by Legalnaija | Jul 2, 2020 | Uncategorized
Artificial
intelligence first made appearance in science-fiction books and movies, like the
Metropolis of 1927, in the first half of the 20th century which are
believed to have steered the consciousness of mathematicians, scientists, scholars
and philosophers to the concept of artificial intelligence. The first humanoid
robot, Herbert Televox, was built by Ron Wensley in
1927. Herbert Televox could lift a receiver to accept a phone call, he
could also control simple processes by operating switches according to the
signals it received. Herbert Televox, however, lacked the ability to speak and
was simply humanoid in appearance (1). However, robotics
has since then advanced in both appearance and abilities. Sofia is a particularly
remarkable creation as she is the first robot to achieve citizenship status (2). Sofia has a family,
a delicate appearance and is capable of more than 50 facial expressions. AI is
affecting the world’s economy and has become an essential part of the
technology industry as it makes appearance across the world. As machines become
increasingly capable, it is bound to not only rely on Intellectual Property law
but transform Intellectual property concepts, triggering a need for IP law
reforms.
Technology is
advancing at an unparalleled speed. Faster and quicker than we can meet up with
or make preparations for. Generally speaking, Technology and Innovation
intersect with Intellectual Property rights as they confer exclusive rights to
inventions and creations on the inventor or owner of a work, protecting said
works from idea theft or expropriation, consequently encouraging inventiveness
and out-of-the-box thinking. Today, Technologies are advancing beyond what
available Intellectual property provisions can secure. The implication is that
law makers are now faced with an obligation to revisit and modify laws suitable
for the upsurge in discoveries of new technology and knowledge across the
globe.
Artificial Intelligence,
also called Machine Intelligence, is distinct from Natural Intelligence
displayed by humans and animals. Although there is no universally accepted or
all-encompassing definition to the concept, it can either refer to the
intelligence displayed by machines or a discipline of computer science that is
aimed at developing machines and systems, such as robots, that can carry out
tasks and chores normally considered to require human intelligence, such as visual
perception, speech recognition, decision making and translation between
languages. Machine learning and deep learning are two subsets of AI (3).
Is Nigeria ready for
AI? Nigeria’s Federal Ministry of Education is making plans to include robotics
and artificial intelligence (AI) in the post-basic and secondary education
curricula in Nigeria (4).
According to the plan, this is aimed at bringing students up to par with 21st
century technology and education standards. This is expected to begin with the
104 federal unity colleges spread across the country’s six geo-political zones.
While we may argue whether or not Nigeria is ready and why, what is important
is that it is time Nigeria keys into AI technology bearing in mind its
potential benefits, how it will help citizens to live better lives, how it will
upshoot her economy, bringing Nigeria to limelight. Recently, the University of
Lagos, in an effort to improve learning and safety in the face of the COVID-19
outbreak took delivery of some robots. Ready or not, it is happening.
AI
and Patents
According to the
World Intellectual Property Organisation (WIPO), since the emergence of
primitive AI in the 1950s, researchers have published over 1.6 million
AI-related scientific publications and filed patent applications for nearly
340,000 AI-related inventions (5).
The impact of AI on Intellectual Property (IP) is circled around patent law and
patent protection of AI technologies (6).
However, more relevant IP concepts that protect AI are Copyright and Trade
secret.
Patent protection
gives its owner the legal right to exclude others from making, using, or
selling an invention for a limited period of time on the condition that the
patentee will publish an enabling public disclosure of the invention at a
future date. Patent protection is highly valued among AI developers as it gives
the patent owner a monopoly. Hence, competitors who are found to have exploited
the patented AI technology will be ordered by the court to cease the act of
infringement whether or not they had knowledge of the patent or patented
technology at the time of developing their technology. Nonetheless, lack of
knowledge may be relevant to whether the court also awards damages or an
account of profit.
What if inventions
are made by an AI system? According to Stephen Hawking, “…there is no deep
difference between what can be achieved by a biological brain and what can be
achieved by a computer. It, therefore, follows that computers can, in theory,
emulate human intelligence and exceed it”.
Under the United
States Patent Law, inventor is defined as the individual or individuals who
invented or discovered the matter of the invention. Many have argued that the
law’s references to an inventor as an “individual” could be applied to a
machine. However, the US Patent and Trademark Office (USPTO) has ruled that
artificial intelligence systems cannot be credited as an inventor in a patent (7). This position is
the same in the United Kingdom and in Nigeria. Hence, patent may be claimed by
the inventor or the owner of the AI system.
AI
and Copyright
Copyright protects
the software programmes which are the “building blocks” of the AI system (8). In Nigeria,
computer programs are eligible for copyright protection under literary works
provided that they satisfy the requirement of originality, ownership and
fixation under Section 1 of the Copyright Act. Copyright protection arises
automatically upon creation and extends to the expression of the source code
embodied in the software that underlies the AI technology. In contrast to
patents, a copyright term is much longer (the author’s life plus 70 years) and
copyright protection is cheaper and less strenuous since it is not required
that the documentation be registered (5).
Do AI systems own
copyright in their works? Another facet to this discourse is whether artistic, dramatic,
literary or musical works that are creations of Artificial Intelligence are
protectable under Copyright Law. As AI systems advance, we find them doing
things that ordinarily require human intelligence or creativity. A suitable
example is E-David, a painting robot, who takes pictures with an added camera
feature and making his own decisions, draws original pictures or paintings from
these pictures. According to Section 2 of the Copyright Act, provided that a
work is not copied, has an element of originality and is fixated, it is
protectable. However, the copyright act is silent on whether the author of a
work can be anything other than a human. Seeing as AI machines are yet to be
recognized under Nigerian Laws, they cannot own copyright.
AI
and Trade secrets
Trade secrets is
highly effective in protecting important business information especially from
competitors. Trade secrets trade secrets assist with the non-disclosure of
information, which includes formulae, compilations, programs, methods, techniques,
processes, designs and codes of various AI inventions (9),
which have a quality of intrinsic confidentiality, the secrecy of which is highly
valuable to its owner. They
are enforced through actions for breach of confidence or, if a non-disclosure
agreement or clause exists, breach of contract (5).
Like copyright, Trade secrets require no registration to be protectable;
rather, trade secret protection arises automatically provided that the trade
secret owner can establish that the information is not already in the public
and that if it were disclosed to a competitor, could cause real or significant harm
to the owner of the secret. Trade secret protection can theoretically last
forever, as long as secrecy is maintained and the information is not publicly
known.
With the advent of
AI, computers and machines will potentially create millions of original works
which may not be protectable under Intellectual property laws unless amendments
are made. This defeats the purpose of Intellectual property which is to encourage
ingenuity, protect the production of creative minds and attribute honour to
whom honour is due. Hence, the need for Intellectual property law reforms.
Written by:
Adeniran
Oluwabukunmi.
References
1. A Brief History of Robotics: The Origin of The
Fisrt Humanoid Robot. LUCA Robotics.
2.
Stone, Zara. Everything You Need To Know About Sophia, The World’s First
Robot Citizen. 2017.
3.
Artificial Intelligence and Intellectual Property. WIPO.
4.
Oluwanifemi, Kolawole. Nigeria may not be ready to include robotics and
artificial intelligence in its secondary school curriculum. Techpoint.Africa.
February 25, 2020.
5.
Nina, Fitzgerald and Andrew, McClenahan. Introduction to the protection of IP
rights in artificial intelligence. 2019.
6.
Kurzweil, Ray. Intelligent Trademarks. 2008.
7.
John, Porter. US patent office rules that artificial intelligence cannot be a
legal inventor. The Verge. April 29, 2020.
8.
Mayowa, Oluwafunmilayo. Who owns Copyright in an AI Invention? 2019.
9.
Andrea, Jeffries, Emily, Tait and Jason, Garr. Protecting Artificial
Intelligence IP: Patents, Trade Secrets or Copyrights? 2018.
10.
Ijeoma, Olorunfemi and Ikenna, Uwadileke. Artificial Intelligence technology:
Is Nigeria ready? Vanguard. April 22, 2019.
Photo Credit – www.myconstructiontip.com
by Legalnaija | Jun 30, 2020 | Uncategorized
Introduction
“Complaint”
is an expression of dissatisfaction made to an organisation, related to its
product or service. Complaints management is, therefore, the aggregate of ways,
tools and processes an organisation uses to collect, analyse, and act on
customer dissatisfaction. In
practice, customer complaints may take one or more of the following categories:
a.
complaints alleging
financial losses,
b.
complaints alleging failure
of service delivery, and
c.
complaints with potential
legal/regulatory implications.
The complaints may arise from issues such as delay in execution; poor
customer service; failure to carry out lawful instructions; negligence;
mistakes in the computation of charges/fees; and system errors or technological
failures.
It has been noted that complaints are a critical element of consumer
contact management. Customers are rarely as motivated to speak to
organisations as they are when something has gone wrong. While no one likes to
hear what they have done wrong, knowing how to receive, manage and resolve
customer complaints can yield significant insights that can help organisations
meet the current and future needs of their customers.
Beyond making individual
customers happy by addressing their problems, complaints can also be leveraged
upon by an organisation to enhance product development, mitigate risk, and find
opportunities for growth and innovation. Hence, while customer complaints are
often seen as negative events that successful organisations should avoid, forward-looking
organizations see them as vital inputs for enhancing customer satisfaction and
experience.
Complaints Management Framework of the Nigerian
Capital Market
Complaints and associated issues of product and service reliability are
often focused on by regulators because of their potential impact on a market’s
dynamism, fairness, transparency and efficiency. The
Investments and Securities Act (ISA) gives the Securities and Exchange
Commission (SEC) the responsibility to maintain efficient, transparent and
effective capital markets in Nigeria. This includes the responsibility of
ensuring that investments are not violated, misused or mismanaged in any way.
As a result, the SEC has issued Rules relating
to the complaints management framework of the Nigerian Capital Market for all
entities operating in the capital market, including the SEC. This means that
the SEC Complaints Management Framework Rules are applicable to Self-Regulatory
Organisations (SROs), recognized Capital Market trade groups, Capital Market
Operators (CMOs) and listed public companies.
The overreaching aim of the Rules is to implement a framework for
customer (investor) complaint management in the capital market to entertain
complaints arising out of issues that are covered under the following:
a. the Investments and Securities Act, 2007 (ISA),
b. the SEC Rules and Regulations made pursuant to the ISA,
c. the rules and regulations of Securities Exchanges; and
d. the guidelines of recognised trade associations.
Organisations
can only solve the problems they know about, so organisations that don’t
provide opportunities and incentives for customers to provide feedback are
missing a vital component in their quest for constant improvement and enhanced
customer experience. The SEC Rules
therefore require all entities in the Capital Market to establish complaints
management policies that are fair, impartial and objective for the handling of
complaints made in respect of all forms of complaints against operators by
client, between operators, against regulators and SROs, and trade manipulation,
accounting frauds, Ponzi schemes.
Responsibility for implementation and monitoring compliance of such
policy is vested in individual company’s/firm’s senior management. The
‘relevant Competent Authority’ is to ensure that Companies/firms have a
complaints management function which enables complaints to be investigated
fairly and possible conflicts of interest to be identified and mitigated, and
properly documented. The term ‘Competent Authority’ in relation to these rules
means SROs and recognized Capital Market trade associations.
It is pertinent to note that not all complaints are qualifying of
treatment under the Framework. For instance, complaints against unlisted,
delisted, wound up, liquidated or ailing companies fall outside the purview of
this Framework. Also not to be treated under the Framework are complaints that
are sub-judice or under the purview of other regulatory bodies.
It is also pertinent to note that a complaint must qualify as such in
order for it to be entertained. This is important in order to better manage
resources in the complaint management process. Hence, the following ‘complaints’
are not considered as deserving of attention or resolution:
a. Complaints that are incomplete or not specific.
b. Allegations without supporting documents.
c. Offering suggestions or seeking guidance or explanation.
d. Seeking explanation for non-trading of shares or illiquidity of shares.
e. Not satisfied with trading price of the shares of the companies.
f. Non-listing of shares of private offers of securities by private
companies.
g. Disputes arising out of private agreement with companies or
intermediaries.
h. Any other matters as may be determined by the SEC from time to time.
There is, however, no yardstick for determining when a complaint is
frivolous. In the absence of guidance on acceptable forms of a complaint,
companies/firms have discretion on what they consider to be incomplete or frivolous
complaints. There is the possibility that such discretion may be abused in
cases where the affected firm is more concerned with reputational damage
control than customer satisfaction.
The SEC complaint resolution framework is multi-layered, such that
complaints by clients are to be resolved by individual companies/firms within
10 days; complaints between CMOs are to be resolved by the relevant Competent
Authorities within 20 days; while the following complaints are to be referred
to the SEC for further investigation, and ultimately to the Administrative
Proceedings Committee (APC) of the SEC:
a. complaints against Competent Authorities;
b. complaints against operators by SROs/Regulator;
c. Trade manipulation, accounting frauds, Ponzi schemes and such other
complaints as may be determined by the SEC from time to time.
Complainants not satisfied with resolutions /decisions reached by SEC
reserve the right to appeal to the Investments and Securities Tribunal (IST)
provided there is full compliance with the ISA.
Finally, the Rules require every SROs, recognized Trade Associations,
CMO and public company to maintain an electronic Complaints Register, which
shall contain details such as name of the complainant, date and nature of the complaint,
and remarks/comments. The Register is to be updated regularly, and status
reports of the complaints are to be forwarded to the SEC quarterly. The
importance of a Complaints Register lies in the fact that a successful
resolution of complaints is almost as important as ensuring that the reason for
the complaint does not recur. With customers lodging
complaints across a wide variety of communication channels (such as email,
customer response surveys, and social media), many organisations have
difficulty keeping track of all the information. It is not unusual to find
these complaints piling up in the personal email accounts of frontline workers
or customer experience representatives. Without the opportunity to engage in
rigorous analyses of customer complaints, organisations lose the opportunity to
mine the deep insights that complaints can provide about the customer
experience.
Appraisal of the Complaints Management Framework
It appears that the SEC Complaints Management Framework of the Nigerian Capital Market is more
concerned with complaints about breach of a regulatory rule as against
complaints that are on internal policies or practices of individual capital
market operators. But while SEC, the regulator, may be more concerned with the overall
health of the market, individual capital market operators should leverage on
the Framework for customer service performance improvement.
Prior to the Complaints
Management Framework of the Nigerian Capital Market, it was not uncommon for
aggrieved customers/investors to engage law enforcement agencies like the Nigerian
Police or the Economic and Financial Crimes Commission (EFCC) to resolve
disputes with capital market operators, especially where the dispute involved
criminal allegations, such as embezzlement or misappropriation of funds of an
investor. It is to be noted that in involving the Police or EFCC, complainants
are often motivated by the perceived potential for quick results/resolution. The
Complaints Management Framework of the Nigerian Capital Market is intended to
discourage such tendencies, for obvious reasons. The new Framework is therefore
expected to prevent complaints from becoming disputes that might take a long
time to resolve.
It is suggested
that the prevention of complaints from becoming disputes should have formed the
basis of the Capital Market Complaints Management Framework, rather than the
resolution of active disputes in the capital market, which is already well
provided for under extant provisions of the ISA. Otherwise, the Complaints
Management Framework will only add to already existing dispute resolution
channels, such as the SEC Administrative
Proceedings Committee (APC), Investment
and Securities Tribunal (IST) and even the courts. Apart from potential
jurisdictional conflicts, the current system will only prolong the timeframe
for resolving disputes, exhaustively. As a result, the Framework should have been more focused on
complaint management as it relates to internal processes and practices of individual
capital market operators, as opposed to complaints on the laws, rules and
regulations governing the market.
Appreciating the difference
between a ‘complaint’ and a ‘dispute’ is important in delineating appropriate
resolution channels in the capital market. The ISA appreciates this difference,
as it uses ‘complaint’ for matters that are to be referred
to the APC for determination; and ‘dispute’ for matters that the IST is to
handle. Where a party files a
complaint at SEC against an operator for any securities transaction, the
complaint is referred to the Administrative Proceedings Committee for
determination. The decision of the Committee is appealable to the Investment
and Securities Tribunal (IST). The Investment and Securities Act 2007
prescribes that all actions must be concluded within 90 days at the IST. The
decisions of the IST are appealable to the Court of Appeal and subsequently to
the Supreme Court. It is unclear why the Complaints Management Framework is considered by the SEC a necessary
appendage to this statutory dispute resolution framework.
Conclusion
It is suggested that the Complaints
Management Framework should be redesigned to focus more on prevention of complaints from becoming disputes in the capital market.
This means an increased focus on the internal policies of organisations on
complaint management as against regulatory breaches. It is not realistic to expect CMOs to develop and
implement policies on all forms of complaints in the Capital Market. One way to
do this is to be clear on what qualifies as a complaint to be treated at the
individual company’s level and also make clear that the complaint management
policies of companies/firms should be tailored towards addressing complaints
about the individual internal processes of the companies/firms.
There is also the issue of awareness on the existence of the Framework
and of individual companies/firms of the customer complaint policies. The SEC
Rules should contain a provision that mandates companies/firms to notify their
customers and stakeholders of their customer complaint policies.
Michael Dugeri
Commercial Lawyer
Photo 1 Credit – www. dailynigerian.com
by Legalnaija | Jun 26, 2020 | Uncategorized
I joined the Law firm of Dele Adesina & Co (now known as Dele Adesina LP) in February 2006 as the Deputy head of Chambers and rose to become the Head of Chambers. With my 14 years in the Chambers, I can categorically say I know a lot about “The Man Dele Adesina”
Mr. Dele Adesina SAN, is a leader who is always ready and willing to give junior lawyers the opportunity to cut their first tooth and take a bite at the legal practise during and after their service year. He gives the same opportunity to colleagues who join him as Associates.
I can attest to the fact that he is a man with several qualities of a good leader. He is approachable, caring, humble, respectful, focused, a goal getter and an achiever who will never accept that something is impossible. He is a determined and dogged fighter who will do all within his powers to succeed in a course he strongly believes in. He is a detribalised leader who gives opportunities to all colleagues irrespective of their class, tribe, religion and/or pedigree. He has a listening ear and he believes that you can always learn from anyone, be it your juniors, mates or seniors, as no man knows it all. He gives everyone working with him the opportunity to express themselves on issues before taking a final position.
He is a strong believer that there is nobody that cannot be trained as long as they are intelligent and determined. As the head of Chambers, I observed that he does not only give Lawyers in Chambers fish, but also teaches them how to fish, so as to be self-reliant. He encourages associates in his firm to be determined in order to become astute legal practitioners. This is why most lawyers that have passed through him always leave to set up their own Practice rather than join another firm. A lawyer who trained under him must surely learn confidence, diligence, honesty and neatness.
Mr. Dele Adesina SAN is very friendly and a considerate leader. He is an intelligent Lawyer, who does not believe in impossibility. He is a solution provider and a good orator. His professional skills particularly, in the field of advocacy are top notch. He is a team player and his passion and love for the legal profession is something that is very visible and cannot be hidden. I can say with all sense of responsibility that, after the work of God/the church of God, his second passion is his love for the NBA and the Legal Profession. This explains his determination to find a lasting solution to the series of problems steering the NBA and its members in the face for many years now to wit; the erosion of public confidence in the judicial system, the welfare of young lawyers and even senior colleagues as well as the problems facing the Bench amongst others.
Dele Adesina SAN is a man of integrity who exhibits exemplary leadership qualities with honesty as his watch word. He is always willing and ready to give a helping hand to others when and where necessary. He is a gentleman per excellence and very responsible. To cap it all, he is a God fearing person who puts God first in all he does.
To give Dele Adesina SAN (DASAN) an opportunity to serve us as the Leader of the Bar, come July 2020 is to give an opportunity for repositioning both the Bar and the Bench in Nigeria. DASAN shall promote and protect the image and integrity of the Bar and the Bench.
