The relationship between incentives, innovation and market behaviour within the context of the intellectual property system in Nigeria

• Citation: (2018) IPLJ 47
• Date: 24 May 2019
• Pages: 47-66
• Published date: 24 May 2019
• Author: Adigun, M.

THE RELATIONSHIP BETWEEN

INCENTIVES, INNOVATION AND







 

Lecturer, Faculty of L aw, University of Ibadan

 



importance b rings to the fore questions with respec t to their protection by

means of patent law, copyright law or tradema rks, among others. However,

the legal protection of creative activities of ten creates a monopoly-like

precept of competition or antitr ust law.1 The resolution of this antithe tical

situation constitut es a perennial problem.2

Some economists and non-ec onomists have expressed doubts about

protecting creative activities through law.3 They contend that the re is no use

   

1 AF Lowenfeld Internatio nal Economic Law (2002) 106-107.

2 Lowenfeld (n1) 107. Shyllon observes that ‘while the g rant of an exclusive right to the ow ner of

an intellect ual property confer s a monopoly to utilise the object du ring the term of the pa tent

or copyright or d esign right, the extent of th e monopoly, however, depends on the breath of t he

protection. T hus, the monopoly whic h a copyright holder e njoys is far weaker tha n that of a patent

holder, since in the c ase of copyright the form or exp ression of a work is protected rathe r than

the essence of (the idea b ehind) the invention, as i n a patent’: FO Shyllon Intellectual Prop erty

Law in Nigeria (2003) 92. Sod ipo also submits that ‘what ever the breath of the monopoly, it is

not an absolute monop oly. With the exception of a trade mar k, it is limited in tim e. With regard

to patents, t he test is whether in add ition to a patent being a sole r ight, a patented pro duct is easy

to substitut e. Substitutabilit y of a patented p roduct depends on the e xtent to which a product

can be made wit hout infringing t he patent. Chemical and pha rmaceutical patent s illustrate this

point. It is often d ifficult to find suit able substitutes to th ese patents. As such, not a ll patents

are monopolies’: B Sodipo Pi racy and Counterfei ting: GATT, TRIPS and Developin g Countries

(1997) 92. He furthe r states that ‘The owner of a t rade or service mark h as the sole right to use

and supply this m ark in connection wit h the goods and serv ices. But this does not prevent t hird

parties f rom selling simila r goods or services , provided marks are not i nfringed or busi ness

passed on. Hence , trademarks, i n most cases, are not tr ue monopolies. The his tory of copyright,

a child of the monopoly of th e Company of Stationers, e xplains why copyrig ht is still sometime s

referred to a s a monopoly. Since copyright protect s only the form wherein ideas a re expressed

and not the ideas p er se, it is not difficult t o get or arrange subst itutes for most copyr ight goods.

        

over substitut es without a loss of their m arket share. For inst ance, another text m ay be written by

another autho r which can compete on the ma rket. Therefore, depend ing on the facts of the case ,

copyright may o r may not be a monopoly’: Sodipo (n2) 93.

3 EE Bensen ‘I ntellectual pr operty’ in P New man (ed) The New Palgra ve Dictionary o f Economics

and the Law (19 98).

47

(2018) IPLJ 47

© Juta and Company (Pty) Ltd

having copyright and pat ent law since creative activities must occur whet her

          4 Thus, having laws to

           

are other means more suit able than law for protecting those who engage in

creative activities from h aving their creation imitated . In addition, if there

     

     

protect all creative activ ities.5 One point which has been emphasised as to why

creative activities do not requi re protection, is that by their natu re they have

protected themselves indep endently of any protection offered by law. Before

a creative activity can b e imitated, the creator has what is c alled ‘lead time’

during which he or she would have enjoyed a monopoly before any imitator can

enter the market and he or she would have received his or her rewa rd before the

entry of the imit ator.6 With respect to patents, it is claimed that the lead ti me is

even more substantial becaus e the imitator would need to have acquired some

secret know-how which is not always easy, and which often takes ti me. While

some of these arguments a re persuasive, the truth is t hat the lead time is not

7

Irrespect ive of the force in the logic of those who believe that creative

activities do not deser ve any legal protection, it cannot be seriously

contested that what largely underl ies the creation and enforcement of the

modern intellect ual property system is ec onomic gains, even though there

             

for the satisfaction they derive from t hem. History bears th is out. Copyright

   

The guild system use d to grant monopolies and control supply and therefore

set the price for books and works of ar t. Copyright intervened to prevent ‘fre e-

riding’ which the market could not succes sfully combat after the death of

the guild system.8 Th is was to provide incentives to authors who were the

producers of ideas and publishers who were dis seminating these ideas.9 With

the intervention of copyr ight, society acknowledged the need for encouraging

          

case is made why legal rights should subsist in a n original work to the extent

dictated by the natu re of that work and why piracy should be outlawed.10 With

this historical ac count, it can be seen that economic gains largely underl ie the

4 Bensen (n3).

5 Bensen (n3).

6 J Holyoak & P Torremans Inte llectual Propert y Law (1995) 22.

7 Holyoak & Torremans (n6) 22.

8 R Towse (1999) 17 Copyright Rep orter 15.

9 Towse (n8) 15.

10 JF William s A Manager’s Guide to Patents , Trade Marks and Copyr ight (1986) 11. Cornish states

that ‘one common cha racteristic of all these r ights is that individuals c an prevent others from

producing and m arketing a patente d machine, substan ce or process, a copyr ighted book, fil m or

picture, or t hey may be enjoined from sel ling goods or serv ices using another’s tra de mark’: WR

     Cambridge Law

Journal 46, 46-63.

48 South African Intellectual Property Law Journal (2018) 6

© Juta and Company (Pty) Ltd