MY AMERICAN EXPERIENCE

I was a participant in the 2009 International Visitors Leadership Program of the

United States Government recently. The programme was specifically a Multi-
Regional Project on Protection of Intellectual Property. I had the honour of being
part of a team of 17 participants made up of private legal practitioners, judges, IP
law enforcement officers and practitioners drawn from 17 countries in Africa, Middle
East, Asia, Eastern Europe and Latin America.

The programme was designed to expose participants to the American IP law

enforcement community, the creative society, the academia and the general
American society. And after 3 weeks, the participants agreed that the organizers
had succeeded in achieving all their objectives. The programme made us to
traverse the wide spectrum of the territory of the United States as we moved from
Washington to Los Angeles and from Los Angeles to Dallas/Fort Worth, finally
ending the trip in New York. It was indeed very interesting and extremely
enlightening.

Before now, I had thought that the fact that Nigeria and the United States practice a
presidential system of government was all it takes to draw a similarity between the
two countries. Until this trip, I had assumed that I knew all that was worth knowing
about the American political system. I had also thought that I had seen quite
enough of the world, having visited a few countries in Africa, Europe, and Asia. I
also had a stereotyped impression of the average American seeing her as
unfriendly, believing that the few ones I had met were nice only because, as
diplomats, they were trained to be. Without stepping on some soils, some of us can
tell much of what obtains in certain countries. That is the essence of reading, now
ably aided by visual images received on TV and the internet. But then, real life
encounters could sometimes present an absolutely different picture.

The trip did indeed correct some of my misconceptions and helped in providing
answers to some of the questions that had bugged my mind for long. I learnt certain
values Nigerians could emulate and the direction our country could move in order to
achieve what America already has: “GREATNESS”. I saw enthusiasm among all
Americans to do whatever work they do. At the Universal Studio for instance, where
we went for a tour, it was clear that the Americans understood and have captured
all that tourism is all about. We saw how films are made, how motion picture
producers play on our imagination to produce blockbusters. I left the place with a
firm conviction that the human mind has an incredible capacity to be creative. But
the workers in the Universal Studio are the real story. These industrious men and
women are so involved in what they do so much that you cannot but see them as
tourist attractions to be enjoyed too. They are undoubtedly an integral part of the
tour. Their enthusiasm was simply infectious.
I also saw the love Americans have for their country. At the Rodeo in Fort Worth,
there came this little lady on a horseback holding in her right hand, an American
flag. All rose, with those wearing cowboy hats removing and pressing same against
their hearts. With klieg light riveted on the fast moving lady and the horse, as the
national anthem was sung loudly by all, it was really a moving sight. I couldn’t help
noting that the venue was in the midst of Texas, a state that just recently
threatened to secede from the Union.

One other thing, by the time I left New York, I was certain that the average
American had a social worker gene in her. My colleagues and I had the opportunity
of interacting with a number of volunteers, men and women doing marvelous things
out of sheer patriotism for their country, state and local community. These are
people, not idle in anyway, having different professions and status in the society
offering their time, money and services to achieve certain altruistic goals. Their
selfless contribution to the socio-economic development of the United States is at
the core of the concept of Americanism, that uniqueness that makes the United
States of America the United States of America. Their role in fostering global peace
and understanding is indeed invaluable.

Some of my impression of the American man and family also suffered a revolution.
By visiting homes and interacting with American citizens on the street, I was able to
see that Americans are not really arrogant as I had believed them to be. That
perception was largely based on the ‘I don’t give a hoot about the world’ attitude of
former President George W. Bush. I was shocked to see that many of the people I
discussed with did not agree with that attitude too. Although all Americans may not
be the same as those I related with in only 3 weeks visit that saw me touch four
states and Washington DC, but I know that the Americans I met, travelled with, ate
with and played with and sought road directions from are hospitable, friendly and
ever willing to help.

We learnt how the American political system works. And it was such a huge
dissimilarity with Nigeria that the average American is more interested in his local
affairs than in state and national matters. The neighbourhood associations, private
organizations like the Community Development Associations in Lagos State, were
very powerful bodies. We were told how a Washington neighbourhood association
was able to stop the late Rafik Hariri, in spite of his closeness to the then President
Bush, from constructing a particular type of building on a piece of land he
purchased. The association believed the type of building would adversely affect the
neighbourhood landscape and that was it. Mr. Hariri was at the time the Prime
Minister of Lebanon. Not even the President of the United States could help him.
Participation in city and county politics was said to be more popular than in state
and national politics.

The training on IP Protection was impactful. One major lesson is that IP law
enforcement in the US was taken very seriously by both the political leadership and
the IPR owners even though no specific agency was charged with enforcement of
the various IP laws. PTO and Library of Congress are really for administration.
Different agencies at the federal level, nevertheless, conduct investigations into IP
infringement cases while the Department Of Justice serves as the coordinating
centre for most of the IP crimes investigations. One other important point again is
the level of collaboration among the various agencies involved in IP law
enforcement. The Customs and Border Protection, Immigration and Customs
Investigation, the Federal Bureau of Investigation, etc all work together adding
strengths to the other agency’s strength all for the common goal of fighting IP
crimes in the country.

Furthermore, even governments of some states, such as California and New York,
where counterfeiting posed a serious challenge, enacted anti-counterfeiting
legislation aimed at intra-state trade in counterfeit products to complement federal
IP laws and without breaching the rule of ultra vires. In California, for example,
owners of premises which are used for the sale or storage of counterfeit products
are liable to penalties which, in certain circumstances, may involve forfeiture.

For several years now, the Government has been relying on a report prepared by a
private organization – the International Intellectual Property Alliance (IIPA) – called
the Special 301 Report to determine the type of engagements it wishes to have with
countries listed in the report. Countries mentioned in the different categories
therein are actually those regarded by the body as condoning or not doing enough
to combat IP theft in their countries. And sometimes, economic sanctions are
recommended. Happily, for the fourth consecutive year, Nigeria was removed from
the list. You are left in no doubt that the issue of IP theft is on the front burner of the
attention of the Governments of the United States and its component states. But
can we say the same of the Nigerian Government? A lot has been said about the
incredible potentials of IP as an alternative source of national revenue in Nigeria.
This is however difficult to harness in the absence of a national IP policy that
recognizes the role of IP in Nigeria. It is only from here that legislative reforms and
adequate funding of IP enforcement, which are some of the banes of the Nigerian
Copyright Commission presently, will be finally addressed. There is also nothing
wrong with states in Nigeria, those where trades in counterfeit products are
pronounced like Lagos State, enacting legislation that can borrow some useful
provisions from the California’s anti-counterfeiting law.

The private sector in the IP sector is another issue. There are so many civil society
groups established to promote and project the interests of their members. Besides
lobbying for favourable legislation, these bodies, particularly in the recording and
motion picture industries, employ private investigators or full time personnel tasked
with investigation, who go about to gather information about piracy activities and
perpetrators. Such intelligence is then transmitted to the authorities and is used as
a basis for enforcement actions. These associations also promptly come to the
offices of law enforcement agencies to give statements whenever the agencies
carry out a seizure of pirated products ex-officio.

The Nigerian scenario is different. For about 20 years, I have been involved in IP law
enforcement in Nigeria. I have liaised with the Nigeria Police, Nigerian Copyright
Commission, EFCC, Nigerian Customs, Nigerian Drug Law Enforcement Agency and
a number of foreign agencies in the battle against piracy and counterfeiting.
Recently, I took up the task of leading the enforcement efforts of the Nigerian
Copyright Commission. The summary of my experience is that most of the
industries’ associations and rights owners in the copyright community are not
cooperating with the Commission. First, only a handful of these bodies are investing
in investigation and intelligence gathering. Two, the Commission has found it
impossible to get rights owners to appear to make statements over seizures the
Commission made during raids. For example, the Commission recently embarked on
ex officio night raids of some CD plants and this exercise had resulted in a harvest
of pirate plants with thousands of suspected pirate optical discs seized. In spite of
repeated telephone invitations to the rights owners since April, none had turned up
to give written statements on authorship and identification of the suspected pirate
products which will be used to prosecute the plants. One manager of a popular
Nigerian artiste even said on the telephone ‘Make them pirate his work’, in utter
unbelievable indifference.

California was reputed to be the 6th largest economy in the world. Every informed
person knows that that economy is built on IP. That is why both the government and
the private sectors partner effectively in fighting the menace of counterfeiting and
piracy in the major cities of the state. The Los Angeles County Sheriff’s Office works
regularly with rights owners through investigative consultants who represent these
rights owners and supply needed intel used in nabbing pirates. What the American
example tells me is that it is extremely difficult for the Nigerian Copyright
Commission’s enforcement efforts to go far if the rights owners themselves are not
keen about protecting their own property. In protecting their IP, rights holders must
realize that the place of collaboration between themselves and the Commission is
indispensable.

Furthermore, there must be effective and strong inter-agency collaboration among

the agencies of government in order to achieve the maximum in IP law enforcement
in Nigeria. Nothing or little can be gained in an atmosphere of rivalry and rancor. It
is important for each agency to understand its statutory responsibility and carry out
that duty recognizing the role of the other agency all with a view to serving the
fatherland better in reducing IP crimes in the country. Much more will be gained in
collaboration, for instance, between the Lagos State Government agency fighting
sale of porn materials and the Nigerian Copyright Commission, for those who make
and sell pirated books and optical discs also sell pornographic publications and discs
too and vice versa.
Ultimately, even though the programme has impacted in no small measure in the
manner I do my job; it is the burning desire I have to offer voluntary service and
what I make of that desire that will be the test of how much value the programme
has added to my life. Even if I fail that test, there is no way that my new perception
of Americans and the American society will not reflect in my thought system as a
member of the global village as I move on with life as a Nigerian.

Akeem Oluwole Olaniyi Aponmade, Esq.