Abstract

The Nigerian Copyright law is one that is more evident on paper than in action. The rising trend of piracy, which assumes new forms every day, has definitely become an unwelcome threat to the success of a number of industries, particularly the entertainment market in Nigeria. This paper seeks to consider the reasons behind the piracy trend, and how possible it would be to finally bring this source of nuisance to creatives everywhere, to an end.

Introduction

Ordinarily, not many people look forward to being called thieves. Many see stealing as an unfair and terrible act, and rightly so. That is, until we have to talk about piracy and copyright infringement. Then most people want to hide under the cover of being “laymen” and refer to it as “lawyers’ talk”. But ignorance of the law does not excuse, and this sort of attitude is in itself a self-evident reason why piracy is a big issue; most people have not fully appreciated the extent of its illegality. But if taking what belongs to another without their consent, intending to deny the owner of his property in it, is considered a terrible act and a crime, then taking what someone has originally created and distributing it to others without their permission, which is capable of resulting in a loss on the part of the owner, is just as bad, especially since whatever is gained from such distribution, particularly financial gain, will not be received by the owner.

And this view has been recognized by law, even Nigerian law, at least theoretically. And it has been represented in legal language as “Copyright Law”. It is a set of very organized and somewhat impressive guidelines surrounding the distribution of a person’s original work. However, piracy has still planted its feet deep in the soil of many Nigerian markets, particularly the Nigerian entertainment industry. A relevant question will arise thus; how practicable is the intent behind copyright law, to protect the rights of creatives as regards their property in their original work? Is it actually possible to end or at least reduce copyright infringement to the barest minimum?

Ayikpo Timothy
Legal Intern
HARLEM SOLICITORS

Definition and History

At this point it is important to define the keywords “copyright”, “piracy” and “infringement”, and give a brief history of Copyright law. 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]

Piracy occurs in different contexts but finds expression in Intellectual Property law as “the unauthorized duplication of any matter protected by intellectual property.”[2]. Intellectual Property is defined as “property (such as an idea, invention or process) that derives from the work of the mind or intellect”.[3] This simply refers to the products that result from an idea a person has originally come up with, which he can now claim to be his own. And finally, an infringement has been defined as “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.”[4]

In 1710, the British parliament passed the first proper act regulating Copyright, and it was called the Copyright Act of 1710, also known as the Statute of Anne (since it was passed during the reign of Queen Anne). It vested in authors the exclusive right to distribute their works, and also for the first time gave this right to authors instead of publishers. Over the years, copyright law evolved, and by the time the British thought to introduce it to Nigeria, the Statute of Anne had already been replaced by a new Copyright Act of 1911, and that was what was introduced into the South-Western part of Nigeria at first. It continued to serve as the only legal framework for copyright in Nigeria until the first indigenous copyright legislation was introduced in 1970 as a decree under General Yakubu Gowon’s administration. However, it has been indicated that as entertainment demands increased, especially after the discovery of oil and subsequent discovery of wealth in Nigeria (which meant availability of excess funds to spend), the need for copyright law became ever so pressing and therefore the 1970 decree was modified to a more satisfactory one in 1988. This decree was amended twice, in 1992 and 1999, and was finally codified under the Laws of the Federation of Nigeria as an Act in 2004.[5] The Act provides the rules guiding what works are considered eligible for copyright, how the law is to be administered, who can make a claim under copyright law and the criminal liability of violators, among others.[6]

Why Do It?

At this point, it would appear that Nigerian creatives are well protected from any infringement on their copyright, at least by the law. What then could be the reason why Nigeria is still considered a country with a high rate of piracy? An International IP Index ranking done in 2017 by U.S Chambers of Commerce Global and Intellectual Property Centre placed Nigeria at no. 35 out of 45 countries with regard to their strength of copyright protection.[7] What has made Nigerians so prone to copyright infringement, notwithstanding the fact that there are laws in place which prohibit these acts?

One of the first points most people would want to raise is poverty. Africa is usually described as having some of the world’s poorest people. Nigeria has in fact just recently gotten the title of “the poverty capital of the world”. Now the products and services offered by the entertainment industry would naturally not be considered as primary needs, so it only makes sense that a lot of people in this society would be a little reluctant to spend too much on them, hence the need to satisfy their relaxation and entertainment needs with cheaper alternatives, even if it means alternative duplicates of originals which they could ordinarily not afford. This has been argued by some to be the reason why piracy is so prevalent in this part of the world. In fact, Cory Doctorow in an article titled “Why Poor Countries Lead the World in Piracy”, started by saying that“Beating Copyright infringement in the third world could be as simple as making products affordable.[8]

His article makes reference to a report titled on media piracy by Joe Karaganis[9], who believes that piracy is caused by the greed of international companies who are not willing to sell their products internationally at specific market friendly prices for each of the countries but instead, expect their international customers to pay on the same scale as their own locals, as well as sometimes even the additional costs of imports and special taxes. So, since these people cannot afford those pricey items, they make their own. To both of them (the writer of the article, Doctorow, and Karaganis, the compiler of the report) if goods were simply made cheaper, people would not duplicate goods without permission and the problem of piracy would be solved. And it seems like a very sensible argument, that is, if poverty is the only reason behind piracy. There is however something that is a little unconvincing about this argument. In his report, Karaganis says that these international companies could actually sell their goods at normal prices in the third world countries, and still make good profit. But they seem to be scared that if their goods are cheaper elsewhere, Americans would leave their country, go and buy products at cheaper rates in poorer countries and then come back to the U.S. And I find this a bit of a stretch. It is important to consider how much flights cost from country to country. And the question that comes to mind at this point is, how many people, especially Americans, would actually leave their country, go to a third world country to buy, say, a Nike shoe because it is cheaper there? And speaking of the entertainment industry, most of their products are sold online. If a market distinction of this sort was to be made, it would probably be done via the consideration of location, where the computer reads your location to tell you what you can and cannot purchase. So, one would be inclined to wonder if people would actually travel all the way so that their location can read “Nigeria”, so that they would be able to purchase songs and movies at cheaper prices? I really doubt it. A contrary argument I would give on the reason why these products are expensive would be that there are several extra costs incurred when importing goods, so it is only normal that things coming from foreign countries would be a little more expensive that local goods, more so because of the issue of exchange rates.

Furthermore, it is not even in all cases that the great disparity between foreign and local products exist. (Let us also take a moment to observe that in these “poor” third world countries who appear not to be able to afford international goods, even their local and internally produced products still suffer from piracy and copyright infringement a lot of times.) It can also be observed that in fact in some cases, even the foreign products are not more expensive than local ones. For example, with the advent and popularity of the cinema, tickets for most movies cost the same regardless of whether they are Nigerian or foreign, and the only disparity in prices would exist in cases of blockbusters which would attract a greater percentage of customer interest. I have personally experienced where a foreign movie was actually cheaper than a Nigerian one as a result of the greater popularity of the latter. But these same movies are still pirated and distributed days after their release in cinemas.

So, can expensive prices and people being unable to afford them truly be said to be the reason behind the high rate of piracy in this part of the world? To answer this question, I would like to examine the value system of the Nigerian society, and what kinds of qualities are most exhibited and held in high esteem by people.

Nigeria’s being described as one of the most corrupt countries in the world is almost becoming a cliché and an easy explanation for almost everything that goes wrong, and ordinarily, one would want to try to think differently this time and give Nigerians a benefit of the doubt. But in the light of the ongoing social media argument on the issue of internet fraud and the exposure of the opinions of a great section of the population on their perception of dishonesty, it has become a little difficult to believe that piracy is only a product of poverty. A popular singer, Simi, put up a video on her Instagram condemning the activities of internet fraudsters, popularly known as “yahoo boys”, and the responses from a large section of the Nigerian society have been very interesting. A particular comment on a blog post concerning the issue reads:

“This babe will live to regret that nonsense she said. I love the way Nigerians are attacking her everywhere…We won’t stop attacking her until she comes outside to apologize publicly.”[10]

Many hit her with the “nobody is perfect” club. Could the same people who were very willing to tear down anyone who dared condemn a crime as grievous as internet fraud really be said to have any aversion toward the dishonesty in piracy? This incident, among a number of others, is a clear indication of how people view dishonest schemes of any sort in Nigeria, or rather, how they trivialize and try to make excuses for acts that would, in a different society, be frowned upon and considered as crimes.

It is also important to consider the view that people have in this part of the world on how important a person’s intellectual property is, especially an entertainer. Many Nigerians find it hard to believe that an artiste or movie maker has a legitimate job that should earn him a considerable amount of money and accord him certain “rights”. It is one of the reasons why there is the usual argument every now and then on whether or not the aforementioned people deserve the amount of money they make or should be accorded any respect for doing their “job”. It stems right from the belief that things like music and movies are just one of those things that people do for fun and to some people, these people should even be doing what they do for free. After all, all they do is jump around and make a lot of noise. Therefore, it becomes difficult for a person with this view to see any much reason why anyone should lay claim on a “song’ or a “film” and demand to have exclusive rights to its distribution. “It’s just play, let us all share it and be happy”, would probably be the response of an average Nigerian to any talk on intellectual property and copyright infringement. Especially the uneducated or not-so-educated.

And that leads us to another issue; illiteracy. And no, this is not just referring to those who have never been within the four walls of a school building, but also and especially to everyone who does not read anything much outside of their own personal field. And that seems to define a lot of people in this part of the world. A lot of people have no idea some laws exist, copyright law inclusive. Some people have a vague idea but no in-depth information. And although ignorance of the law does not excuse, a largescale unfamiliarity with a law could lead to a largescale breach of said law and when the virus has spread to a certain extent, curbing such an offence becomes very difficult.

Another thing to note is that there is definitely a way our value system is structured that raises a few brows. Well, at least mine. We have a very “wonderful” communal system. And it could be beautiful, in some areas of culture, to watch people come together and collectively own what they believe belongs to everyone. But it is also one of the things that introduces the grey area for the concept of stealing, and ultimately, extends to the issue of piracy. Many Nigerians are still finding it a little difficult to actually fully differentiate between what belongs to one person alone and what belongs to everyone. So the concept of piracy is to some extent still being considered skeptically by some people not just because of the issue of dishonesty alone, but also because it is hard for them to see why “we cannot all just share these things, entertain ourselves and be happy”. This is particularly since our history traces back to a time when a bulk of the entertainment was mainly for leisurely purposes and enjoyed by the whole village collectively and not recorded and distributed via a market.

In the light of all these, it is therefore difficult to believe that the ineffectiveness of many laws in Nigeria, which would normally have been the first thought that would come to mind where the issue of copyright law is concerned, is the actual reason why the law has not really been well effected in the Nigerian market. No, it is deeper than that. But yes, this is actually still a very important reason. If many Nigerian laws were to be truly more than just words on paper, then maybe the situation would be a little different. But even with that, if those responsible for implementing these laws were to make a commitment to bring these laws to life and see them well effected, I honestly would say that they really would have their work cut out for them.

Finally, there is also the advent of the internet, our wonderful friend who has turned the world into a “global village”, a village where we can all share and make merry with even what is not ours without any sort of compensation for the owner. With the internet has come “free” download sites of all sorts, making money off of the property of entertainers without even batting an eyelash. And who are the customers? As regards music I would say probably everyone who does not own an iPhone. As long as a person cannot buy music on iTunes, there’s really only so many other places one can actually purchase music legally. Spotify for example, is a site that only allows a person to stream music online and not buy to store permanently. And the world is going at a pace where most people do not even make physical CD’s anymore. This could therefore constitute a reason behind the high rate of lack of adequate concern that people have toward copyright infringement. Looking at this, we have still found our way back to our original and most popular defense; poverty. Of course, not everyone can afford iPhones in our world.

Consequently, I would like to say that yes, poverty may be a contributory factor, but it is not the sole reason. And in the eyes of the law and justice, it is not valid reason enough. Of course, a person cannot be accused of the crime of stealing and raise the defense of “poverty”. The same applies to the issue of piracy.

Perhaps, A Remedy?

In trying to achieve justice however, it is also good to strive to reach the needs of everyone. After all, that was one of the main reasons why the concept of equity was introduced. So, it would not be a bad idea to try to come up with possible and practicable solutions to piracy that would both protect creatives and be reasonably favourable for consumers.

One suggestion I would like to give is the creation of legal and very accessible online stores where creatives can have a proper deal with the owners of such stores to distribute their material at reasonable prices, so that the consumers can afford, and the creatives can also maintain exclusive ownership in their works and sell them in a way that would profit them (accessible here being a very important thing to consider because sometimes people shy away from most of the paid download sites not just because of the money but also the level of formalities required to register for these sites). When the certainty of the accessibility of these stores to the average internet user has been established, then strict measures can now be taken to secure the works of these creatives to make unpaid access quite difficult and discourage piracy and copyright infringement. This means that these stores are available to everyone, and not just users of particular devices.

However, there will still ultimately be a charge on the people to consciously do away with certain not-so-healthy opinions and mindsets that trivialize the gravity of the offence of copyright infringement. People need to be taught to start seeing it in the same light as things like stealing and other similar crimes in order to understand how bad it is, and why it ought to be avoided. It is important for them to realize why what belongs to another, regardless of how insignificant it may seem to them, still belongs to the other person and no one has the right to take a person’s property from him without his consent, regardless of the nature of the property.

The importance of the education of people on copyright laws should also not be left out. The topic can be subtly introduced into school curriculums, and awareness can be created even through online platforms, but asides that, people should also take it upon themselves to learn what they do not know but should. The law is every man’s business, especially where your ignorance will have a negative effect on not just you but the people around you.

When these measures have been taken, creatives can now confidently hire lawyers to draft up very sound contracts that will protect their intellectual property and give them the boldness to charge to court violators of their copyright, because at this point, such people will only be those who are unwilling to change.

Conclusion

Although it is true that everyone deserves to live a decent life to a certain extent, and a little entertainment and relaxation every now and then would not hurt, it is also true that no one deserves to work without pay or have his property unfairly taken away from him. For in the words of John F. Kennedy,

 “The rights of every man are diminished when the rights of one man are threatened”[11].

 If creatives have put in the work, then they ought to be paid in full. An injustice to one is an injustice to all. And yes, it is possible to implement the laws that protect these rights. But first, we as a people must be willing to abide by them.

“…those who cannot change their minds cannot change anything.

-George Bernard Shaw[12].

Ayikpo Timothy is a 400Level student of University of Ibadan.

FOOTNOTES:

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

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

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

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

[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] Copyright Act, Chapter C28, Laws of the Federation of Nigeria 2004

[7] 2017 International IP Index – NIgeria ranked 35 out of 45 Countries by Ufuoma Akpotaire, NIgerian Law Intellectual Property Watch (http://nlipw.com)

[8] Why Poor Countries Lead the World in Piracy by Cory Doctorow, The Guardian, p. 1 at line 1 (http://www.theguardian.com)

[9] Media Piracy in Emerging Economies, Joe Karaganis, published by Social Science Research Council, 2011.

[10] Simi v. Yahoo Boys – Do You Think it was Wise of Her to Have Dropped Her Album at This Time? By Jelili Adekunle (www.naijaloaded.com.ng)

[11] Radio and Television report to the American People on civil rights (11th June, 1963). John F Kennedy was an American politician and journalist who served as the 35th President of America from 1961 to 1963 when he was assassinated.

[12] Everybody’s Political What’s What? (1944), Chapter XXXVII: Creed and Conduct, p. 330

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