Executive Summary:

Dissatisfaction has consistently been expressed concerning the lack of effectiveness of the Copyright Laws in Nigeria, particularly evident from the high rate of piracy still present in the country, notwithstanding the presence of these laws.

This paper seeks to examine the Copyright Act Chapter C28 Laws of the Federation of Nigeria 2004 (Copyright Act)  and how well designed it is to serve the need for which it was created; to protect intellectual property.

Ayikpo Timothy
(400Level, University of Ibadan)
Legal Intern
HARLEM SOLICITORS

It is true that we have a Copyright Act in Nigeria. It is also true that its purpose is to protect Intellectual Property rights and prevent Copyright infringement. It is also true, however, that people do not necessarily pay much attention to it. There are a number of factors responsible for this. But supposing all these factors were out of the way, can we confidently say that our Copyright Act is just what we need to prevent Copyright infringement? Or that its provisions are well constructed to adequately cover the Copyright-protection needs of intellectual property owners?

Definition and History

Copyright has been defined by the Black’s Law Dictionary as“the right of literary property as recognized and sanctioned by positive law. A right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.”[1]

Also the 9th Edition of the Black’s Law Dictionary descirbes ‘Copyright’ as ‘a right granted to the author or originator of certain literary or artistic productions, whereby the creator is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the literary or artistic works and publishing or selling them.

Even though the Copyright Act does not define the word “works”. However, Section 1 (1) of the Copyright Act provides that the following shall be eligible for protection:

  1. Literary works
  2. Musical works
  3. Artistic works
  4. Cinematographic films
  5. Sound recordings
  6. broadcasts

An infringement, on the other hand, is simply“a breaking into, a trespass or encroachment upon; a violation of a law, regulation, contract or right. Used especially of invasions of the rights secured by patents, copyrights and trademarks.”[2]

Piracy in the context of Intellectual Property Law is“the unauthorized duplication of any matter protected by intellectual property[3].

And finally, Intellectual Property is “property (such as an idea, invention or process) that derives from the work of the mind or intellect”.[4]

We shall then move to trace, briefly, the history of Copyright in Nigeria, and see how far we have come before now.

The Copyright Act in Nigeria originally has its root from England, as do a number of other laws. Therefore, in order to give its history, we must begin with the English Copyright Law.

The first proper legislation for copyright in England was passed in 1710. It was also called the statute of Anne, and provided for the first time that authors, not publishers, would have exclusive rights to the distribution of their works. This law eventually evolved into the Copyright Act of 1911 which was what was finally introduced into the South-Western part of Nigeria by the colonialists.

However, at the time, Nigeria had very little use for such an act, as entertainment was still highly communally distributed and people did it more for fun than as jobs. But after the civil war, the first indigenous Copyright legislation in Nigeria was drafted and then passed on the 24th of December, 1970 as a decree (Decree No. 61 of 1970) under the General Yakubu Gowon administration. It provided the works that were eligible for Copyright, conferment of Copyright, nature of Copyright in certain works, first ownership, assignment and licensing, infringement and actions for infringement. It was, however, considered to be weak, especially because it did not designate any particular authority to oversee the implementation of the law and as such, the law was largely ineffective. Years later, however, after the civil war, it has been suggested that in an attempt by Nigerians to “cool off” following the negative effects of the war, the entertainment market increasingly became popular.

Another thing to note was the discovery of oil which left many Nigerians with a little extra money to spend on luxuries such as the products of the entertainment industry. The growth and popularity of the said industry thereby led to growing concerns by entertainers regarding the security of their works, and a need arose to revisit the legal framework for Copyright and promulgate one which would actually serve the needs of the people properly.

After series of meetings, another Copyright legislation was passed in 1988 as another decree (Decree No. 47 of 1988). It was further amended twice over the next few years, in 1992 (Decree No. 98) and 1999 (Decree No. 42). Finally, in 2004, it was codified into the Laws of the Federation of Nigeria (LFN 2004) as Cap C28.[5]

Structure

The Copyright Act[6] is divided into four parts and five schedules.

The first part contains sections 1-25 and is simply titled “Copyright”. It gives the basis for the effect of the Copyright law such as what works would eligible for Copyright, which particular people in relation to these works can make a claim as regards Copyright, what the rights even look like (the nature of Copyright), what happens to those who violate this Copyright (criminal and civil liability) among others.

The second part (sections 26-33) is titled “Neighbouring Rights”, and deals with the rights of a performer of an already recorded works, as well as rights in relation to infringement of folklore (older works that stem from tradition and culture).

Part Three (Sections 34-40) deals with the administration of these laws, that is, who is responsible for making sure they are implemented, and Part Four (Sections 41-53) deals with miscellaneous provisions such as interpretation of certain provisions, jurisdiction and extension of protection.

The five Schedules provide for regulations that give a little more definition to the laws in parts One to Four. The First Schedule for instance gives the number of years Copyright is expected to last for after the death of the owner. The Second and Third Schedules give certain exceptions to the laws protecting Copyright, the Fourth Schedules provides requirements for certain licenses to be obtained before some works can be reproduced or translated and the Fifth Schedule provides for transitional and saving provisions. These Schedules provide directives guiding the modes in which the provisions in Parts One to Four are to be implemented.

We shall then proceed to examine each of the portions of the Act, first by parts, and then by Schedules.

PART ONE

Spanning from sections one through to twenty-five, this part spells out the essentials of the law regulating Copyright. First off, what does it protect exactly? According to this Act, it protects literary works, musical works, artistic works, cinematographic films, broadcasts and sound recordings, as earlier stated above.

That sounds very all-encompassing at first glance. It further goes on to provide that a work must have a truly original character to be protected by Copyright. That makes sense; Copyright seeks to protect individualistic rights, and those can only be determined from distinction and originality. It provides that this law will protect works by citizens of Nigeria, residents of Nigeria, or works that were first published in Nigeria (except broadcasts). It even extends a hand to protect works that are published in countries with whom Nigeria is in agreement (for example, countries belonging to organisations like the United Nations, Organisation of African Unity etc.), and works made by or under the direction of the government.

However, section 1(4) gives a very interesting provision; a work cannot be disqualified from being copyrighted simply because another work’s copyright has been infringed in the process of making it. And that sounds prima facie questionable: doesn’t that defeat the very aim of the law? If one has already infringed Copyright, shouldn’t there be some sort of penalty, especially when he or she will do it in the process of making something that they will eventually call their own and distribute, too? And that brings us to the most important question: What liability do people who violate Copyright have? For the most part, according to section 20, people who violate Copyright would be liable to a fine and/or a prison sentence. The fine could be not more than N1,000 where the person is engaged in reproduction for the purpose of distribution of those works, or a N100 fine for a person who is actually engaged in the selling or distribution (the fine is charged per copy of the work found with the violator). That, to me, is adequate punishment. A person who engages in mass distribution of pirated works for instance, may end up being fined in thousands of Naira depending on how many copies he is found to have dealt with (which will probably be a lot since these people acquire a large number of copies in order to sell).

Furthermore, the possibility of imprisonment also expresses the seriousness of the offence, as the Act ought to do. Section 20(4) even goes further to give rights to the court to destroy any such copies of the work found in the possession of the violator, or hand them over to the owner even before the suspected violator is convicted. In fact, section 21 further gives the Nigerian Copyright Commission (“the Commission) in charge of Copyright protection  the power to confer upon an author or other owner the right to make an anti-piracy distinctive symbol on his work and subjects anyone who duplicates this symbol illegally to a N50,000 fine. It also allows, in section 24, for both criminal and civil liability under the same offence of copyright infringement. This shows that the Act really does treat with seriousness the gravity of the offence.

But the question that runs contagiously through the minds is: can a person ‘get away’ with infringing Copyright in the production of his own work? I would say that the rationale behind this law is to protect a person’s IP for ‘future purposes’. This is because, if we are to consider this carefully, according to the just considered section 20, a person who infringes Copyright could be subject to a fine and his business even brought to an end since copies of the works can be confiscated and even destroyed. Therefore, if a person infringes Copyright in the first place, he is liable for the offence of piracy, separate IP owner or not. So his work is already considered illegal, and can be filed against. Now in the event that the original  owner whose Copyright this person has infringed files a suit against him, and wins, and he pays the fine, or goes to prison, there is the likelihood that this ‘Copyright violator’ will either give up on his work, or actually take proper permission in producing it all over again, still incorporating the first work but this time, legally. Where he then takes permission, based on this subsection, he should not be denied Copyright on his own new work even though it is an offshoot of another, on the basis that it once infringed Copyright. That seems to me to be the most probable explanation, and outside of this explanation, it would almost seem that the said provision would not have much use.

And finally, what are these rights like? What kind of power does the Act give owners of “Copyright”? Reading through sections 6 through to 8, the rights given to a Copyright owner are majorly exclusivity in reproducing and commercially distributing their work, so that no one can make money off of a product that they own, essentially. One would want to ask there seems to me to be permission to people who are not distributing but simply enjoying domestic use, since it is almost like saying that if a store owner has goods, and a person steals those goods, but does not intend to sell them but only use them domestically, then he can get away with it. The fact is, a deprivation of the owner’s property in the product has still occurred. However, as the law  generally ought to be rational and not impose unreasonable regulations on people, I would say that it is fair that this rule is not as rigid as possible, especially because of the nature of products of the entertainment industry and how easily they can be passed across. Particularly with the existence of technology, movies, songs and broadcasts can be gotten via different devices, and it would be unreasonable to say that maybe even transfer of files via App sharing files such as Xender would constitute piracy. So, to some extent, it would not be unfair to allow fair use of works and materials for simple domestic purposes, as opposed to the intentional reproduction without license for the purpose of distributing and making financial gain, which is simply stealing.

It is also important to note that generally, Copyright automatically subsists in the author of a work from the moment of creation of the work and does not necessarily have to be registered. However, the Commission has established a voluntary copyright registration scheme designed to enable authors and right owners notify the Commission of the creation and existence of a work, so as to make it easier to prove copyright where conflict arises.[7]

PART TWO

Part Two deals with performer’s rights (sections 26-33). A person who performs a work of art live has the exclusive right to distribute it. This explains a bit of YouTube’s famous practice of bringing down a number of videos on the basis of “copyright infringement”. This seems like a very understandable and necessary regulation. It is also very important that section 28 spells out the incidents that amount to infringement of a performer’s right, and takes care to clearly make the distinction between people who record a live performance for domestic use and people who do such recordings for commercial purposes. Only the commercially inclined will be liable for an infringement. This is because it is totally reasonable that fans who go to watch their favourite artistes perform live would want to have a recording of it for the sake of making memories. It is only when a person records any such performance with the purpose of distributing it to make money off of it that it becomes an offence. The Act is also reasonable enough to give a provision for permission granting; a person who originally owns a live recording of a performance can grant another the permission to reproduce and distribute it. However, this permission must be granted in writing, according to section 28, which provides that:

A performer’s right is infringed by a person who, without the performer’s consent or authorization in writing, does any of the following…”

Looking at this, I would say that the law provides a well-structured protection for a performer’s IP, while still giving non-IP owners the opportunity to enjoy performances to an extent within legal restrictions and without depriving anyone of their rights.

The immediate succeeding set of sections then provide for the protection of folklore. Folklore is defined as “traditional customs, tales, sayings, dances, or art forms preserved among a people.”[8] Ordinarily, folklore would be considered a traditional product that can be enjoyed communally. But where a person intends to reproduce it with the aim of making money off its distribution, it becomes a different matter all together. Therefore, section 31(1) provides for prohibitions to the distribution of folklore for money making purposes and outside their original traditional contexts (as is particularly stated in section 31(1)(c)). The law does not fail to apply reason here once more, as s. 31(2) is magnanimous enough to allow a person borrow ideas from folklore for the production of his own original work. It allows persons to use folklore for educational purposes and also, for private and domestic enjoyment. This is very reasonable as going down the trail of history, that is exactly what folklore was created for. Asides these, any mass distribution would have to be authorised by the Commission.

PART THREE

This part governs administration (sections 34-40). Now, in our brief history review, it was highlighted that one of the major shortfalls of the first Copyright Legislation was that it had no body or authority responsible for bringing into effect the laws it provided. The present Copyright Act, however, provides for the institution of the Nigerian Copyright Commission, and vests in them the power to regulate Copyright in the country and in accordance with the Act. They have the power to appoint Copyright inspectors, who have the power to enter into any building which they reasonably believe is being used in the production of Copyright infringing materials, and inspect it (Section 38(1) and (2)(a), and also to arrest any person who they reasonably believe to be an offender under the provisions of the Act (s. 38(1)(b)).

The establishment of this Commission is done with the purpose of ensuring that the laws are not just present in theory, but in action too, and if the Commission operates effectively within its powers, it will be able to actively tackle the issue of Copyright infringement. This part of the Act also assigns the Commission the duty to create awareness as regards Copyright (s. 34(1)(d)), which is one of the important things that would help in ensuring that the laws do not just exist, but people actually know about them.

PART FOUR

These are miscellaneous provisions (sections 41-53). The first one we are met with is the “extension” provision. Here, in s. 41, the Act grants Copyright by extension to works in other countries that are in treaty with Nigeria (such as other member states of the United Nations, Economic Community Of West African States etc.). A person who is in another of such countries that makes works that fall under the category given in s. 1(1) can still be answerable to the law under this Act. This may seem a bit similar to the provision in s. 5 since they both refer to works in other countries.

However, while s.5’s provisions grant Copyright to works themselves (made in other countries or by authors from those countries), s. 41 here provides that the provisions of the Copyright Act extends to individuals who are from any such countries or are domiciled there, so that anyone found guilty of any offences prescribed by the Act will be subject to the necessary punishments also prescribed.

Section 42 provides that an affidavit can be sworn according to due process of law to prove adequate Copyright in a work. A Copyright owner can also, according to s. 44, give notice in writing to the Department of Customs and Excise, prohibiting the importation of copies of his work. This provision further shows how much power is vested in the author of a work, and how seriously this Act has been constructed to protect Copyright.

The High Court is granted exclusive jurisdiction to hear cases involving the provisions of the Act, as provided by s. 46. Now even though s. 46 provides that the Commission can sued and be sued, s. 47 provides limitations to these suits and as can be seen from the provisions of ss. 1 of this section This is to ensure that the Commission is able to carry out its duties in the protection of Copyright and not be tied down by frivolous lawsuits which will distract it from the work it ought to do.

SCHEDULES

The Schedules provide directives as to how the provisions in Parts One to Four are to be followed. The First Schedule gives the number of years for which Copyright lasts: seventy years for literary and musical works and fifty years for all other works granted with Copyright under the Act. And this is a very reasonable and important provision. Copyright cannot be expected to last forever. This is because after seventy years, it could be presumed that the person would have made substantial financial gains from his works, and would probably not even be in the active business of reproducing his work anymore. So, a lot of people may want to make copies of old works because they can obviously not find it else where

Schedules Two and Three go ahead to provide exceptions; another reasonable provision. As much as Copyright really needs to be protected, there are some situations where an “unlicensed” reproduction can be used. The exceptions speak to instances where works are used for educational purposes, that is, portions of works can be used, especially as long as they are properly referenced.

Reproductions of whole works can also be made to be used in educational institutions so long as any such copies are destroyed promptly upon expiration of a prescribed period (the period during which the material is needed). However, this particular exception casts a shadow of doubt, as the purpose of granting Copyright is to give the owner exclusive right to distribute his work and make money off of it. So, even if the works are distributed and then destroyed after use, they have still been used anyway, and distributed in a manner that should have benefited the owner financially but have failed to do so, and without legal consequences as a result of this provision. Therefore, although some of the exceptions seem reasonable, some still seem a bit questionable.

However, these provisions for exceptions recognise the power to transfer Copyright via issuance of a license, which is originally treated in s. 11. S. 11 gives the owner of copyright a right to transfer it to someone else or give permission or grant license to another other than him for distribution. This provision of this Schedule gives the exception that where any such permission is granted, distribution of copies of the work in question will not be regarded as an infringement on Copyright.

In Schedule Four, it is established that anyone who would like to do a translation of an already existing work would have to obtain a license from the Commission. Also, anyone who would like to reproduce a work whose copies are no longer in circulation and in which the Copyright term (of fifty or seventy years) has expired, would also need to obtain a license. These people must, however, pay some form of royalties to the original owners of the Copyright (s. 2(4)(a) and s. 3(4)(a) of the Fourth Schedule).

Schedule Five simply establishes the time when the Act begins to take effect with respect to works that were made before or after its being passed.

Conclusion

An overview of this Act presents it as an all-encompassing and fairly reasonable regulation for the protection of Copyright in Nigeria. It is then left to the people to see to it that the law is followed as it should be.

FOOTNOTES:

[1]  The Law Dictionary, featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed. (http://thelawdictionary.org)

[2]  The Law Dictionary, featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed. (http://thelawdictionary.org)

[3] Duhaime’s law dictionary (www.duhaime.org)

[4] Merriam Webster’s Learners Dictionary (www.learnersdictionary.com)

[5] Evolution and future trends of Copyright in Nigeria by Kunle Ola, Journal of Open Access to Law, Vol 2, No.1 (2014) at pp 6-8

[6] Chapter C28, Laws of the Federation of Nigeria 2004

[7] How to register a Copyright in Nigeria (http://www.lawpadi.com)

[8] Merriam Webster Dictionary (http://www.merriamwebsterdictionary.com)

 

Categories: OUR TABLOIDS

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!