NIGERIA - 2009 SPECIAL 301 REVIEW

UNCLAS SECTION 01 OF 03 ABUJA 000396

SENSITIVE
SIPDIS

DEPARTMENT PASS TO USTR FOR AGAMA AND VETERE; PTO FOR HICKEY; LOC
FOR USCO PPINHA; AID FOR GWEYNAND AND SLAWAETZ
BAGHDAD FOR MCCULLOUGH
TREASURY FOR PETERS, IERONIMO AND HALL
USDOC FOR 3317/ITA/OA/KBURRESS AND 3130/USFC/OIO/ANESA/MCREED
DOJ FOR MKOUAME

E.O. 12958: N/A
TAGS: ETRD KIPR ECON EINV EAID PGOV PREL NI
SUBJECT: NIGERIA - 2009 SPECIAL 301 REVIEW

REF: A. STATE 8410

B. ABUJA 98
C 08 LAGOS 484

D. 08 ABUJA 2295

E. 08 ABUJA 2177

F. 08 ABUJA 2146

G. 08 LAGOS 405

H. 08 ABUJA 1364

I. 08 ABUJA 1039

J. 07 ABUJA 2059

SENSITIVE BUT UNCLASSIFIED - NOT FOR DISTRO OUTSIDE USG


1. (SBU) Summary. Despite USG-sponsored training and capacity
building efforts the Nigerian government (GON) in 2008 failed to
curtail rampant, sustained and serious intellectual property rights
(IPR) violations in Nigeria. The U.S. Mission recommends that
Nigeria be included in the "Special Mention" category of the 2009
Special 301 list. Despite the USG enjoying a positive working
relationship with the various GON agencies and offices combating IPR
violation, political will at the higher levels of the GON has been
absent. As a result, private sector stakeholders, government
contacts and industry experts all conclude that in 2008 Nigeria was
a more fertile ground for IPR pirates to operate and succeed. The
Mission calls for Nigeria to be included in the "Special Mention"
category as a wakeup call that training and capacity building
support so far delivered by the USG requires corresponding GON
actions to effect substantial positive changes in the IPR
environment. End Summary.
.
International Commitments and Legislation
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.

2. (U) Nigeria is a member of the World Intellectual Property
Organization (WIPO),a party to the Universal Copyright Convention
(UCC),the Berne Convention, the Paris Convention for the Protection
of Industrial Property, and has signed the WIPO Copyright Treaty and
the WIPO Performances and Phonograms Treaty. In 1999, amendments to
the Nigerian Copyright Decree incorporated trade-related aspects of
intellectual property rights (TRIPS) protection for copyrights,
except for provisions to protect geographical indications and
undisclosed business information. The U.S.-Nigeria Trade and
Investment Framework Agreement signed in 2000 include mention of the
importance of providing adequate and effective protection and
enforcement of intellectual property rights.


3. (SBU) Since 2006 there remains confusion within the GON regarding
proposed legislation to combine the various intellectual property
agencies under a single and uniform authority. The USG, via USAID
funding to the Commercial Law Development Program (CLDP),supported
the drafting of a bill that would establish an Industrial Property
Commission. Contacts confirmed to us on February 28 that Senator T.

U. Wada (Gombe State - Gombe South Area) plans to advocate for
passage of the bill. (Note: This bill would amend the Patents and
Design Decree to make comprehensive provisions for the registration
and proprietorship of patents and designs; amend the Trademarks Act
to improve existing legislation relating to the recording,
publishing, and enforcement of trademarks; and provide protection
for plant varieties (including biotechnology) and animal breeds.
End Note). This bill has sat in the Senate since 2007. At the same
time, the Ministry of Commerce and Industry and the Ministry of
Justice plan to submit similar bills to the National Assembly. The
USG has strongly advocated that only one comprehensive bill be put
forward. However, due to inter ministerial competition, the various
bills have resulted in the status quo with legislative improvements
languishing on the back burner. The fate of this legislation is
emblematic of the lack of inter ministerial cooperation since 2006.

.
USG Technical Assistance
--------------
.

4. (SBU) In 2008 the USG spent more than $150,000 on training for
300-plus Nigerian intellectual property (IP) officials. The United
States Patent and Trademark Office (USPTO),the U.S. Department of
Commerce's CLDP, the Department of Justice (DOJ),Department of
Homeland Security (DHS),Federal Bureau of Investigations (FBI) and
International Narcotics and Law Enforcement Affairs Office (INL)
have funded and supported USG technical assistance. The USG funded

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more than 20 GON IP officials to attend Global Intellectual Property
Academy programs. CLDP held an IP workshop for Nigerian judges in
January 2008 in Abuja. The USPTO held two concurrent IP workshops
in June 2008, one on IPR enforcement and the second a trademark
examiner's course. In August 2008, another IP workshop was held in
Lagos focusing on optical disc enforcement. In addition, the World
Intellectual Property Organization (WIPO) hosted a training program
in Nigeria in 2008. All of the USG/WIPO workshops highlighted the
importance of inter-agency cooperation in the fight against piracy.



5. (SBU) The Nigerian Copyright Commission (NCC),Registrars Office
of the Ministry of Commerce and Industry (MCI),Standards
Organization of Nigeria (SON),Nigerian Customs Service (NCS),
Economic and Financial Crimes Commission (EFCC) and National Police
Force (NPF) have received technical assistance on IP protection.
Despite these efforts to encourage inter-agency cooperation and
coordination among the GON IP agencies and enforcement, little or no
progress has been achieved in terms of actual enforcement. A
disturbing setback was witnessed in August 2008 when a GON agency
made blatant attempts to sabotage other GON agencies' participation
in a USG-supported IP workshop in Lagos.
.
Bright Spots - NAFDAC & NCS
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.

6. (U) One positive aspect in 2008 was progress in combating
counterfeit medicine, as well as patent and trademarks abuse in the
pharmaceutical sector, mainly due to the efforts by the National
Agency for Food and Drug Administration and Control (NAFDAC). Until
December 2008 that agency was lead by Dr. Dora Akunyili, who
spearheaded GON efforts to combat counterfeit drugs. Efforts were
categorized by numerous market raids, seizures of counterfeit goods
and an active public awareness campaign. NAFDAC was able to reduce
the number of counterfeit pharmaceuticals consumed in Nigeria,
apprehending counterfeit pharmaceutical imports at the borders, and
closed down factories manufacturing sub-standard pharmaceuticals.
Dr. Akunyili demonstrated the high-level political will to tackle
pirates. On December 17 Dr. Akunyili was appointed Minister for
Information and Communications and replaced on Janaury 11 by Dr.
Paul Orhi. EconDep spoke with DG Orhi on February 19 at U.S.
Mission National Day Celebration. Orhi pledged to continue to work
closely with the USG.


7. (SBU) In another positive area, following sustained USG advocacy,
the NCS successfully changed regulations in the 2008-2012 tariff
policy book released in September 2008, which now empower it to
seize pirated works and prosecute offenders. Though the NCS has
received some WIPO-sponsored and USG-sponsored training, it admits
that the technical capacity of its officers needs to be enhanced for
it to be able to combat piracy effectively, and also calls for
collaboration with industry in providing training for its officers
in identifying genuine products of industry stakeholders. EconDep
spoke with new Comptroller General Nwadialo on February 19 at U.S.
Mission National Day Celebration. Nwadialo thanked the Mission for
its support in 2008 and confirmed that NCS will work closely with
the USG in 2009.
.
Pirates Having a Field Day
--------------
.

8. (SBU) Optical disc piracy, software piracy, and counterfeit
pharmaceuticals are major problems in Nigeria. Piracy of digital
media continues to increase despite various trainings provided by
the USG to the NCC. The NCC has conducted few raids on alleged
copyright infringers, and no major pirates have been convicted.
Enforcement and prosecution are not a deterrent to piracy. Inter
ministerial cooperation is spotty. GON agencies refuse to cooperate
to form an inter ministerial taskforce to better coordinate and
marshal resources. Ongoing bureaucratic squabbles have only
benefited pirates.


9. (SBU) The Nigerian and American recording and film industries
have raised serious concerns about optical disc (OD) replicating
plants mostly owned by Asian investors located in Nigeria. Despite
the introduction of the Copyright (Optical Disc Plants) Regulations
in December 2006, optical disc piracy continues to increase.
Contacts have told us that more than 15 optical disc productions
plants operate in Nigeria and that many are manufacturing hundreds

ABUJA 00000396 003 OF 003


of millions of pirated discs per year.


10. (SBU) The OD regulations prescribe a registration process for
all optical disc replicating and duplicating plants in Nigeria;
prescribe the use of personal identification numbers and source
identification codes; make it mandatory for every plant to maintain
a register for all works produced by them showing the name of the
author, title of work, year of production, and quantity produced.
In 2007 the NCC highlighted the regulation as one of its
achievements towards combating copyright infringement. Industry
stakeholders allege that the NCC only implements the regulation
because the license fee is a source of revenue and also allege that
known copyright infringers have been licensed under the new
regulation. They also claim that the NCC does not monitor the
operations of the optical disc plants once licensed, which gives
room for some plants to produce both legal and pirated disks from
the same machines.


11. (SBU) The "notorious" Alaba International market in Lagos is
known for the sale of pirated optical discs, yet the NCC and
national police have not been able to curtail sales. Contacts claim
that CDs with more than 300 songs of music by local and
international artists are sold in markets for less than one dollar.


12. (SBU) Software piracy is also a serious problem. Though the use
of unlicensed software is rampant, the NCC requires that the
rights-holder make a formal complaint before it can conduct a raid
on the premises of the software pirate. The "notorious" Computer
Village in Ikeja, Lagos State, is known for the sale of pirated
software and pirates operate there unimpeded. Microsoft and the NCC
have been able to ensure that some high profile violators, such as
banks, obtain the required software license.
.
Special Mention Category
--------------
.

13. (SBU) The International Intellectual Property Alliance (IIPA)
has recommended that Nigeria be categorized as "Special Mention" on
the 2009 Special 301 list and the Mission concurs. The piracy
situation has not improved in 2008 and according to IIPA may have
worsened. The IIPA claims that there is evidence that Chinese and
Southeast Asian criminal networks are working together with Nigerian
criminals. The GON needs to be put on notice that it is not
providing the necessary support in the USG/GON partnership to combat
IPR violations. Despite numerous USG resources devoted solely to
Nigeria, progress has been absent.


14. (SBU) The NCC, NCS, SON, MCI and others have offered a number of
excuses for this woeful record. They blame the long and tortuous
judicial processes and inadequate budget resources. All Nigerian
agencies operate in this same environment and these hurdles have not
stopped NAFDAC from making major progress. Industry stakeholders
point to the lack of political will on the part of the NCC, and also
allege complicity. Without immediate steps taken by the GON to
create an IPR task force to foster inter ministerial cooperation,
increased raids, seizures and prosecutions, 2009 will be another
bonanza for pirates operating in Nigeria.


15. (U) This cable was coordinated with ConGen Lagos.

SANDERS