Sunday 13 August 2017

Afro Ng'ombe

First International Conference on Law and Digital Technology Explores Number of IP Issues for Africa

Babcock University torch at entrance to main campus
Little Leo recently had the privilege of attending the First International Conference on Law and Digital Technology hosted at Babcock University in Nigeria.  The ambitious conference title was well met during the two-day program with sessions covering everything from e-banking and e-health to Nigeria’s space program and international shipping law.  As may be expected, several sessions touched on intellectual property issues, and Professor Emeritus I.O. Agebede set the conference tone in his welcoming address with a charge to all to let law be a moderator of technology.

The Impact of Digital Technology and E-Commerce on Other Areas of the Law

Professor Joke Oyewunmi opened this session very optimistically, pointing out that Nigeria has the tools: the largest number of smart phone users and the most room for growth.  The point is, Prof. Oyewunmi stressed, to "enable our systems to use what we have to get what we want."  The speakers on the panel outlined ways e-commerce can be improved to improve Nigeria.  The draft copyright act was highlighted as one improvement, particularly for its provisions introducing ISP-liability for copyright infringement and addressing circumvention of technological protection measures.*  The Cybercrimes Act 2015 and the Nigerian Information Technology Development Agency (NITDA) were two other pieces highlighted as helping strengthen e-commerce in Nigeria.

In terms of needed changes to help e-commerce, Dr. Vera Ekundayo spoke about the need for more certainty on the validity of e-contracts in Nigeria.  Her research with Dr. Dorcas A. Odunaike found that there is little case law on clickwrap, browserwrap, or shrinkwrap licenses in Nigeria.  Overall, the Nigerian legal system needs a deeper awareness of the benefits of functioning e-contracts.  Adedotun Olusanya added that one of the main challenges for e-commerce is finding the correct price for intangible IP products, such as music, movies, etc.  This, indeed, is a problem companies around the world are trying to sort out.  He also discussed the need for companies, particularly start-ups, to have a better understanding of all the IP assets involved in a company: databases, copyright, design, patent, trademark, domain names, trade secrets, and know-how.  He urged IP attorneys to do more to help educate start-ups so they can succeed in the e-commerce field.

Even the seemingly-IP-less presentation "Information and Communication Technology for Shipping Operations: A Review of the Master and Crew in Maritime Employment Law" included potential ramifications for intellectual property.  Traditionally, the captain of a boat is responsible for the contents and everything that happens on the boat, not the owner of the boat.  The law developed this way because out at sea, the captain had all the control and the owner none.  But with new technology, the captain and owner can stay in constant communication, the owner can actually receive detailed data about the boat, and the owner can make decisions about things like cargo and course.  This may mean new legal responsibilities for boat owners, including responsibilities for the legality of their boats' cargo.  The law is changing, and new rules aren't settled yet.  Ship owners beware.  If you own a container freighter, say one that goes between China and Africa, you may suddenly find yourself liable for a whole lot of copyright and trademark infringement.

E-ADR: The Impact of Technology on Dispute Resolutions

Although this isn't a strictly-IP topic, it is one of importance for the area because of the difficulties IP-owners often site with attempting to bring cases in court.  Alternative dispute resolution (ADR) gives IP-owners another method to enforce their rights.  David T. Eyongandi introduced a number of global e-ADR platforms, highlighted the benefits such platforms can provide to Nigerians, and discussed changes necessary for these platforms to truly work in the country.  e-ADR can avoid complex jurisdictional issues, which can be a huge benefit for intellectual property creators who often have partners and audiences across the continent.  It is also relatively cheap and convenient compared to either court or in-person ADR. However, if e-ADR is to be a legitimate option for IP-owners in Nigeria, the law needs to clarify that electronic agreements with electronic signatures do count as "writings" under the ADR law; Nigerians need reliable power supply and internet connections so they can stay connected to the network long enough to complete e-ADR sessions; and Nigerians need to be assured of the confidentiality and security of their conversations that take place during e-ADR.  Eyongandi also recommended that a Nigeria-specific e-ADR platform be developed.

Techno-Jurisprudence, E-Justice, E-Terrorism and E-Governance

As discussed above, the session on e-commerce talked about changes to the law that help secure IP rights in an e-commerce environment.  The techno-jurisprudence panel added some more, namely the recognition of electronic evidence in the 2011 Evidence Act.  Kingsley Osinachi N. Onu pointed out that although the law is there, this is only a first step.  In his research with Aniekan Andikan Ikpinyang, the pair discovered that the law's two subsections for authenticating electronic evidence are creating confusion.  Sections 84(2) and 84(4) both provide means for authentication.  Sometimes judges allow one method, sometimes they require both.  Onu recommended that more details be added to the law so that courts treat all e-documents the same.

New Dimensions for Copyright Works in the Digital Era

Now this one we can definitely see is IP straight off the back.  Dr. Ifeoma Oluwasemilore discussed open access and made a recommendation that Nigeria not join the WIPO Internet Treaties as she sees the requirements in these treaties impeding the goals and workings of open access.  Her presentation on open access was a little different than others Little Leo has seen on the continent as it was to a less-agreeable audience than usual on this topic.  Many were skeptical about losses to academics who might otherwise receive royalties for their publications.**

Bayo Ayo gave a count of the on-going collecting society saga in Nigeria, in which he has been involved for over two decades.  [Afro-IP has covered a good portion of the last decade of this battle with at least six different authors writing on the topic; relevant posts can be found here and here.]  Ayo cited the 2004 Copyright Act stipulating that there should be one CMO for each area that "adequately protects the interest of that class of copyright owners."  (Section 39(3).)  Up until April of this year, Nigeria had three main collecting societies: Repronig for reprographic rights, COSON for the music industry, and AVRS for the movie industry.  But on April 17th, the Attorney General gave approval for MCSN to return as a music collecting society, along with COSON.  This is the on-going battle.  So far, there are no specifics on how the two will co-exist.  Will they compete?  Will they complement?  Will time even tell?

In addition to the confusion surrounding the music collecting societies, Ayo pointed out other challenges that have led to Nigerian copyright owners earning more royalties from foreign collecting societies than from their own.  These include low data on tracking use of works, especially online uses of work.  John Asein, Executive Director of Repronig, was more optimistic on the ability to track uses, highlighting new tracking technologies such as DJ monitor.  Additionally, he urged collecting societies to have proper industry practices and to charge royalty rates appropriate to the market rather than attempting to charge 'international' rates across the board.

Artificial Intelligence and the Future of Innovation and Technology in Nigeria

Also of interest for attorneys following this blog, the conference addressed an issue creeping up on all of us: the effect of artificial intelligence on the practice of law.  Little Leo was impressed with the approach taken by all the speakers who acknowledged and highlighted legal tasks that could be done by AI in the near future.  She has heard the same topic oft discussed in the U.S. where attorneys take more of an ostrich approach and insist they are too special to be replaced by computers.  Various presenters discussed aspects of their practices that they could see artificial intelligence handling, including contract and license drafting.  Interestingly enough, Professor Bankole Sodipo pointed out that manufacturing jobs are unlikely to be turned over to AI in Nigeria the way they were in the West.  This is because most manufacturing is done by individual craftsman.  [Indeed, that is one of Little Leo's favorite things about coming to the continent, the ability for anyone, even of modest means, to have many items custom made for them: clothing, furniture, window grates.  These are luxuries available only to the very rich in the United States.]

2nd Annual?

The organizers at Babcock hope to follow-up this First International Conference with a second and third and so on.  Those interested in future programing can contact the organizer, Dr. Arowolo, here.

*Note: the introduction to the last public version of the draft Nigerian copyright law stated that changes in the law are intended to implement the WIPO Internet treaties (WCT and WPPT), among other agreements.  The public comment period for the law has ended, so the dedicated portal for the draft,, is no longer available.
**Many scholars in Nigeria publish books with local publishers rather than publishing in international legal journals which are rather notorious for not paying royalties.  Whether these locally published books result in substantial royalties for the authors, Little Leo knows not.  She will however, remark that such publications are much more difficult to find outside of Nigeria than articles from said journals.
Little Leo with Dr. Ayoyemi Arowolo and John Asein

Afro Ng'ombe

Afro Ng'ombe

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