Balancing WTO-TRIPS Standard Against Nigeria Counterfeit Regulatory Efforts: A Critique

Introduction

The relevance of innovation or novelty today is so essential a complementary right is created to protect its advancement. It is a way of thinking outside the present rather it is a future based insight. Innovation compares past and future ideas to solve a future problem (Stenberg, 2007). Innovation is usually linked to creativity, in the words of Tienken creativity is new, unique and creates innovations in countries (Tienken, 2013). Many innovations can only be protected by intellectual property to generate economic value with an established competitive advantage to guarantee commercial control and use. IP is reward-based; the reward is an incentive for Creativity. Having established the fact that IP is a unique value-adding creation (Kalanje, 2006) which generates a legal right when the due process of registration and grant of according right is established, thus it creates an entitlement to creativity.

However, the question of intellectual protection granted by a state is limited in scope as there is a delimitation between international and national intellectual protection. The first part will attempt to rectify this issue by examining the meaning of property supported by scholarly evidence advocating clarity in the interpretation of what a right to property means. Secondly, it is right to understand the nature of TRIPS protection and the strategy preferred for the utilization of this protection especially in developing countries (Nigeria) for if the protection authorized by the World Trade Organisation established any discrepancy in its application will be underlined and questioned in resolving Nigeria counterfeit drug problem.

The Nature Of Intellectual Protection

The subject of Intellectual Property is unknown and side-lined in the 1960s but over time it has gained widespread acceptance as a viable instrument for economic growth and development. States have come to recognise and see IP as a new form of ‘resource’ which can foster innovation, development, and shape economic relations. In today’s conditions, an intellectual resource is an intangible right to a creative outcome, be it scientific, industrial or any creative step new to mankind is deemed a resource worthy of protection. In this note, any unauthorized use of IP resources is tantamount to stealing a creator’s legal authority over his goods. To safeguard against unauthorized use, states approve legal protection on IP to encourage new technological inventions, artistic expression, and creativity with the sole objective of preventing others from benefiting from the sweat of another and to encourage fair trading. With this authority, a right holder can bring actions in a civil or criminal proceeding to enforce IP rights.

Given the peculiar nature of intellectual property right, two key issue needs further clarification, these includes:

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  Understanding what delineates IP from other forms of property that ensure global recognition and protection

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  Secondly, what is the nature of TRIP protection and how is the strategy adopted by TRIP integral for innovative growth in developing countries.

On the first issue, it is already established that IP is a form of property granted by national law of a state and governed within the exclusive jurisdiction of that state, the law in that jurisdiction determines the time frame, limitation, minimum requirement, and usage of such right (Chu, 2011). However, Lemley believes that it is rather absurd to associate IP with real property (propertization) (Carrier 2004) especially in terms of its economic importance and profitability, with this noted association, the IP regime appears to be modelled around property laws even though both regimes are different, this will inevitably affect the balance of both paradigms).