rights of appropriation to the designated owners.1

As regards Nigeria, almost all areas of human endeavour relating to commercial and artistic activities impinge on intellectual property law as this determines the creation and ownership of rights to such works, which by nature are literary, artistic, innovative, discoveries, inventions, and designs. The field of intellectual property is regulated by the cumulative provisions of the Copyright Act, complemented in function by the Copyright (Amendment) Decree 1992, the Copyright (Video Rental) Regulations 1999, and the Copyright Amendment Decree 1999; the Trade Marks Act; the Patents and Designs Act; the Patents Rules; and the Designs Rules.

Noteworthy in this respect are four distinctive types of intellectual property that have evolved under Nigerian intellectual property law. This refers:

1. Copyright: Copyright, as a type of intellectual property, is deemed the exclusive and transferable legal right given to the author of a literary, artistic, or musical work to print, publish, perform, license, or assign the work for a fixed period of years. It is noteworthy that copyright is governed essentially by the Copyright Act.2

Copyright, against all other types of intellectual property, has the distinguishing feature of applying automatically to work from the moment the work is created, and therefore, the work is not required to be registered to be protected by the Nigerian Copyright Commission (NCC), which is an agency created by the Copyright Act to be responsible for all matters affecting copyright in Nigeria.

2. Trademarks: Trademarks, as a distinct type of intellectual property, protect words, names, and symbols created by organisations and individuals to identify the source and to distinguish their products and services from those of others. Trademarks under extant Nigerian laws are regulated by the Trade Marks Act3 and have received English Common Law in the judicial construction of unregistered trademarks.

3. Patents: Patents refer to the exclusive monopolistic nature of rights conferred on a person (corporate or natural) in respect of an invention. The Patents and Designs Act4 regulates the administration of the rights of a patent in Nigeria

4. Industrial Designs: Section 12 of the Patents and Designs Act5 describes an "industrial design" as any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, if it is intended by the creator to be used as a model or pattern to be multiplied by an industrial process and is not intended solely to obtain a technical result.

Generally, industrial designs are registrable if they are new and are not contrary to public order or morality. Designs made available to the public anywhere and at any time before the date of registration are not considered to be new.

Rules and Principles in Determining Ownership of the Right to Intellectual Property in Nigeria

1. Intellectual Property Copyright: As a general rule, the copyright in any original work falling within the provisions of Section 1 of the Copyright Act is initially owned by the creator of the work, though this is not always the case as several rules have been set for the determination of the effective owner of copyright in works. Hence, it has been determined that a work must be reasonably original for it to be eligible for copyright under the cumulative provisions of the Copyright Act. This rule was further articulated in Ladbroke Ltd v. Hill,6 where the Court held, inter alia, that "the work must not be copied."

"It must have originated from the author’s independent skill and judgment." However, it is important to note that originality in this context does not refer to novel or new works that have never been seen or heard of, as nothing is new under the sun. As such, a work can be original notwithstanding the fact that it is not a novel. Hence the famous maxim, "A copyist cannot enjoy copyright." Furthermore, the principle of sufficient effort has also evolved, as was settled in Offery v. Chief S. O. Ola & Ors,7 where the plaintiff designed a school record book titled "NEW ERA SCHEME OF WORK AND RECORD BOOK." Some years later, he noticed that the defendants were selling some similar record books. The court determined that the book was merely horizontal and vertical lines from pages 1 to 52 and that there was no evidence to show that sufficient effort was expended in the production of the work as such, it is not eligible for copyright. Furthermore, the courts have ruled that copyright exists not in ideas but in the form in which they are expressed. Hence, to be accorded protection, a literary, musical, or artistic work must be fixed in a definite medium of expression from which it can be communicated or perceived. (See Donoghue V. Allied

Newspapers Ltd.;8

2. Intellectual Property Patent Rights: Under patent rights, a paramount condition precedent to the enjoyment of the right is the nature of the work, which must be a patentable invention as this area of intellectual property law deals solely with inventions. To this extent, for a work to be deemed patentable, it must be relatively new. Newness in this context is conceived as not forming part of the "state of the art" and not having been previously published in any form. The principle of newness was heavily relied upon in the case of Van der Lely v. Bamfords,9 where the plaintiff’s claim was for a hay-raking machine with the special feature of turning upon contact with the ground. The invention was held to have been anticipated by a photograph in a journal that showed this feature and hence lacked the essential quality of being new. Furthermore, for a work to be deemed patentable, the courts have evolved the rule that such a work must proceed from an "inventive activity." By this rule, it is meant that the invention sought to be patented must not be commonplace. The inventor must have intelligently exercised his inventive faculty.

Hence this question looks at the fact that although the invention is new, it is not innovative. (See Hill v. Evans10). Finally, an invention that is a candidate for a patent must also possess the capability of industrial application. Industrial application for this purpose is defined by Section 1(2) of the Patents and Designs Act as an invention that can be manufactured or used in any kind of industry, including agriculture. Simply put, such an invention must be useful. If what the person invented is impressive but useless, he would not be granted a patent.

3. Intellectual Property Trademark Rights: Under Nigerian Trademark Laws, registration or ascription of ownership is divided into two parts, deemed Parts A and B. Part A requires that the name intended to be trademarked be true, and it must not suggest that it emanates from another person; that the applicant must sign his application; that the words be invented as distinct from being misspelt and having no direct reference to the character or quality of goods; and that they have a distinctive mark.

Part B, on the other hand, applies to works not eligible for a trademark under Part A. Hence, for a work to be trademarked under Part B, it has to be distinctive or capable of being distinctive with prolonged use. This means that the mark must be capable of distinguishing the goods that emanate from the proprietor in the course of trade.

4. Intellectual Property Industrial Design Rights: Congruently, the requirements for an industrial design to be registered are set forth under the Patents and Designs Act. To this extent, there is an outstanding requirement of newness and conformity with public order and morality, as summarily established by Section 13 of the Patents and Designs Act. Regarding its novelty, the underlying assumption is that it should not have been published anywhere else. Hence, in Chukwumereije V. Patkum Industries11, protection was declined when the court found that the goods were already being sold in the market by the plaintiff. Note that minor or inessential improvements from an earlier invention would not satisfy the requirement of newness. On the other hand, the test for conformity to public order and public morality is objective and flexible, as these factors are affected by time, place, and societal value.

Exceptional Circumstances and Limitations as Established Under Nigerian Laws

1. Copyright: Copyrights are generally owned by the people who create the works of expression, with some important exceptions. Hence, if a work is created by an employee or worker in the course of his or her employment, the employer owns the copyright. This also follows when a contractual agreement is entered into by an independent contractor and his employer, whereby the independent contractor signs a written agreement stating that the work shall be "made for hire." The independent contractor's work would then be owned by the commissioning person or organization.

2. Patents: A general limitation to the enjoyment of patent rights is the condition under which the work evolved, notably the course of employment. In determining whether an invention was made in the course of employment, one has to settle whether the employee provided his materials or used the materials and provisions of the employees, whether the work was done within the scope and time of employment or in the claimant’s spare time, and whether the claimant was employed to create the invention.

Under common law, inventions created in the course of employment are generally regarded as those of the employer. As in Patchett V. Sterling,12 Lord Simmonds noted that it is implied that the result of work done by one employed under a contract of service belongs to his employer.

Section 2(4) of the Patents and Designs Act re-echoes the common law position by stating that:

"Where an invention is made in the course of employment or the execution of a contract for the performance of specified work, the right to a patent in the invention is vested in the employer or, as the case may be, in the person who commissioned the work."

However, as compensation, it further provides that if "the invention is of exceptional importance, the inventor is entitled to fair remuneration taking into account his salary and the importance of the invention."

3. Industrial Design: Generally, under common law, the right to designs created in the course of employment was vested in the employer, as settled in Lazarus v. Charles.13 In the Equator Manufacturing Case, the court further observed that the employee is not entitled to use the design even after he resigns as the salary is enough.

Further, under the Patents and Design Act, the right is generally vested in the employer, except if a term to the contrary is provided in the contract of employment. Under Section 14(4) of the act, the employee shall be entitled to additional remuneration where the contract of employment does not require the employee to exercise any creative activity but he has, in creating the design, used data or means that his employer has put at his disposal.

Academic Setting as a Deciding Difference: Too Much Fuss About Nothing?

Concerning academic works and publications, a cursory examination of the various types of intellectual property that evolved and are recognised in Nigeria, combined with a combined examination of the existing laws, reveals that these works of an academic nature have the academic setting as the sole distinguishing factor against all other works in the society. Hence, an examination of the extent to which this difference serves as a deciding factor in the determination of ownership or a claim to the right of intellectual property in this kind of work is incumbent. To this extent, it is noteworthy that Nigerian intellectual property law does not distinguish works evolved in academic milieus from every other work eligible for registration under any of the types of intellectual property recognised within Nigeria. However, the question that has remained unanswered over time is the status of students amongst all other classes of persons forming part of the academic milieu, which include employees and workers (academics and non-academics) and employers (government and private or corporate individuals). This is particularly important as it is a settled principle that the status of employment serves as a determining factor in the ownership of intellectual property rights in Nigeria and elsewhere.

Hence, in determining the status of students as either employees or not, recourse to labour law is unavoidable. Hence, an employee has been defined as someone who has the obligation to perform certain duties for or on behalf of his employer in return for wages or salary or some other form of tangible consideration, while a worker is someone who works for an employee, whether under a contract of employment or other types of contract, but is not self-employed, whether the contract is for manual labour or clerical work, is expressed or implied, oral or written, and whether it is a contract of service or a contract personally to execute any work. This is in tandem with the interpretative provisions of Section 73 of the Employee’s Compensation Act, 201014 and that of Section 91 of the Labour Act.15

Flowing from the foregoing, it is reasonably settled that a student cannot be construed to be a worker nor an employee and therefore cannot have his right to ownership of whatsoever creation of his conferred on his institution of learning or on the owner of the institution of learning by the mere fact of having been evolved in an academic setting. However, where it is settled through a binding contractual agreement that such a student has to waive his right to ownership of any creation as part of his eligibility for registration under Nigerian intellectual property law before admission into the institution of learning, then such a student loses the right and claim to ownership of such work.

Conclusion

The field of intellectual property law in Nigeria is very broad and affects almost all aspects of human activities, with the academic milieu securing a lot of arguments relating to the ownership of works evolved in such a setting; arguments that have mostly been tied to the ambiguous status of the creators of these works, i.e., the students. However, through an extensive study, one would appreciate the little difference the academic setting creates as a deciding factor in determining the ownership of academic creative works under Nigerian intellectual property law.

References

1 Johnson, J., Akani, N. & Godwill, P. (2020). Infringement of the Intellectual Property Rights Under Copyrights Act Cap C28 LFN 2004: A Human Rights Violation.

2 Copyright Act, Cap. C28 Laws of the Federal Republic of Nigeria, 2004

3 Trade Marks Act, Cap T13, Laws of the Federal Republic of Nigeria, 2004

4 Patents and Designs Act, Cap P2 Laws of the Federal Republic of Nigeria, 2004.

5 Ibid.

6 Ladbroke Ltd. V. Hill [1964] 1 W.L.R. 273

7 Offery V. Chief S. O. Ola & Ors., 12 NIPJD [HC. 1969]. H/23/1968

8 Donoghue v. Allied Newspapers Ltd. (1937) 3 All ER 503

9 Van der Lely v. Bamfords [1960] 7 R.P.C. 196

10 Hill v. Evans, 258 S.W. 2d 917

11 Chukwumereije V. Patkum Industries [1989] Imm AR 603

12 Patchet V. Sterling, [1955] 1 All E.R. 369 (H.L.)

13 Lazarus v. Charles, 12 Misc. 575 (N.Y. City Ct. 1895).

14 Employee’s Compensation Act, 2010

15 Labour Act, CAP L1, Laws of the Federal Republic of Nigeria, 2004