legal regime for the regulaiton of ict in nigeria

8/7/2019 legal regime for the regulaiton of ICT in NIGERIA

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CHAPTER ONE

1.0 INTRODUCTIONInformation and communication technology in more ways than one reflect the innate

nature of man to satisfy his thirst for comfort. These technologies are basically aimed

at improving on the art of sharing information through very creative ways without the

limitations of geographical boundaries. Indeed, the rapid advancement of technology

propels the social welfare, for better or worse. Information and Communication

Technology (ICT) is increasingly becoming fundamentally critical to the

development of our societies and economies. Access to the internet and telephones is

expanding rapidly knitting together markets, people and communities as it grows,

facilitating the worldwide exchange of knowledge and services.1

In the 1980s, countries began to recognize the increasingly important role of the

Information and Communication Technology sector for economic growth. Such

economic growth was made possible by new inventions in telecommunication, data

and information sharing through the internet, satellite and wireless services especially

in the financial sectors of such countries. The rapid development of information and

communication technology infrastructure paved way for huge government

involvement. As a result, in primarily developed nations, policies evolved to

introduce competition albeit, often limited in scope, in an effort to inject dynamism

1http://www.carapn.net/21445231-information-and-communication-technology-target-2015-backgrounder.pdf

[Accessed April 3 2011]


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into the sector, spur innovation, increase choice, enhance availability, and lower

tariffs.2

With the very fast pace of development of information and communication

infrastructure within many complex societies such as Nigeria came the proliferation

of certain problems often associated with ICT operations. These were issues ranging

from monopoly to invasion of privacy, cyber crimes, consumer exploitation and

unequal access to such technologies. It is undeniably clear that Information and

Communication Technology causes todays many social ills like cyber-bullying and

privacy intrusion.

Law plays a huge role in trying to regulate the operations of these new technologies

within the society in order to curb its excesses. Law, being an instrument of the

society, is principally concerned with the determination and recognition of societal

standards of conduct. Through this, law strives to spell out what conducts are to be

regarded as standard acceptable behaviour and otherwise unacceptable behaviour.

Governments all over the world have recognized the importance of ICT to the

development of their societies. Such governments have also recognized the huge need

to provide some form of regulatory framework to streamline the excesses and flaws

that arise from the ever developing ICT sector.

2http:// rru.worldbank.org/Documents/PublicPolicyJournal/053smith.pdf [Accessed April 3 2011].


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Notwithstanding the highlighted importance of the regulation of Information and

Communication Technology, the development of information and communication

technology regulation in Nigeria has for a long time received very little attention.3

As the contemporary world gradually emerges into a global village, increasingly

networked no longer by asphalt but with the bridges of satellite, wireless links, fibre

optics and the likes with the growing realisation of the socio-economic significance

of ICT as the basic infrastructure, it has become clear that increased attention must be

geared towards developing of a viable ICT industry in Nigeria.4 One very obvious

way to guarantee such growth and development is through the legal and institutional

regulation of the industry.

This project shall therefore principally aim to examine the legal regime for the

regulation of ICT in Nigeria, its successes and challenges. In doing so, it seeks to

exam the meaning of Information and Communication Technology, its evolution and

the evolution of its regulation, its operation especially in Nigeria, the international

legal instruments and the legal and institutional framework put in place in Nigeria.

The work shall point out the inadequacies of the legal and institutional framework, its

successes and challenges.

3

Adewopo, A, The Foundation Of Telecommunication Regulations: The Nigerian Experience (1999) UJLA, Vol. 7,p.117 at 117

4Ibid., p. 118


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1.1 THE MEANING OF TERMS AND RELATED CONCEPTS1.1.1

TECHNOLOGY

Technology is a general term for the processes by which human beings fashion tools

and machines to increase their control and understanding of the material

environment. The term is derived from the Greek words tekhn, which refers to an

art or craft, and logia, meaning an area of study; thus, technology means, literally, the

study, or science of crafting.5

The most general definition of technology is the application of science or knowledge

to commerce and industry. Many fields of science have benefited from technology, as

well as commerce and industry over the many centuries of human history. Perhaps

the earliest known use of technology was in the Stone Age when the first knife or

shovel was made from a piece of stone or obsidian. Technology has obviously come a

long way since then. The development of simple tools from wood or shards of rock

show some of the first applications of knowledge to create technology to solve a

problem. The discovery of fire, which provided a way to cook food and create heat

and light, was also a step along the road of technology. These technological

developments allowed people to accomplish tasks more easily and quickly. As

5Merritt, Raymond H. "Technology," Microsoft Encarta 2009 [DVD], Redmond, WA: Microsoft Corporation, 2008.


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knowledge increased, history entered into the Bronze Age.6

The introduction of the

wheel allowed people greater ability to travel and communicate.

Advances continued just as rapidly into the Iron Age where people developed the

ability to work with harder metals than copper and tin. They developed the art of

smelting iron and removing it from ore found in the earth. The Iron Age allowed for

rapid increases in many branches of technology. Weapons making, development of

tools that benefit civilization and greater ability to perform tasks, such as

manufacturing and transportation, are just a few of the technological developments of

the Iron Age.

While each Age builds on the developments of the previous ones, new knowledge is

obtained along the way. This new set of knowledge and the knowledge base of the

past allow for new applications to the needs of society.7

1.1.2INFORMATIONInformation has been defined

8as

1. Knowledge derived from study, experience, or instruction.2. Knowledge of specific events or situations that has been gathered or

received by communication; intelligence or news

3. A collection of facts or data: statistical information.

6

The Bronze Age shows the evolving ability of man to work with metal and the ability to form stronger tools.7 http://www.yourdictionary.com/library/technology.txt [Accessed April 4 2011].

8Ibid


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4. The act of informing or the condition of being informed; communicationof knowledge: Safety instructions are provided for the information of our

passengers.

5. Computer Science Processed, stored, or transmitted data.6. A numerical measure of the uncertainty of an experimental outcome.

Within the field of information science9, information is defined as the knowledge

contained in the human brain and in all electronic and written records.

1.1.3COMMUNICATIONCommunication is the sharing of ideas and information. While many people think of

communication primarily in oral or written form, communication is much more. A

knowing look or a gentle touch can also communicate a message loud and clear, as

can a hard push or an angry slap. Communication is thus defined as10

:

1. The act of transmitting,2. A giving or exchanging of information, signals, or messages as by talk,

gestures, or writing

3.

The information, signals, or message

4. Close, sympathetic relationship5. A means of communicating; specifically, a system for sending and

receiving messages, as by telephone, telegraph, radio, etc.

9

Information science is the scientific study of information: how it is created, transmitted, encoded, transformed,retrieved, measured, used, and valued.

10http://www.yourdictionary.com/library/information.txt [Accessed April 4 2011].


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6. A system as of routes for moving troops and material7. A passage or way for getting from one place to another8. The art of expressing ideas, esp. in speech and writing9. The science of transmitting information, esp. in symbols

This definition suggests that there can be several different types of communication,

falling into the categories of non-verbal or verbal11

.

NON-VERBAL COMMUNICATION

Non-verbal communication involves exchanging information or transmitting data

without the use of words. There are many examples of non-verbal communication

everywhere in the world.

While you may not stop to think about it, a red light or a stop sign is a clear form of

non-verbal communication. No one is physically telling you to stop, but you see that

symbol or signal and know immediately what is expected of you.

Likewise, body language and facial expressions are also examples of non-verbal

communication. Over the years, numerous research studies have been done to suggest

that babies respond to smiling faces the world over, and that when a person sees

someone else smile, he may become a bit happier as well.

11

Lievrouw, Leah A. "Communication," Microsoft Encarta 2009 [DVD], Redmond, WA: Microsoft Corporation, 2008.


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Thus, while understanding non-verbal communication may require some knowledge

of the cultural and social meanings behind the symbols and signs used, some types of

non-verbal communication are instinctual and no teaching is necessary.

VERBAL COMMUNICATION

The system of verbal communication has become quite complex, with unique

languages each having millions of words.

Unlike non-verbal communication, in order for verbal communication to be

meaningful, there must generally be a readily accepted understanding of the meaning

of a series of sounds. In other words, sounds and words alone aren't sufficient to

communicate: the person transmitting the message and the person receiving the

message generally must have a cultural background or shared knowledge that allows

them to understand what those sounds have come to mean.

However, even some oral or verbal communication can be intuitive. For example,

animals use verbal communication all the time to transmit messages to each other.

Birds sing, some bugs chirp when mating, hounds bark to alert the pack on a hunt,

and even whales sing, although scientists aren't 100 percent certain what those songs

mean.

The fact that language was one of man's earliest developments, and the fact that there

are similarities among languages and that animals also engage in oral

communication, all suggest that although some shared cultural understanding is

necessary, the specific act of verbal communication may be innate.


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MEANS OF COMMUNICATION

Over time, the methods and means used to communicate have expanded greatly. In

early records, hieroglyphics and primitive cave paintings were used to communicate

information and transmit messages. Oral stories and traditions were also passed down

through generations and eventually many of these stories also came to be written

down in some cultures.

The use of carrier pigeons, followed by Morse code and telegraph technology

expanded the reach of communication, making it possible for people to send

messages over longer distances.

Today, communication has expanded and is easier than ever before. Television

allows messages to be communicated quickly and instantly to millions of viewers

worldwide, and viewers can watch events such as political elections unfold in real

time.

Perhaps nothing has changed communication so much as the Internet. While

television and radio provided one-way communication, the Internet allows for the

two-way exchange of information and lets people throughout the world send data

instantly and share ideas immediately. Video chat, instant messages and even voice-

over-IP telephone systems make it possible to connect with and communicate with

more people than ever before.


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1.1.4TELECOMMUNICATIONThe concept means simply means electronic communication. Therefore, it involves

instances where devices and systems are used to transmit electronic or optical

signals across long distances. Telecommunication is therefore the transmission of

information, over significant distances, for the purpose of communication. In earlier

times, telecommunications involved the use of visual signals, such as beacons,

smoke, semaphore telegraphs, signal flags, and optical heliographs, or audio

messages via coded drumbeats, lung-blown horns, or sent by loud whistles, for

example. In the modern age of electricity and electronics, telecommunications now

also includes the use of electrical devices such as telegraphs, telephones, and

teletypes, the use of radio and microwave communications, as well as fibre optics and

their associated electronics, plus the use of the orbiting satellites and the Internet.

Telecommunications enables people around the world to contact one another, to

access information instantly, and to communicate from remote areas. 12

Telecommunications usually involves a sender of information and one or more

recipients linked by a technology, such as a telephone system, that transmits

information from one place to another.

Telecommunications devices convert different forms of information, such as sound

and video, into electronic or optical signals. Electronic signals typically travel along a

medium such as copper wire or are carried over the air as radio waves. Optical

signals typically travel along a medium such as strands of glass fibres. When a signal

12http://www.en.wiki pedia.org/wiki/telecommunications [Accessed April 4 2011].


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reaches its destination, the device on the receiving end converts the signal back into

an understandable message, such as sound over a telephone, moving images on a

television, or words and pictures on a computer screen.13

These telecommunication devices operate on several systems. Theses systems are all

independent of the other but all aim at transmitting data and information across long

distances. These systems include telegraph, telephone, radio, television, global

position and navigation systems (GPRS), personal computers, voice over internet

protocol (IP) etc.

Telecommunications systems deliver messages using a number of different

transmission media, including copper wires, fibre-optic cables, communication

satellites, and microwave radio. Wire-based (or wire line) telecommunications

provide the initial link between most telephones and the telephone network and are a

reliable means for transmitting messages. Telecommunications without wires,

commonly referred to as wireless communications, use technologies such as cordless

telephones, cellular radio telephones, pagers, and satellites. Wireless communications

offer increased mobility and flexibility. In the future some experts believe that

wireless devices will also offer high-speed Internet access.14

13

Frieden, Robert. "Telecommunications," Microsoft Encarta 2009 [DVD], Redmond, WA: Microsoft Corporation,200814

Ibid


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1.1.5INFORMATION AND COMMUNICATIONTECHNOLOGY (ICT)

Information and communications technology or information and communication

technology, usually called ICT, is often used as an extended synonym for information

technology (IT) but is usually a more general term that stresses the role of unified

communications and the integration of telecommunications (telephone lines and

wireless signals), intelligent building management systems and audio-visual systems

in modern information technology. Information and Communications Technology

consists of all technical means used to handle information and aid communication,

including computer and network hardware, communication middleware as well as

necessary software. In other words, ICT consists of IT as well as telephony, broadcast

media, all types of audio and video processing and transmission and network based

control and monitoring functions.15

The expression was first used in 1997 in a report

by Dennis Stevenson to the UK government16

and promoted by the new National

Curriculum documents for the UK in 2000.

The term ICT is now also used to refer to the merging (convergence) of audio-visual

and telephone networks with computer networks through a single cabling or link

system. There are large economic incentives (huge cost savings due to elimination of

the telephone network) to merge the audio-visual, building management and

telephone network with the computer network system using a single unified system

15

http://www.wikipedia.org/wiki/information-and-communication -technologies [Accessed April 4 2011].16http://web.archive.org/web/20070104225121/http://rubble.ultralab.anglia.ac.uk/stevenson/ICT.pdf[Accessed

April 2 2011].


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of cabling, signal distribution and management. This in turn has spurred the growth

of organizations with the term ICT in their names to indicate their specialization in

the process of merging the different network systems.

In this era of global integration, information and communication technology (ICT)

becomes indispensable and embedded in everyday activities. The promises of ICT

seem limitless. It can provide governments, businesses, and citizens with access to

relevant information and allow them to communicate to make informed decisions and

enable more efficient processes and services to address various economic, social,

financial, and educational needs. As a sector, Information and Communication

Technology has contributed to the creation of the most rapidly growing industries,

such as electronics, business process outsourcing, and telecommunication and

internet services. As an infrastructure, ICT is seen as an enabler of economic growth

and competitiveness based on the uptake and utilization of ICT in business and

society.17

1.1.6INTELLECTUAL PROPERTYIntellectual property, very broadly, means the legal rights which result from

intellectual activity in the industrial, scientific, literary and artistic fields.18

These

legal rights are known as intellectual property rights. Intellectual property is a general

17Asian Development Bank, Information and communication technology for development: ADB experiences,Mandaluyong City, Philippines: Asian Development Bank, 2010, pp1

18

Intellectual Property Organization (WIPO), Intellectual Property Handbooks: Policy, Law and Use, (Geneva: Wipo

Publication), 2nd

ed., 1993, p.3


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term that covers all the separate rights like copyright, patent, industrial designs,

trademarks and trade secrets which a holder enjoys as a consequence of the exercise

of his or her human intellect.19

Intellectual property law has as its primary object the protection of a certain class of

property intellectual property. This is suggestive of the fact that there are several

classes of property.

PROPERTY

The concept of property has special importance to the organization of society. In

general, the most important feature of property is that the proprietor or owner may

use his property as he wishes and that nobody else can lawfully use his property

without his authorization.20

The key entitlement one may have in relation to property

is the right to possess it exclusively the corollary of which is the right to exclude

others from accessing it21

. This right of exclusivity is a hallmark of property. Thus,

property has been defined22

as the right to possess, use and enjoy a determinate thing

(either a tract of land or a chattel). Property can be divided into different classes

based on its characteristics. The most important is that of real property and personal

property.23

19Nasir, J.M, Trade Secrets and/or Confidential Information as It Relates To Intellectual Property Law(2003) CJLJ,

Vol. 6 No. 6, p.27 at p.2820

Nasir, J. M, Common Licensing Agreement Terms In Intellectual Property (1999) JPPL, Vol. 3, No. 3, p.139 at

p.14021

Andrew, F. C, Intellectual Property and Intangible Assets: Legal Perspective(2005)IPRIAOP,

No. 1/05, p. 1 at p. 922

Blacks Law Dictionary, (U.S.A. West Publishing Company, 8th

ed. 2004) p. 125223

Barnes, A. J, Laws For Business, (New York: McGraw Hill), 2000, p.567


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Real property, according to English legal tradition, is the land and anything firmly

attached to it, such as buildings and the permanent fixtures of those buildings, and the

minerals beneath the surface of the land.24

On the other hand, Personal property is

anything that can be owned other than real property. Real property can be turned into

personal property if it is detached from the earth. Similarly, personal property can be

attached to the earth and become real property. Perennial vegetation, such as trees,

shrubs and grass, which does not have to be seeded every year, is usually treated as

part of the real property. When trees and shrubs are severed from the land, they

become personal property.25

Personal property is usually classified as either

tangible property or intangible property.

Tangible property, also known as corporeal personal property, is any kind of

property that can be seen, weighed, measured, felt, or touched, or is in any other way

perceptible to the senses, such as furniture, cooking utensils, and books In other

words, property that has physical form and characteristics is referred to as tangible

personal property.

Intangible property is that property that has no physical presence. These intangible

personal properties are usually also known as chose in action. A chose in action is

propriety right in personam. An action is said to be in personam when its object is to

24"Property," Microsoft Encarta 2009 [DVD]. Redmond, WA: Microsoft Corporation, 2008.

25Barnes, A. op cit., p. 568


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determine the rights and interests of the parties themselves in the subject-matter of

the action.26

Despite its growing importance, intellectual property remains a challenging area of

law. This is because, unlike the laws of real property, the laws of intellectual property

create rights between individuals that are vested in abstract objects being objects

that, inherently, are difficult to define.27

Intellectual property rights are usually associated with intangible properties. A

common way of classifying those intangible assets that constitute Intellectual

Property is as all those things which emanate from the exercise of the human brain,

such as ideas, inventions, poems, designs, microcomputers and Mickey Mouse28

.

This classification is consistent with the notion that the subject matters constituting

Intellectual Property are primarily derived from human intellectual activity hence

the word intellectual in the title. The particular human intellectual activities that

commonly result in most Intellectual Property are innovation and creativity.

Recent advances in scientific and technological innovation have rapidly transformed

the world, creating new industries, displacing and altering older ones, and

recalibrating business and commercial activity in many ways. This has led to

investments, developing new technology and advancing other creative activities. The

resulting intellectual capital has become a valuable asset class.

26Blacks Law Dictionary, Op cit., p. 1254

27Andrew, F. C., Op cit., p. 4

28Phillips, J., and Firth, A., Introduction to Intellectual Property Law, (London: Butterworths), 3rd ed, 1995, p.3.


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1.2 HISTORICAL EVOLUTION OF INFORMATION ANDCOMMUNICATION TECHNOLOGY

29

The birth of computers and information technology goes back many centuries. The

development of mathematics led to the development of tools to help in computation.

Blaise Pascal, in 17th century France, was credited with building the first calculating

machine. In the 19th century, the Englishman Charles Babbage, generally

considered the father of computing, designed the first "analytical engine." This

machine had a mechanical computing "mill" and, like the Jacquard loom of the early

19th century, used punch cards to store the numbers and processing requirements.

Ada Lovelace worked on the design with him and developed the idea of a sequence

of instructionsa program. The machine was not complete at Babbage's death in

1871.30

Almost a century later, the ideas re-emerged with the development of electro-

mechanical calculating machines. In 1890, Herman Hollerith used punch cards to

help classify information for the United States Census Bureau. At the same time, the

invention of the telegraph and telephone laid the groundwork for telecommunications

and the development of the vacuum tube. This electronic device could be used to

store information represented as binary patternson or off, one or zero.31

29This would attempt to trace the historical evolution of the systems that enable the communication and

information technologies operate.30http://ccis.athabascau.ca/html/courses/comp210/CourseSample/chap01/section1.htm [Accessed April 10 2011]

31Ibid


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The first electronic digital computer, ENIAC32

(Electronic Numerical Integrator and

Computer), was developed for the U.S. Army and completed in 1946. Von

Neumann, a Princeton mathematics professor, developed the idea further. He added

the idea of a stored computer program. This was a set of instructions stored in the

memory of the computer, which the computer obeyed to complete the programmed

task.

The major activities that expedited the information age can be attributed to the

following:

A.In 1820s Charles Babbage invented the ever first computer calledBabbage machine. It was based on mechanical gears & discs. This was

the first step of human mankind towards computer.

B.From 1890 to 1900, abundant and rapid development of electricity.

In 1928, electron movement thesis came that opened various aspects

towards pristine fields. Invention of electronic equipments fuelled the

revolutionary scenario of IT.

C. In 1943, transistor was developed.D.In 1948, ENIAC, the first computer of modern age was invented by US;

it was based on Vacuum Tubes.

32The ENIAC's design and construction was financed by the United States Army during World War II. The

construction contract was signed on June 5, 1943, and work on the computer began in secret by the University ofPennsylvania's Moore School of Electrical Engineering starting the following month under the code name "Project

PX".


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E. In 1958, transistors were used with the advantage of less powerconsumption and been more accurate. Computers accommodated 100s &

1000s of transistors.

F.Integrated circuits (ICs) replaced transistors. They evolved during last 35years and have now become multi tasking, sophisticated algorithm design

based chips.

During this period of evolution, several technologies were developed. These are Data

Processing & storage by computers, 33Communication technology,34 Memory

technologies (Laser disc & CD-ROM.)

The Main thrust of Communication Technology came from development of computer

technology and defence requirements. The internet was started as small project

(ARPANET) to communicate within the defence requirements in 1970s.

35

Optical fibre technology in communication is used today so that information must not

be lost even to a smaller extent.

Satellite technology & internet use has been wide spread. The evolution of satellite

communication began with the exploration of space and space travels36

. In 500

years, when humankind looks back at the dawn of space travel, Apollo's landing on

the Moon in 1969 may be the only event remembered. As a result, weather

forecasting has undergone a revolution because of the availability of pictures from

33These are in the form of silicon based Integrated circuit technology.

34Communication technology is made possible by Optical fibre communication resulting fibre optic link around the

globe.35http://www.opendb.net/element/19287.php (Accessed April 10 2011)36

http://history.nasa.gov/satcomhistory.html (Accessed April 10 2011)


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geostationary meteorological satellites - pictures we see every day on television.

All of these are important aspects of the space age, but satellite communications

has probably had more effect than any of the rest on the average person. Satellite

communications is also the only truly commercial space technology. The launch of

communication satellites over the past few decades reflects the growth of

communication technology. Such satellites in orbit helped improve the capacities

of television, metrological services, telecommunication and indeed making the

world a global village. The chronology of communication satellite evolution is as

follows;37

1956 First Trans-Atlantic Telephone Cable: TAT-1 1957 Sputnik: Russia launches the first earth satellite. 1960 1st Successful DELTA Launch Vehicle 1961 Formal start of TELSTAR, RELAY, and SYNCOM Programs 1962 TELSTAR and RELAY launched 1962 Communications Satellite Act (U.S.) 1963 SYNCOM launched

1964 INTELSAT formed

1965 COMSAT's EARLY BIRD38 1969 INTELSAT-III series 1972 ANIK: first Domestic Communications Satellite (Canada) 1974 WESTAR: 1st U.S. Domestic Communications Satellite

37Ibid

38first commercial communications satellite


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1975 INTELSAT-IVA: 1st use of dual-polarization 1975 RCA SATCOM: 1st operational body-stabilized comm. satellite 1976 MARISAT: 1st mobile communications satellite 1976 PALAPA: 3rd country (Indonesia) to launch domestic comm. satellite 1979 INMARSAT formed. 1988 TAT-8: 1st Fibre-Optic Trans-Atlantic telephone cable