On Wednesday the 19 of September 2012 the Federal Executive Council (FEC) approved a New Sugar Master Plan (NSMP) that will attract over $1 billion (one billion dollars) in local and foreign direct investments and possibly create over 107,000(one hundred and seven thousand) direct jobs locally at the initial stage and in the next 10 years.
Minister of Information, Labaran Maku, and the Minister of Trade and Investment, Olusegun Aganga, highlighted other benefits of the NSMP to include the generation of 400 megawatts of electricity. They were quoted as having said that:
“If Nigeria could achieve the level of local production envisioned in the NSMP, she stands to derive the following benefits: 1,797,000 tons of sugar annually; 161.2 million litres of ethanol annually and 400 megawatts of electricity annually”.
However this paper will attempt to examine the Intellectual property ramifications in the New Sugar Master Plan (NSMP) approved by the Federal Executive Council (FEC) and the Agricultural industry as a whole.
Birth of Ethanol Industry in Nigeria?
Ethanol has the potential to provide clean energy for us a country; it has been described as one of the “cleanest” fuels in terms of greenhouse gas emissions. It has also been dubbed as a very high-performance fuel; in order words it’s much better than corn ethanol.
Many vistas of Ethanol Industry
This industry has the potential to increase the productivity of Nigerian sugar cane ethanol producers.
This industry also has the potential to generate energy, ethanol sanitizer get, plastics, lubricants and other products.
In some countries research is being carried out into cellulosic ethanol – fuel produced from bagasse or the leaves, husk and other organic waste from sugar cane production, there is a probability that we will be able to blaze a trial in this regard if we get our act together.
If we succeed we would be taking rubbish – bagasse, biomass – and transforming it into fuel for our power plants and even our cars.
Intellectual Property in the Sugar Industry and the Agricultural Industry in Nigeria;
The basic types of Intellectual property prevalent in the Sugar Industry and our Agricultural Industry are the following; Patents, Copyrights, Trademarks, Community Trademarks, Geographical Indications and Trade Secrets.
Agricultural Innovation is often owned by the Companies or the farmers
Research and operations in Sugar Plantations, ethanol industry and the Agricultural Industry produce new ideas, agricultural manuals, planting procedures which are protected by Copyright.
Space technology and Rescue operations?
This is protected by Patents and it can be used for agriculture through weather forecasting, climate change analytics. Vision 20:20 has given some attention to the intensive use of satellite imagery to predict weather and climatic changes that influence agricultural production.
Space technology also helps pinpoint erosion, floods and droughts, also useful in rescue operations after a flood; it can be used in conjunction with Google earth to provide live feed for rescuers and in early warning systems for natural disasters like the recent flooding bedeviling different parts of Nigeria.
This uses aerial technologies to detect, classify and analyse soils and water bodies, it can be used to map out wastelands. Satellites provide useful information in diversification of crop; correct planning of planting and husbandry projects, migration of birds, for fisheries remote sensing permits us to map out the chemical composition of water bodies.
Agricultural Innovation has potentially transformed the Sugar Industry and Agricultural Industry from a commodity market to Knowledge/Innovation/Intellectual Property based industry.
All these innovations in Agriculture are geared at generating near accurate plans on what to produce, how best to produce, where to produce and new ways of using the produce.
Intellectual Property becomes a valuable asset to the Sugar Industry as a subsector of the Agricultural Industry in Nigeria, when it is registered and steps are taken to prevent competitors from accessing and using it for free. Intellectual Property Rights (IPR) states clearly who has the right to earn royalties or license fees from the use of a person’s idea, product or service. This also applies to agriculture, the technology involved, the data generated.
Conflicting Models of Agricultural Innovation
On the far left is the one is driven by Multinationals and relies upon private monopolies and genetically modified crops.
To the far right this model is led by farmers and their communities, with support from the public sector, and is based on the collective use of knowledge and resources for sustainable agriculture.
The most appropriate model would be a mix of the two models in varying degrees usually designed to suit our local peculiarity as Nigerians.
Benefits of Agricultural Intellectual Property;
In protecting innovation even in our Agricultural Industry, a key benefit of an intellectual property system is that a contractual right is only enforceable against the person who entered into contract with you; while a property right is enforceable against the whole world!
IPRs prima facie do not automatically encourage or reward innovation; they have to be properly contextualised within the ambits of problem solving.
In considering how different types of IPRs will impact agriculture in Africa, it is very important to consider what type of innovation Nigerian agriculture needs and who Nigeria’s agricultural innovators are and what exactly their innovations are.
A patent is a document issued, upon application by a government office (or a regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited (manufactured, used, sold, imported) with the authorization of the owner of the patent.
Patents cover things like cutting-edge technologies used in remote sensing, climate change analytics, precision farming, ethanol production and satellites.
The case law in the United States has grown rather rapidly since the early ‘80’s with the grant of a patent for bacteria that ‘ate’ oil spills. Another interesting case was the patent granted to the ‘Harvard oncomouse’, that has been useful in research on cancer.
A “trade secret” is defined as any product, operating formula, pattern, device or other compilation of information which is used in a business, which gets its economic value from being kept secret, and gives the business even farming a competitive advantage. Trade secret can be used to protect innovation not covered by patents like plant varieties.
Trade secret protection would cover issues like farming methodologies and farming business models.
A copyright gives the holder of such copyright the exclusive right to control exploitation, production and adaptation of such a work for a certain period of time.
Copyright exists in a work on the basis of originality and fixation. Copyright protection is particularly important to the protection of our New Sugar Master Plan (NSMP). It would cover maps, farm manuals, data generated from remote sensing and climatic analysis.
Geographical Indications(GI) are used to identify goods that come from a specific region or country, where a given quality, reputation or other characteristic of the goods is essentially attributable to its geographical indications. It tells consumers that a product is produced in a certain place and has certain characteristics because it was produced in that place.
When this happens under International Trade Law, the GI becomes a trusted indicator of the product’s characteristic. That’s when GI’S are given the function and importance of trademarks and are entitled to legal protection.
Protection of such marks ideally prevents third parties from passing off their products as those originating in the given region.
Popular examples are ‘Champagne’ for wine and ‘Roquefort’ for cheese from towns going by these names in France or ‘Darjeeling’ for tea named after a place in India.
Please note that it is probably not necessary for these indications to be geographical names as in the case of ‘Feta’ for cheese from Greece or ‘Basmati’ for rice from India and Pakistan as there are no places, localities or regions with these names.
Nigerian Farmers should Register Geographical Indications Pertaining to their Crops and Agricultural Produce
GI may be used by all producers who make their products in the place designated by a geographical indication and whose products share typical qualities. For example, “Switzerland” can be used by all Swiss watch makers which comply with the official production standards for Swiss watches, but “ICE” is the exclusive right of the Ice watch manufacturer.
How does this work in Agriculture?
Failure of Nigerian farmers to register their geographical indications relating to their crops will permit other countries to continue to use or even market their goods while making reference to Nigeria as the source of the content or the raw farm produce without paying Nigerian farmers a kobo!
In some cases local farmers may suffer not only loss of revenue, but may lose the right to market, manufacture and sell their own agricultural innovation, sell goods under their own geographical indications, license their agricultural patents if they fail to register (where applicable) their Agricultural Innovation usually protected by Patents, Copyrights, Trademarks, Community Trademarks, Geographical Indications and Trade Secrets with the relevant bodies locally and abroad.
A Possible example of loss
We are all familiar with the story of Malaysia coming to Nigeria to get palm kernel seedlings to go and plant in their country but now we probably import palm oil from Malaysia.
Nigerian Palm Kernel is probably not yet registered under the Geographical Indications [GI] section of the World Trade Organisation’s TRIPS Agreement, even though many European nations are probably using Nigerian palm kernel seeds.
Nigerian cocoa seed is also probably not yet registered under the Geographical Indications [GI] section of the World Trade Organisation’s TRIPS Agreement, even though chocolatiers in many European nations are probably using Nigerian cocoa seeds.
Nigeria loses even more money when there are products on sale in foreign countries that were either named after the Nigerian Farms or areas where the palm kernel or cocoa used to make them was produced or the palm kernel or cocoas origin was prominently displayed on the packaging as Nigeria or farms in Nigeria without paying any license fees to Nigeria, the farmers or the communities involved.
The Agricultural Transformation Agenda (ATA) and the New Sugar Master Plan (NSMP) approved by the Federal Executive Council (FEC) are great steps in the right direction.
Proper management of agricultural resources, proper storage and mass mobilization would help to push Nigeria unto the path of food security and the addition of ethanol as an energy source has the potential to power our industries, homes and even our cars.
Nigerian farmers would continue to suffer losses of potential revenue for as long as they only concentrate on the commodity aspect of Agriculture while neglecting the possibility of Agricultural Innovation/Intellectual Property present in Agricultural Produce.
Here is an appeal to our government officials to ensure that our Agricultural Industry and ethanol industry are protected from IP predators as a crucial part of our national security.
Given the crucial importance that Agricultural Industry and ethanol as an energy source have for economic life, it might be of interest to make sure that ATA and NSMP are properly implemented such that it affects positively the farmers and the general populace.
Olufola Wusu is a Commercial, Oil and Gas and I.P. Lawyer based in Lagos
Olufola Wusu Esq. © 2012
Olufola Wusu is noted for his “dynamic practice” and “commercial acumen”. He is praised for his “first-rate skills” in assisting clients…