Wednesday, 4 July 2018

Chijioke Ifeoma Okorie

The Regulator v The Regulated: Governance Issues of Nigerian music collecting society, COSON continues

Between 2014 and 2017, the IPKat’s Merpel provided the IP community and the general public with information and insights from the unrest and management issues at the European Patent Office (EPO). In that same spirit, AfroLeopa has taken it upon herself to provide readers of this blog with relevant information regarding the governance issues of Nigeria’s major collecting society, Collecting Society of Nigeria (COSON).

Last month, AfroLeopa attended a press conference co-convened by the president of the Association of Music Business Professionals (AM.B-Pro), Mr. Edi Lawani under the auspices of Concerned Stakeholders’ Forum. The majority of the music artists and COSON members, who spoke at the event, aligned themselves with the statements made by Mr. Lawani urging the NCC to lift the suspension of COSON’s licence in the interests of artists and copyright owners. Regulation 20 (2) of the CMO Regulations stipulates that a suspension order from the NCC may be commuted to a revocation of licence if the collecting society fails to comply with the directives that led to its suspension in the first place.  Some copyright owners have expressed support for the licence suspension.

A communiqué was issued in which the NCC was urged to audit COSON and also collaborate with specialised agencies such as the Nigerian police and the Economic and Financial Crimes Commission (EFCC) to arrest the ousted and allegedly reinstated Chairman) Chief Tony Okoroji. [As far as AfroLeopa is aware at the time of writing, no arrests have been made and there has been no directive has been issued regarding lifting the suspension of COSON’s licence.]

 The powers of the NCC as sector regulator for the copyright industry are wide. Further, the NCC has a discretion regarding the power it chooses to exercise in any given situation involving collecting societies. For instance, the NCC has a choice to treat the COSON leadership tussle as a dispute between members and apply its dispute resolution powers under Regulation 15 of the CMO Regulations. As required by the CMO Regulations, all Board members of COSON, with the exception of the General Manager, are artists and copyright owners. It may also decide to appoint an auditor to investigate COSON’s affairs, especially its governance structures and processes. Further, it may (as it has elected to) suspend COSON’s licence to operate as a collecting society.

However, it is important, especially in governance issues of collecting societies that the discretion of the NCC and the powers it exercises are effective and able to achieve desired results.  It is equally important that petitions/suggestions to the NCC in such instances are couched in language that shows the correlation between each specific powers, available facts and probable results.

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Nuances of Patents and TK

A recent article in the Mail & Guardian (here) claims that the European Patent Office recognizes Jans Roosjen, a Dutch man, as the "inventor" of teff flour and associated food products.  The article also states "Roosjen also has a patent for the “invention” in the United States — though he is patently not the inventor of a product that has been around for millennia."

As is almost always the case when it comes to patents, the situation is not as straight forward as this article makes it seem.

This blogger found EPO patent EP1646287 (B1) (access it here), with the above named inventor, and the title "Processing of Teff Flour".

Claim 1 of the patent is directed to "A flour of a grain belonging to the genus Eragrostis, preferably Eragrostis tef, characterized in that the falling number of the grain at the moment of grinding is at least 250, preferably at least 300, more preferably at least 340, most preferably at least 380." In short, then, this patent doesn't cover "teff flour and associated food products" except in the case that the flour has a "falling number" greater than 250.

Without getting too technical, here's an excerpt from the patent description to explain the falling number: "The falling number obtained relates to the amount of undigested sugars in the starch. The higher the falling number, the lower the alpha-amylase activity and the fewer digested sugars are present in the grain." In less technical terms, the higher falling number apparently allows the teff products to be used in making products with more "stability" and less of an "unattractive taste and/or structure."

Interestingly, it seems that the falling number can be increased simply by storing the teff post-harvest for at least several weeks.

Regarding traditional uses of teff, the patent background section states the following: "This crop has been cultivated for human consumption in mainly Ethiopia and Eritrea for more than 5000 years...  Teff flour is traditionally used for preparing injera, a spongelike, gray pancake with a somewhat sourish taste. Injera is usually made from a flour mixture consisting of equal parts of Teff flour and wheat flour diluted with water and yeast. The diluted flour mixture is usually fermented for three to four days before it is baked."
Image result for teff
Patented teff?  Tough call. 

As for the US case, there are no related granted patents but there is a published application.  The application was abandoned in 2013 (USPTO data - see here), so there are no patent rights in the US.

There are no related patents on the African continent (according to EspaceNet data), although Ethiopia is not a member of the PCT so this blogger was not able to determine whether a related Ethiopia application was filed.

So, is injera patented?  Despite the broad statements in the Mail & Guardian article, traditional injera is not patented, as it is described as prior art in the background section of the granted patent. Instead, injera made from a very specific form of teff flour, with a specific property obtained by weeks-long storage of the teff post-harvest, is patented in Europe.

Is this an exercise of hair-splitting (or, more appropriately, teff splitting)? Possibly. This blogger finds it hard to believe that no Ethiopian prior to 2003 ever made injera with teff that had been stored for a few months. Of course, the question is actually whether such a process is documented - i.e., contained in the prior art. The simplest way forward, then, is for someone (e.g., the Ethiopian patent office) to find a reference from prior to 2003 that describes the use of stored flour in making teff. As this blogger understands EPO practice, national-level court cases would now be required to use such a reference (if found) in invalidating the patent. 
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Monday, 25 June 2018


Celebrating(?) patents, by the numbers

For those of you too busy (watching football, perhaps...) to notice, the 10 millionth US patent was granted last Tuesday (US patents are always granted on Tuesdays, by the way).  This blogger would like to take the momentous occasion to look at some numbers.

The first US patent was granted in 1836. It took about 150 years for the US to grant the first five million patents, and less than 30 years to grant the next five million. It took just over 3 years (38 months, precisely) to grant the most recent million patents. That's an average of 26,315 patents per month, or 6,100 patents per week.

On 30 April 2018, ARIPO recently granted AP4556, the highest number this blogger could find. The earliest ARIPO patents granted in 1987. Although it has taken 31 years to grant 4556 patents, the last 1000 patents were granted in just the last 2.5 years (i.e., about 33 per month). The halfway point, AP2278, was granted in 2011, less than seven years ago. So the numbers in ARIPO are also showing a dramatic increase.

In Kenya, the most recent patent available to this blogger is KE789, granted in February 2018. The first Kenyan patent was granted in 1994, resulting in an average of 33 patents granted over 24 years. As with the US and ARIPO, grants were increasing in Kenya until about 2012. Interestingly, however, the number of grants in Kenya has been declining year-on-year since that peak year. Here are some of the numbers: 43 granted in 2017, 37 granted in 2016, 22 granted in 2015, 53 granted in 2014, 70 granted in 2013, 76 granted in 2012, 63 granted in 2011, and 53 granted in 2010.

As this blogger has said many times before on this blog and elsewhere, the number of patents is a poor measure of innovation in ARIPO and Kenya (and, presumably, most or all of Africa). There are also many other factors that affect grant rate, from population and GDP to culture and tradition. Nevertheless, it is striking to see a per-week grant rate that is more than three orders of magnitude larger in the US compared with African offices.

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Friday, 22 June 2018


No monkey business “The Evolving IP and IT Landscapes” by AIPLITL

Little Ape wants u there!
Chris Job of the Centre for Intellectual Property Law at the University of Pretoria has highlighted an upcoming conference hosted by AIPLITL. This is what you need to know:

  • AIPLITL is The South African Association of Intellectual Property Law and Information Technology Law Teachers and Researchers 
  • This is their annual conference.
  • The conference theme is “The Evolving IP and IT Landscapes” and "promises to provide an excellent opportunity to exchange knowledge and share ideas with colleagues working in the fields of intellectual property law and information technology law." It looks like a cracker - check out the full program here.
  • Date: Wednesday, 4 July to Thursday, 5 July 2018
  • Time: 08:00 for 08:30 on 4 July
  • Venue: CSIR International Convention Centre, Building 39, Meiring Naude Road, Brummeria, Pretoria 
  • GPS coordinates: S25 45.317 E028 16.606 (South Gate)
  • Enquiries:
Be there or be square.

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Monday, 4 June 2018

Afro Leo


Prof Wim Alberts' pen has been at work. This time its nib is directed at the shapes of vehicles. Have you ever had anyone ask you whether you could start a toy business based on model cars, or create a car kit business, or how to describe a prize in a competition which is a car, or use models of famous cars in an amusement park for kids, or use a toy car in a promotional campaign for your business? This article will assist you understand some of the legal aspects as applied in South Africa, insofar as the shape of the car is concerned. Click here for more. 

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Wednesday, 16 May 2018

Chijioke Ifeoma Okorie

Infighting at Nigeria’s main collecting society raises CMO governance issues

On 30th April 2018, the Nigerian Copyright Commission (NCC) suspended the licence of music collecting society, Copyright Society of Nigeria (COSON) stating that the suspension was consequent upon COSON’s “continued failure and/or refusal” to comply with NCC’s earlier issued directive. The NCC had directed COSON not to give effect to the resolutions taken at COSON’s meeting of 19 December 2017 except the resolution on distribution of royalties to members.

This suspension comes on the heels of Afroleopa’s views expressed in this IPKat guest post on the infighting at COSON and the powers of the NCC as sector regulator. As Afroleopa had opined, the powers of the NCC in relation to the issues at stake regarding COSON include the power to suspend the licence of a collecting society by virtue of the CMO Regulations.

It is no longer news that despite these directives from the NCC, Mr Tony Okoroji (the purportedly reinstated COSON Chairman) had gone ahead to conduct an Annual General Meeting of COSON on 10th May 2018 and contrary to the NCC’s directive, ratified the resolutions reached at the meeting of 19th December 2017.

In the circumstances, COSON’s governance challenges show no sign of abating. However, while it is expected that the suspension will move COSON to regroup and take the necessary steps to put its affairs in order for the benefit of its members who are right-holders, it is pertinent to note the suspension of COSON’s operating licence may not be the panacea to its problems. For one, COSON is the exclusive assignee of performing rights assigned to it by its members. In essence, COSON is the monopoly publisher of the performing right in Nigeria. As the Nigerian member of the International Confederation of Authors and Composers Societies (CISAC), pursuant to its Matrix User Tools Agreements, COSON remains the owner of the world’s performing rights in Nigeria. Its membership of CISAC guarantees it access to the CIS-Net database (a network of database for sharing works metadata) as well as monopoly control in Nigeria to issue all of the requisite qualifiers and identifiers such as International Standard Musical Work Code (ISWC), the Tune Code, the Interested Party Name Number (IPN#) and the Interested Parties Information system (IPI), which inter alia forms the basis for determining authorship and ownership of musical works and literary works (where songs have words) and by extension, accrued royalties and members entitled to such royalties. CISAC does not require its members to be accredited by their national sector regulator. 

Corollary to the foregoing, COSON’s suspension may not have the desired impact in its operations. Ironically, COSON’s crusade against the MCSN may have succeeded in procuring judicial precedent that may help the Tony Okoroji-led COSON. Nigerian courts have held in several decided cases that an exclusive assignee of copyrights do not require collecting society license in order to enforce such rights.

That said; the NCC’s directive regarding COSON’s bank accounts might achieve the desired results if the NCC is able to procure a freeze on COSON’s bank accounts such that the current COSON Board can no longer incur expenses until the dispute is resolved. IP blogger, Victor Nzomo has indicated that he is conducting research into the best way for African countries to tackle CMOs’ governance issues and the form such regulations may take. Afroleopa opines that such research agenda should inform CMO regulations all over Africa and the rest of the world.

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