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Preserving Intellectual Property




By Kelly Elisha

Intellectual Property in simple definition is the creation of human mind. It is a tangible property of human reasoning.

In Nigeria, intellectual property is governed by three distinct statutes. They are the Copyright Act, Patent and Designs Act and Trademarks Act.

The nexus among the statutes is the protection of the intellectual works of an individual. Where such right is tampered with by means of plagiarism or reproduction of such work without authorization, the property owner reserves the liberty to ventilate his rights in the court.

That was what the management of TV XTRA Production Limited did by initiating an action in June 2013 against the National Universities Commission and Zain Nigeria.

Its case was that it developed a programme concept titled Nigerian University Challenge and wrote tge National Universities Commission for collaboration to run the Programme on NUC approved tertiary institutions.

Rather than grant the request, the NUC declined the request, nade a Volte-Face and approved Zain African Challenge in favor of Zain Nigeria.

In content and concept, Zain African Challenge is in Pari material, the same with the original works called Universities Challenge.

The NUC which was the first respondent in the suit failed to make dilligent defense of the claim formulated against it.

Construeing the attitude of the NUC, Justice I.E Ekwo held and i quote: “I hereby Interprete the actions of Learned Counsel for the 1st defendant as meaning that the ‘NUC’ has admitted the case of the plaintiff.” In simple term, the NUC abandoned the defense and slept on its right.

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In that situation, the NUC, fully aware of the consequences of its action could not have responsibly expected a favorable judgement.

The court has rightly rejected the defense of Zain Nigeria and held that TV XTRA copiously proved its ownership of the copyright of the programme Nigerian University Challenge with documentary evidence.

Notable is the pronouncement of the court that it is a person who has registered ownership of copyright in Nigeria, and in this instant case, with the Nigerian Copyright Commission, can excercise all the rights that accrue to the registration exclusively. This is consistent with the precedent already established by the supreme court.

The exclusive right in this regard are:
1. Moral rights which protect the reputation and integrity of the author.

2. Economic rights which give the author the privilege to earn profit by direct or indirect exploitation of his work.

Justice Ekwo is also consistently right that the exercise of copyright in a work in Nigeria is the exclusive right of the owner to control the reproduction of the work in any material form or adaptation.

Having come to this conclusion, the court made a declaration that the approval by the NUC of the programme called Zain Africa Challenge in favour of Zain Nigeria is an infringement of the copyright of TV Xtra.

Apart from precluding Zain Nigeria from producing, airing and marketing the programme, the court compelled the NUC to endorse and approve University Challenge in favour of TV Xtra.

In the wisdom of the court, this infringement should attract punitive damages. It therefore ordered the NUC and Zain to pay Five Hundred Million Naira as special damages and Three Million Naira as the cost of the action.

It is customary villain in a case to seek to overturn the decision of a high court in the Court of Appeal raising the issue of fair hearing.

In this instant case the NUC’s counsel made appearance only to disappear in perpetuity. Justice Ekwo specifically noted the absence of the Counsel and there is no doubt that the argument of fair hearing in the face of self-inflicted absence, will come to no issue.

The way the NUC approached the case did not in any bit show it as a self-respecting institution with a pedigree for scholarship.

It is a notorious fact that Zain has sold its asset and liability to Airtel International. By simple legal deduction, Airtel has taken over Zain’s liability which includes the judgement debt.

The credible lesson organisations and individuals should learn from the instant action is to respect intellectual property rights in whatever form the are created.


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