Intellectual Property Rights and Sports: A Paper Presented by Beverley Agbakoba-Onyejianya, Sports & Entertainment Lawyer at the World Intellectual Property Organisation “Reach for Gold” Event Hosted by The Friends of the Creator Artistic Foundation – April 26, 2019, Lagos.
Asides from Game of Thrones, I’m certain everyone here will agree with me that the Olympics, the Federation Internationale de Football (FIFA) World Cup, UEFA Champions League, and Premier League are the other activities that bind the world in a heartbeat, these popular sports events blur cultural, political and ethnic differences by promoting dialogue and dousing tensions. The excitement that comes with the spirit of competition in these sports events, is what makes sports such a highly enjoyable and popular activity and past time. I remember a time when sports were just for viewing pleasure, when our fathers and uncles assumed the jobs of off-site assistant coaches in the living room, shouting and yelling, almost as if they had telepathic skills through which they could instruct the players on who to pass the ball to or how to flank the competitors on the pitch. At present, the sports sector has evolved, beyond ordinary viewing pleasure, it has become a commercially viable sector, and contributes immensely to the economies of mature markets, yet emerging economies like Nigeria still grappling to realise the untapped potentials that lie in the sports industry.
The incubation of ideas and its dissemination in varying forms within the sports industry has made sports a viable stimulant for growth and development in the sports economy and the common denominator that the success story of the sports economy is attributable to, is the permeation of intellectual property rights through avenues of Patents, Trademarks, Copyrights and Trade Secrets.
The underlying feature of the Intellectual Property rights is hinged on the popular saying “ideas rule the world”, it is a mechanism put in place to reward creators/innovators for their ingenuity and also provides a platform for them to be able to reap the fruits of their labor.
Now in order to demonstrate what the interplay of Intellectual Property rights and sports is, I will take us through an expository journey into the make-up of the intellectual property rights mechanism as earlier stated, that has made countries like the United Kingdom and the United States the talk of the town, starting with Patents.
Patents may be defined as legal rights that confer on inventors of new and useful products and processes, the right to exclude others from the commercial exploitation of the invention. It confers legal protection and recognition on the outcome of inventive work in diverse areas useful to human existence and progress. Its very essence beckons; Imagine it, and it can be so.
Take the inception of Nike for instance; a running coach named Bill Bowerman decided to take on the task to improve traction and shock absorption in training shoes. He began his experiment by using his wife’s waffle maker to mold rubber spikes on the soles and created a superior running shoe he named Waffle Trainer. The innovation revolutionized the sneaker industry and that man founded Nike alongside a student of his, Phil Knight, which today is a multinational corporation that is engaged in the design, development, manufacturing, and worldwide marketing and sales of footwear, apparel, equipment, accessories, and services. As of date, Nike has obtained thousands of patents worldwide and now has a patent portfolio that rivals that of many leading companies across other industries.
It is noteworthy to state that once a patent has been registered in Nigeria as well as the world over, it prevents others from taking advantage of the invention, in a manner that is not authorized by the patentee or permitted by law. In this way, a properly operated patent system provides a conducive environment for an inventor of a new and useful product to benefit from the intellectual effort exerted and also the investment of time and resources, free of the hindrance of copiers or imitators. Once the patent has been registered, the patentee has exclusive right to enjoy his or her invention until the expiration of the twentieth year from the date of filing of the patent application. (Section 7(2) of the Patents and Designs Act)
In Nigeria today, our technological brilliance is exerted on financial solutions, with companies like Paystack and Flutterwave blazing the trail and that suggests one thing, that we are indeed lovers of money. However, in the sports industry, we are yet to blossom into industrialization and technological development, instead, we are comfortable beneficiaries of the inventions of the mature markets.
Consequently, it is safe to say that Patent is the most underutilized and untapped area of intellectual property rights in Nigeria. Although I am optimistic and my optimism is rooted in the throng of tech-savvy generation we are breeding today, they have the penchant to change the narrative when it comes to innovation in the sports industry. However, we cannot get to that promised land if we don’t create an environment that encourages and incentivizes creators to bring their imaginations to life.
The trail of patents in the sports industry in the world over has heralded technologies that help athletes jump higher, swim faster, cycle longer and hit a ball harder and farther, these pockets of innovations are all products of ideas conceived by forward-thinking individuals coupled with the platform afforded them by an enabling environment with robust intellectual property protection systems.
Copyright is also another potent revenue generator for the sports economy, it maintains the vitality of sports by keeping fans interested and inspired. This arm of intellectual property rights protects the expression of an idea in a definite form and bestows on the creator or owner, the right to produce, reproduce, make replica copies, market, sell and adapt the work into several formats, to the exclusion of others except through assignment, testamentary disposition or the grant of a license. The areas of sports where copyright abounds are the literature contained in game-day programs sold to fans and supporters, the merchandise, the broadcasting and media rights, ticket sales, the software of computer and online games.
The infringement of copyright is almost the order of the day in the Nigerian sports industry, with thousands of fake jerseys flooding the markets and digital piracy. It seems almost as if our system indulges the copiers to the detriment of the creators and it has harmed the society and dampened our creative capacity because many are discouraged to flourish in the face of the knowledge that creativity isn’t fully protected. The only way an economy can flourish and the public prospers is when governments recognize the value of placing a robust IP system at the core of their legislative, regulatory and judicial frameworks. Although, we have these laws, however, we are lax in enforcement.
We need to transcend from a government-run sports ministry to a more commercialized football industry because as long as government continues to ‘spoon-feed’ the football federation and professional clubs in Nigeria, it may be difficult to discover all the business potentials of the industry and that would ultimately stifle the exploitation of copyright in the sports industry by stakeholders.
We also need to indulge in sports marketing by strategically promoting our domestic matches through various media campaigns and ticketing models which would eventually translate to increased gate takings. Consistent fans patronage and support will definitely pull higher shirt sponsorship bargains, TV rights, stadium signage advertisements, licensed merchandise deals, and players endorsements.
Furthermore, trademark as an intellectual property right abounds in all the sectors that make up the sports sector, namely teams & leagues, sporting goods, broadcasting and apparel & sportswear. It is in the brand identity reposed in each brand participating in the sports industry or sports economy and provides protections for marks, symbols, logos, slogans, names and so on, that distinguishes the products (goods/services) of one business to another.
Trademarks let customers recognize the products of a particular business, and they’re an essential part of branding. It is no gainsaying that strong branding increases prices, customer loyalty, revenue, and growth. For example, Nike’s swoosh symbol or Adidas’s three stripes make merchandise like shoes, shirts, and jackets more valuable because they guarantee quality. There are a lot of use for trademark protection in the world, chief of which are registering of nicknames by sports celebrities, catch-phrases, mascots and this goes to show that in Nigeria, we are merely scratching the surface. We need to build commercially potent brands that would compete transnationally.
At a time, the legendary football club, Real Madrid signed a deal to promote Spain and Madrid as tourist destinations, what was seen in play with respect to this move was that Real Madrid leveraged on the goodwill the club had amassed over the years and projected Spain and Madrid to a potential audience of 300million people because of its worldwide fan base. Just imagine, with the cult followership Cristiano Ronaldo has, he should do a video where he promotes our jollof rice as the best he’s ever had, we would be vivid to the world and Ghanaians would have no choice than to throw in the towel. This instance typifies the opportunity of a domino effect in the trademark value creation. We all know Cristiano Ronaldo is a dominant player who has developed his own individual brand and that has opened the floodgates for business opportunities for him.
In sports, the competition is ever so intense, that athletes and their coaches meticulously explore any competitive advantage they can achieve land that includes gathering proprietary information in the form of statistical analysis, scouting reports, dietary regimens, physiological metrics, and psychological assessment techniques. This is what is termed Trade Secret, it is the modus operandi of a business that it can’t divulge else it gets torpedoed in the business world. Sports gear often features secret new compounds and materials to allow athletes to perform better. Companies invest heavily in elaborate focus groups to find the right mix of features and designs to make their products more attractive and marketable. In Nigeria today, we haven’t fully blossomed to the level where we see trade secrets as properties worth protecting, I don’t even think we are conscious of the underlying essence of trade secrets, we just play the sports. Although trade secrets are not intellectual property rights in themselves, they involve practices through which a business seeks to gain an advantage over its competition.
In the U.S Chamber International IP Index 2018, Nigeria ranks 42 out of 50 countries in the assessment of economies whose intellectual property systems provide a reliable basis for investment in the innovation and creativity lifecycle. The report opined that the enforcement environment in Nigeria is highly challenging and that the rates of physical counterfeiting and online piracy remains high and public awareness of the value of IP remains low.
Although the Nigerian Copyright Commission (NCC) continues to be an active voice of the importance of protecting copyright and fighting piracy there is still a lot to be done to engrave the importance of intellectual property rights in the minds of the populace, starting from everyone seated here today. In 2017, the agency continued with its enforcement activities, including arrests, seizures, and antipiracy operations.
In a bid to adopt international best practices of Intellectual Property Rights Protection cum Enforcement, Nigeria ratified the WIPO Internet Treaties in 2017. Nigeria first signed these treaties in 1997. The ratification of the WIPO Internet Treaties shows Nigeria’s commitment to upholding the highest standards of protection and enforcement of copyright and related rights. Nigeria is also a signatory to and has ratified the Patent Law Treaty. Nigeria is not a contracting party to the Singapore Treaty on the Law of Trademarks and has not concluded a major FTA post-TRIPS membership that includes substantial provisions on IP rights.
In all, we have taken decisive steps but we need to commit to its implementation because at a time such as now, when oil, the nation’s principal source of foreign exchange earnings is facing a precarious future, the time to transform the nation from a traditional commodities-based and import-driven economy to a knowledge- economy exporting expertise, talents, value-added products and tech-savvy inventions is ripe. We need to invest in the youths by creating an environment where they can hone their skills and an enabling environment that will stimulate sports innovation thereby benefitting the innovators and the sports community at large.