Intellectual property (IP) law might not be very popular among lawyers. But it is a strong area of specialisation for lawyers who are determined to ensure the growth of the creative industry. In this interview with YETUNDE AYOBAMI OJO, a Lagos-based lawyer, Uwa Ohiku, who is a senior partner with the law firm of Jackson, Etti and Edu examines the need to reform IP laws in the country. According to her, such can reposition the creative industry to play leading role.
How true is the belief that Intellectual Property litigations are rare?
Before you came this morning, one of our clients in South Africa sent us an email that we should file some patents for them; that their patent was being infringed in Nigeria. And as we speak, our firm is also representing another client in an infringement action that has to do with a machine used for recording people’s biometrics. We are representing the defendant in the suit. The Federal Government of Nigeria was also sued in the matter. But this machine we are talking about is already in the public domain; I mean it is now open to anybody who wants to reproduce it, and you therefore cannot have a patent right to it. But because of the way our patent laws operate, we have a lot of deficiencies. People could get all sorts of things through. So the claimant got a patent on the machine registered, on the strength of which he sued our client for an unbelievable amount of money, about N30 billion. Do you know that the trial judge granted his prayers? Now we are on appeal at the Court of Appeal. However, we’ve gotten the patent revoked. You know the problem is that Nigeria does not check anything. Anything you file, they just give you a document. The point is, yes, Nigerian courts are entertaining intellectual property matters and that is why we are still in practice.
What is your opinion about the Copy Right laws in Nigeria?
Well, I should say that our Copy Right Act is one of the best. But the others like the Trade Mark Act and the Patent and Design Act are simply archaic. These laws have been in force since 1938. Indeed, we are implementing a 1938 UK Act, while we are in 2015. It is ridiculous! To this end, there is a bill sitting at the National Assembly drafted to take care of the anachronisms in those outdated legislations. Government should pass that bill into law. Also the issue of enforcement should be strengthened. Penalties for infringement of the rights protected under the Act should be stiffer. A law that says infringement would only be punishable by an option of a fine of just N1000 lacks the ability to serve as a deterrent.
Since Intellectual Property practice is not really well-known in Nigeria, from where do IP lawyers get their clientele?
About 90 percent of our clients are international clients. Indeed, people don’t understand the importance of IP in driving the economy. All the rights that go around branding have to do with IP. IP is an intangible right, but the value is unbelievable. When people know the importance of IP, when they understand that it is the driver of any thriving economy; when they understand that it brings in investments into the country, then the authorities would begin to see need to update our laws to take advantage of the inherent value of intellectual property. Take India, for example. That country understands the value of Intellectual Property and how to put it to use in advancing the betterment of their society. India refused to grant a patent right in respect of an AIDS drug to a giant pharmaceutical company. They actually refused to grant them a second patent for an improved AIDS medication, because they were trying to protect their country, their reasoning being, if you are not going to make the drugs available at an affordable rate to our people, why should we grant you patent on the drug. So, they decided to open their market so that all the generic drugs for AIDS would come in to allow their people look into their composition and reproduce them for cheap and easy access. I’m, afraid to say that many of those in authority in our country don’t think that way.
Is the market for Nigeria’s legal services one that can be measured in terms of its contribution to the nation’s GDP?
I can’t make that quantification right away, but I know it’s huge. Nigeria right now is the toast of many investors. For a number of years, the South African economy was rated way ahead of ours. But now Nigeria is rated the biggest economy in Africa. And the projections are even better. There are all sorts of private initiatives taking place. So a lot of money is being pumped into Nigeria for projects. Look at the hospitality industry, for example. It is growing in leaps and bounds. Marriot is building; Intercontinental is building, among many others. The real estate market is also booming. Look at the Lekki corridor right up to the Free Zone. The Dangotes and co are building. It is amazing! In all of the transactions arising from them, lawyers are called in to tidy negotiations and seal up deals, mega deals, because they know that if you don’t sort out your legal end, you would run into terrible trouble. Regarding the legal services market, we are just scratching the surface, and there is enough to go round.
Despite the great promise of the legal services market, what would you say accounts for the high rate of unemployment or indeed under-employment among lawyers?
I think that today’s generation of lawyers is too much in a hurry. Take my humble self as an example. A lot of people have said this woman is crazy. She has been in one law firm for donkey years. But they don’t understand. If you tell young people stay in one organization for thirty years and contribute in building it, they would ask you, ‘Are you crazy?’ I did 89’ to 96, i.e. 7years, in Bentley and Edu before I left with my colleagues to establish this current practice. Of course I was one of the partners when we started. There is nothing, for example, stopping me from leaving, like one of the partners we started with did. He left. I mean there is nothing stopping me from leaving and going to set up a practice on my own. The point I’m making is that many lawyers, even some old ones in the Bar, are not patient. They are in a hurry. They don’t want to remain in a place for a long time. I tell young lawyers, get into a firm first and be more content with learning the practice than making money in a hurry. Stay in one place and learn first than going to set up one “something and co.” What do you know? I make bold to say, they don’t teach you much in the universities; in fact they don’t teach you anything in Law School.
Real learning starts after Law School when you get into a chamber and you are given a file to look at a matter and advice so and so client. Law is called a learned profession because the learning process in practice never ceases. You are always learning. In our firm here, much of what I now do is mentoring; I am constantly teaching the juniors. I am busy correcting opinions, and imparting knowledge. It sounds ridiculous when I say this, but the truth is that when I started working as a lawyer in 1986 I was earning N600.00 (Six Hundred Naira) a month. But now, if you tell one young lad come and do internship, all they are thinking is, ‘so how much are they going to give me for internship?’ But I tell them, ‘look I’m being kind to you. I just want to teach you the trade.’ So in our firm, we have what we call pupil counsels, because you are just learning. Yes, one or two could be quite brilliant and may be able to find their feet a bit faster, but the ordinary trend out there is that the beginning is often difficult. We have had someone who came to work with us. He eventually left to set up a practice of his own, but he couldn’t make any head way. He came back and remained with us for another four years. But when he left this time, he did not go to set up his own practice. Rather he joined another established firm, because he’d learnt by bitter experience that it could be quite rough out there. Otherwise, may be you just want to be doing the thing some lawyers do around Magistrate Courts, collecting small briefs just to keep body and soul together. But if you want to make your mark and win big-ticket briefs, then you need the experience. You have to bring yourself down to learn the trade. So, here in our firm, we expose our people to a lot of experience. We teach a lot; we learn a lot in Jack, Etti and Edu; we don’t hoard knowledge. We the older ones are not going to be here forever. We are going to leave someday; so we are working to make sure we pass the baton, and that the baton we are passing on is going to people who are competent.
As a lawyer whose practice doesn’t really involve litigation, what would you say to those who believe that a lawyer who’s not into litigation is not really a lawyer?
There are people who you even expect to be more enlightened, but you hear them say ‘you don’t go to court, what sort of lawyer are you?’ And I say to them Intellectual Property is my core area of practice. It is an aspect of Commercial Law. I advise clients on their rights in Nigeria to ensure that those rights are protected. And we also tell people that it’s better to resolve commercial disputes via the ADR route than litigation. So, we encourage our clients to explore ADR. The court shouldn’t be the first port of call when a commercial dispute arises.
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