• The Regulator v The Regulated: Governance Issues of Nigerian music collecting society, COSON continues


    Between 2014 and 2017, the IPKat’s Merpel provided the IP community and the general public with information and insights from the unrest and management issues at the European Patent Office (EPO). In that same spirit, AfroLeopa has taken it upon herself to provide readers of this blog with relevant information regarding the governance issues of Nigeria’s major collecting society, Collecting Society of Nigeria (COSON).
    Last month, AfroLeopa attended a press conference co-convened by the president of the Association of Music Business Professionals (AM.B-Pro), Mr. Edi Lawani under the auspices of Concerned Stakeholders’ Forum. The majority of the music artists and COSON members, who spoke at the event, aligned themselves with the statements made by Mr. Lawani urging the NCC to lift the suspension of COSON’s licence in the interests of artists and copyright owners. Regulation 20 (2) of the CMO Regulations stipulates that a suspension order from the NCC may be commuted to a revocation of licence if the collecting society fails to comply with the directives that led to its suspension in the first place.  Some copyright owners have expressed supportfor the licencesuspension.

    A communiquéwas issued in which the NCC was urged to audit COSON and also collaborate with specialisedagencies such as the Nigerian police and the Economic and Financial Crimes Commission (EFCC) to arrest the ousted and allegedly reinstated Chairman) Chief Tony Okoroji. [As far as AfroLeopa is aware at the time of writing, no arrests have been made and there has been no directive has been issued regarding lifting the suspension of COSON’s licence.]

     The powers of the NCC as sector regulator for the copyright industry are wide. Further, the NCC has a discretion regarding the power it chooses to exercise in any given situation involving collecting societies. For instance, the NCC has a choice to treat the COSON leadership tussle as a dispute between members and apply its dispute resolution powers under Regulation 15 of the CMO Regulations. As required by the CMO Regulations, all Board members of COSON, with the exception of the General Manager, are artists and copyright owners. It may also decide to appoint an auditor to investigate COSON’s affairs, especially its governance structures and processes. Further, it may (as it has elected to) suspend COSON’s licence to operate as a collecting society.

    However, it is important, especially in governance issues of collecting societies that the discretion of the NCC and the powers it exercises are effective and able to achieve desired results.  It is equally important that petitions/suggestions to the NCC in such instances are couched in language that shows the correlation between each specific powers, available facts and probable results.

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  • My Top 25 Songs of All Time

    Frankly, this was a really tough project. My musical tastes range from rock to hip-hop to blues, from Pink to Ottmar Liebert to Kendrik Lamar. The list includes songs from almost five decades, with a significant Canadian component. I like Victor Hugo’s…

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  • Nuances of Patents and TK

    A recent article in the Mail & Guardian (here) claims that the European Patent Office recognizes Jans Roosjen, a Dutch man, as the “inventor” of teff flour and associated food products.  The article also states “Roosjen also has a patent for the “invention” in the United States — though he is patently not the inventor of a product that has been around for millennia.”

    As is almost always the case when it comes to patents, the situation is not as straight forward as this article makes it seem.

    This blogger found EPO patent EP1646287 (B1) (access it here), with the above named inventor, and the title “Processing of Teff Flour”.

    Claim 1 of the patent is directed to “A flour of a grain belonging to the genus Eragrostis, preferably Eragrostis tef, characterized in that the falling number of the grain at the moment of grinding is at least 250, preferably at least 300, more preferably at least 340, most preferably at least 380.” In short, then, this patent doesn’t cover “teff flour and associated food products” except in the case that the flour has a “falling number” greater than 250.

    Without getting too technical, here’s an excerpt from the patent description to explain the falling number: “The falling number obtained relates to the amount of undigested sugars in the starch. The higher the falling number, the lower the alpha-amylase activity and the fewer digested sugars are present in the grain.” In less technical terms, the higher falling number apparently allows the teff products to be used in making products with more “stability” and less of an “unattractive taste and/or structure.”

    Interestingly, it seems that the falling number can be increased simply by storing the teff post-harvest for at least several weeks.

    Regarding traditional uses of teff, the patent background section states the following: “This crop has been cultivated for human consumption in mainly Ethiopia and Eritrea for more than 5000 years…  Teff flour is traditionally used for preparing injera, a spongelike, gray pancake with a somewhat sourish taste. Injera is usually made from a flour mixture consisting of equal parts of Teff flour and wheat flour diluted with water and yeast. The diluted flour mixture is usually fermented for three to four days before it is baked.”

    Image result for teff
    Patented teff?  Tough call. 

    As for the US case, there are no related granted patents but there is a published application.  The application was abandoned in 2013 (USPTO data – see here), so there are no patent rights in the US.

    There are no related patents on the African continent (according to EspaceNet data), although Ethiopia is not a member of the PCT so this blogger was not able to determine whether a related Ethiopia application was filed.

    So, is injera patented?  Despite the broad statements in the Mail & Guardian article, traditional injera is not patented, as it is described as prior art in the background section of the granted patent. Instead, injera made from a very specific form of teff flour, with a specific property obtained by weeks-long storage of the teff post-harvest, is patented in Europe.

    Is this an exercise of hair-splitting (or, more appropriately, teff splitting)? Possibly. This blogger finds it hard to believe that no Ethiopian prior to 2003 ever made injera with teff that had been stored for a few months. Of course, the question is actually whether such a process is documented – i.e., contained in the prior art. The simplest way forward, then, is for someone (e.g., the Ethiopian patent office) to find a reference from prior to 2003 that describes the use of stored flour in making teff. As this blogger understands EPO practice, national-level court cases would now be required to use such a reference (if found) in invalidating the patent. 

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  • United States Declaration of Independence

    Excerpt: July 4,1776

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

    Continue reading United States Declaration of Independence at Patently-O.

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