PROTECTING CREATIVE BUSINESS IDEAS

Tomi asked me for legal advice – one that would ensure that some artistic and commercially viable ideas of hers are not lost to some establishments soon to receive her and her proposals. Tomi, – creative? Definitely, and budding with sellable ideas and she is only half way through her education at the University of Lagos. You might catch her looking lost more often than seldom, gazing high into the sky, sinking deep in thoughts and then coming out with her ‘babies’. Unfortunately she has had to watch some of these beautiful, in fact maybe ugly, ‘babies’ – nevertheless hers, taken away without her consent and indeed without even half a dime! In the process of trying to sell her ideas, she gets robbed; the very person she hopes will bring the ideas to life, or some other, does so, excluding her, and without any remuneration or credit. Naturally, she didn’t want continuous reoccurrence; that’s why she came to me.

Of course Tomi is not nearly alone, there are several Nigerian youths on the streets (and offices too) of Lagos and beyond with inspired, promising, interesting and truly commercial ideals who have fallen prey to some often adult/older individual or company who they perceived had the strength to turn their ideas into reality, make their dreams come true. Tolu is just another. He got the shock of his life (maybe just one of the several shocks of his life) when his idea for a reality television show came alive on Nigerian television stations without his knowledge or involvement. His exact words/lines as contained in a proposal he had taken around were used, thus there was no doubt that it was his work live on TV! This is not an attempt to suggest in the least that only the young have and do fall victim but the fact that the young are usually at a disadvantaged negotiating end - lacking in experience and clout makes them more vulnerable.

Now, Tolu and Tomi are friends but Tolu is more experienced with this dem thief my idea thing. We are gathered at a table in a club in Ikeja; Tolu tells Tomi, with all the love in his heart, “There is nothing you can do, at best, pray”. Tolu is looking at me, with all the hope in her heart, “Could that be true?” Well, it’s almost true!

The easiest way for anyone to have the desired protection is to have the receiver of a proposal sign a Non-disclosure and Non use Agreement. That would prevent a lot of headaches; and claims, where breaches occur, would be much easier to prove and thus recover. However, a little research I carried out revealed that these proposal receivers, whether intending the feared mischief or not, never sign such agreements; they just would not sign, after all, proposals are flying in from right, left and center; why should they incur an added responsibility – a potentially dangerous one for that matter, especially since such Non-disclosure and Non use Agreements would only be most potent for the creative mind if they got signed before the details of their ideas got exposed to the receiver and not after. Why then would anyone want to sign such agreements before identifying the actual value of the idea? The receivers can’t get it! However, for the benefit of doubt, lack of scientifically gathered data, and not wanting to fall into a fallacy of generalization, not all receivers would always refuse to sign a non-disclosure agreement; there is however a higher probability that a proposal adorned with such Non-disclosure and Non use Agreements would not be read by the receiver not alone approved by him because of the adornment than one not so adorned.

It therefore follows that this method, as efficient as it would have been is not the most practicable in Nigeria and as such people who want their ideas protected are always searching for alternative methods. Other available options will thus be considered.

‘But really, why can’t one just copyright the ideas, register them or patent them’ – this I have heard one too many times. I can understand where the ‘speakers’ are coming from and where they intend to go speaking like that; but I know they will never get there following the route of such statements. My apologies. The route that is most likely to take them there is tricky, delicate and can easily be missed. For an understanding of the route to ‘salvation’, an understanding of the ‘speakers’ route and why it wouldn’t lead anywhere –not even ‘damnation’, is necessary. The law on copyright in Nigeria does not protect ideas; rather, it protects the expression of those ideas. The key word is ‘expression’. Section 1 of the copyright Act of 1988, CAP 28, LFN 1990 lists works eligible for copyright as follows:

1. Literary works;
2. Musical works;
3. Artistic works;
4. Cinematograph films;
5. Sound recordings; and
6. Broadcasts.

Section 2(b) of the same Act states that the work must be fixed in a definite medium of expression to make it eligible for copyright. I believe the rationale for this position is that the fact that an idea was conceived by a certain Mr. A does not mean that a Mr. B cannot get the same idea; and that Mr. A got it first should not entitle him to an exclusive possession or use of that idea as that is what copyrighting the idea would imply. That is reasonable to me and I sincerely wish our Nigerian legislature could sincerely claim credit for such thought. That is however not to be. So, a raw idea, no matter how ingenuous it is, has no protection under the Nigerian copyright law. Also, there is no such register or registrar for ideas in Nigeria. None has been established by law in any part of the country whatsoever. That means one can’t just register the ideas, as simple as it sounds; and for the patent ‘route’, patents are simply granted to inventors not idea generators. The nature of an object for a patent has to be scientific, technological etc; and it has to be an invention. A method for doing business is definitely excluded.

For this writer, the ‘route to salvation’ for the Nigerian young (and indeed older) creative and industrious minds lies in the sufficient conversion of the idea to the best suited category of protected works under the Copyright Act. It is under these categories that cover lies. Of course, the now, works, would inevitably contain the ideas. This might as well be tantamount to self execution of the projects thereby defeating the whole purpose of writing proposals and indeed this article. One must carefully put the idea into expression in suitable and covered categories without going ahead to completely execute the project by oneself. What is important to note here is that the required act is to sufficiently convert the ideas and not completely self execute the project. Drawing the line between sufficiently expressing the idea so as to be protected by law and executing the idea can be tricky. Identifying the best suited category can equally be tricky.

What has been provided here is only a pointer in the direction to go; it is not a complete road map for all circumstances. It turns out that the minds are not as helpless and without cover as they might seem. Tolu was wrong but he had a good reason to think and talk as he did.