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Viewing cable 08ABUJA324, 2008 SPECIAL 301 REVIEW - NIGERIA

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Reference ID Created Released Classification Origin
08ABUJA324 2008-02-21 09:17 2011-08-25 00:00 UNCLASSIFIED Embassy Abuja
VZCZCXRO3440
PP RUEHMA RUEHPA
DE RUEHUJA #0324/01 0520917
ZNR UUUUU ZZH
P 210917Z FEB 08
FM AMEMBASSY ABUJA
TO RUEHC/SECSTATE WASHDC PRIORITY 2123
RUEHZK/ECOWAS COLLECTIVE
RUEATRS/DEPT OF TREASURY WASHDC
RUCPDOC/DEPT OF COMMERCE WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC
RHEBAAA/DEPT OF ENERGY WASHDC
UNCLAS SECTION 01 OF 02 ABUJA 000324 
 
SIPDIS 
 
SENSITIVE BUT UNCLASSIFIED 
 
SIPDIS 
 
STATE PASS TO USTR FOR AGAMA 
TREASURY FOR PETERS AND HALL 
USDOC FOR 3317/ITA/OA/KBURRESS 
USDOC FOR 3130/USFC/OIO/ANESA/DHARRIS 
DOJ FOR MKOUAME 
DOE FOR CGAY AND GPERSON 
 
E.O. 12958: N/A 
TAGS: ETRD KIPR PGOV PREL NI
SUBJECT: 2008 SPECIAL 301 REVIEW - NIGERIA 
 
REF: STATE 9475 
 
SENSITIVE BUT UNCLASSIFIED--PLEASE HANDLE ACCORDINGLY 
 
1. (SBU) Intro and Summary:  The Government of Nigeria (GON), 
Nigerian industry and U.S industry recognize the serious 
Intellectual Property Rights (IPR) problems in Nigeria.  There have 
been some successes in IP enforcement; however, convictions are rare 
owing to long and tortuous judicial processes which discourage 
rights owners from seeking redress in court.  Nigeria is a member of 
the World Intellectual Property Organization (WIPO), a party to the 
Universal Copyright Convention (UCC), the Berne Convention, and the 
Paris Convention for the Protection of Industrial Property, and has 
signed the WIPO Copyright Treaty and the WIPO Performances and 
Phonograms Treaty.  Legislation pending in the National Assembly is 
intended to establish a legal framework for an IPR system that 
complies with WTO obligations, though current law, especially with 
regards to copyrights, provides a solid basis for enforcing 
copyrights and combating piracy.  GON officials responsible for IPR 
issues are open to cooperation and collaboration with the U.S. and 
concerned industries; however, the GON IP agencies are not well 
funded and have not yet worked out smooth coordinative mechanisms. 
This message identifies steps the GON could take to avoid being 
designated in 2008.  Post recommends an approach focused on 
continued cooperation rather than public designation.  End Intro and 
Summary. 
 
2. (SBU) Optical disc piracy, software piracy, and counterfeit 
pharmaceuticals are problems in Nigeria.  The Nigerian and American 
recording industries have raised serious concerns about optical disc 
replicating plants mostly owned by Southeast Asians that are located 
in the country.  In an effort to combat optical disc piracy, the GON 
enacted the Copyright (Optical Disc Plants) Regulations in December 
2006.  The 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; and 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 of 
work produced.  Though the Nigerian Copyright Commission (NCC) has 
raided and sealed up some optical disc replicating plants, no 
convictions have been obtained; in one case, evidence was destroyed 
at a public "anti-piracy" event and thus could not be used in court. 
 Some plants produce both legal and pirated disks from the same 
machines.  Team Nigeria Law Enforcement Working Group plans to meet 
with the NCC in March to explore ways forward. 
 
3. (U) There has been tremendous success in the fight against 
counterfeit pharmaceuticals.  The National Agency for Food and Drug 
Administration and Control (NAFDAC) is responsible for regulating 
drugs and food.  NAFDAC has been able to reduce the number of 
counterfeit pharmaceuticals consumed in Nigeria through conducting 
raids in various markets nationwide, apprehending counterfeit 
pharmaceutical imports at the borders, and closing down factories 
manufacturing sub-standard pharmaceuticals.  Though some people 
complain that NAFDAC is high-handed, the authorities would prefer to 
curtail the hazards posed by counterfeit and sub-standard 
pharmaceuticals, thereby saving lives. 
 
4. (U) Software piracy is a serious problem, though companies such 
as Microsoft in conjunction with the NCC have been able to ensure 
that some high profile violators such as banks obtain the required 
software license.  Though the use of unlicensed software is rampant, 
the NCC advises that the rights holder makes a formal complaint 
before it can conduct a raid in the premises of the software pirate. 
 
 
5. (U) The GON IP agencies often complain about low funding from the 
national budget.  This problem is not only confined to IPR agencies, 
however.  Almost all GON agencies are not properly funded.  The GON 
agencies that receive good funding are the big spending ministries 
such as defense and works (road construction).  The NCC has 
requested additional funding in the 2008 Budget awaiting passage by 
the National Assembly. 
 
6. (U) GON officials responsible for IP admit that there are 
problems related to IP enforcement especially in the area of 
building capacity.  The United States Patents and Trademarks Office, 
in collaboration with the U.S. Department of Justice and the U.S. 
Department of Commerce's Commercial Law Development Program (CLDP), 
 
ABUJA 00000324  002 OF 002 
 
 
continues to provide training to Nigerian IP officials and Judges. 
The training has improved the way the IP officials do their work 
according to GON contacts.  The January 30 - February 1, 2008 CLDP 
training for Nigerian Judges was done in coordination with National 
Judicial Institute and the Intellectual Property Law Association of 
Nigeria (IPLAN), with the Chief Justice of the Federal High Court 
present at the training, likewise Justice Niki Tobi, Justice of the 
Supreme Court of Nigeria, representing the Chief Justice of the 
Federation. 
 
7. (SBU) Post agrees that IP enforcement is weak.  This problem is 
not confined to IPR issues, however.  In virtually every field of 
legal and criminal activity, enforcement is very weak.  Even in high 
profile, high priority areas for the GON such as anti-corruption 
efforts and efforts to combat advance fee fraud popularly called 419 
or areas where there is intense international pressure and scrutiny 
such as drug trafficking, enforcement continues to be limited, slow 
and ineffective, reflecting the very low capacity of Nigerian law 
enforcement institutions.  This is a systemic problem that will not 
yield to quick fixes. 
 
8. (SBU) Although post does not dispute that software, print and 
particularly optical media piracy is a serious and growing problem 
in Nigeria, post is concerned that placing Nigeria on the 301 Watch 
List could be counterproductive to our overall and IPR goals.  We 
would note the GON is aware of the problem, is taking steps to 
address the problem, and the attitude of GON officials responsible 
for IPR issues is open and responsive to U.S. messages on the issue. 
 Recent IP trainings conducted in Nigeria by DOC's CLDP, DOJ, and 
USPTO are part and parcel of a strategic approach towards building a 
fruitful and lasting relationship which will eventually assist us in 
achieving our IPR goals.  Placing Nigeria on the Watch List risks 
turning a cordial, cooperative relationship into one that is more 
adversarial and defensive, and ultimately less productive. 
 
9. (SBU) The timing in particular of this year's review is 
problematic.  The result of the last presidential election is being 
challenged and the outcome could be known in the coming weeks. 
Though the 2007 elections were flawed, the USG sees Nigeria as a 
partner that needs to be encouraged on its path of reform.  Embassy 
continues to engage the host government on a variety of issues and 
continues to receive a lot of cooperation from GON officials even at 
the highest levels. There is a growing recognition of the need to 
construct a robust, progressive, and enduring relationship between 
our two countries. 
 
10. (SBU) For the reasons given above, post would not recommend 
putting Nigeria on the 301 Watch List for 2008, the admitted 
problems with IPR enforcement notwithstanding. 
 
11. (SBU) At the same time, we need to assure U.S. and Nigerian 
industry--and make clear to our GON counterparts--that we are not 
giving Nigeria a "free pass."  While we do not recommend 
designation, at the same time, we believe the GON needs to take at 
least one of the following steps to stay off "The List" in 2008: 
--Increased funding for NCC and clear plan to use it, especially 
towards enforcement; 
--Raids of illegal disc plants, with attention on proper evidence 
collection during raids; 
--A conviction and/or plant shut down; 
--Dedicated NCC enforcement unit, led by a law enforcement 
professional; stronger working relationship between the NCC and the 
EFCC; or 
--Other concrete bilateral cooperation on enforcement, whether at 
the federal or state level,. 
 
SANDERS