Introduction
Copyright is an intellectual property right given to the owner or an author of an intellectual property. In simple parlance, copyright is the right to copy. Copyrighted work has the effect to exclude anyone from copying except the owner or author or any other person(s) who have been authorized to duplicate, reproduce, or deal with that work for monetary gain or profit.
Copyright is one of the several intellectual property rights that accrue to authors of literary and creative works at the point of creation. The legislation that governs the administration of copyright practices in Nigeria is the Copyright Act, 2022[1]. For a work to be eligible for copyright, it must have been fixed in either of the recognised form of intellectual work under the Act, which are literary works; musical works; artistic works; audiovisual works; sound recordings; or broadcasts[2].
The primary purpose of copyright is to induce and reward authors, through the provision of property rights, to create new works and to make those works available to the public to enjoy.[3]
Paul Fasoyin
Associate, HARLEM
It has been described as a property in which an action to restrain the infringement of a right of property lie even if no damage can be shown, it is a specie of intellectual property, with its own unique character; a property right that at the same time exhibits features of a personal right[4].
Copyright has an abstract nature and cannot be taken into physical possession, this is because it falls in the class of properties more appropriately classified as choses in action,[5] rather than the proprietary right being exercised through physical possession. In other words, the copyright in a work remains a chose in action which the copyright owner may still control after parting with the title to the physical object[6].
Copyright in Nigeria and the 21st century.
The 21st century, also known as information or digital age, is known for rapid technological advancement and globalization. This age is characterized by an increase in the use of the internet and social media, people across the world are more connected than ever before. Information can be accessed easily and can be shared instantaneously, leading to great opportunities for communication and collaboration.
With the growth and expansion of this age, and its many impacts (positive and negative) on many facet of life, issues in copyright have taken a pivotal place of discussion among academic and legal scholars. The landscape of copyright has undergone transformation due to the rapid technological advancement and the widespread availability of information globally. This has resulted in complex inquiries about how to effectively enforce existing laws and provide protection.
Of significant note is the Copyright Act 2022, which is the recent and current principal legislation governing copyright practice in Nigeria. The Act was signed into law by Former President Muhammadu Buhari on March 17, 2023. This Act is applauded as it provides a much-needed regulatory framework to meet the demands of the current digital age that the extant Copyright Act of 1988 did not meet[7].
The new Act introduced new provisions and changed extant provisions with a goal to adequately legislate and cater for the prevalent technology advancements which the repealed Copyright Act has fallen short of.
Amongst many other things, the Act makes adequate provisions for the protection of content for people with disabilities[8], take down of infringing content[9], expansion of performers and right owners’ rights[10], etc.
The Act also introduces a robust framework for the regulation on online content. The objectives of the Act are to: protect the rights of authors to ensure they are rewarded and recognized for their intellectual efforts; provide appropriate limitations and exceptions to guarantee access to creative works; facilitate Nigeria’s compliance with International Copyright treaties obligation; and enhance the capacity of the Nigerian Copyright Commission for effective regulate the Copyright space and enforce the provisions of the Act.
Impacts of Digitalization on Copyright in Nigeria.
- Digital Piracy:
Digital piracy refers to illegal copying, downloading, or sharing digital products, such as music, software, computer games, movies, electronic books, and other copyrighted material[11]. With the proliferation of online platforms and file-sharing technologies, copyrighted content, such as movies, music, and books, can be easily distributed and accessed without proper authorization or payment, leading to significant financial losses for creators and content owners.
The consequences of digital piracy can be high.[12] Imagine, for a moment, you are an aspiring songwriter and musician. You invest an entire year writing your first album. Your new album is finally produced and hits the market. You begin making a modest amount of money. However, you discover that your album has been copied and distributed for free over the internet. Now you begin losing money. You cannot afford to write a second album, due to this financial loss. Additionally, you discover someone selling your album for a reduced price. As a result, not only are you losing money, but someone else is profiting from your work. Without copyright laws, you would have no legal recourse.
Thus, the need for vibrant copyright laws and as well as being proactive on the part of creators whose copyrighted work(s) has been infringed.
- Globalization:
Copyright laws and intellectual property laws generally operate territorially. What this means is that the intellectual property rights granted in a country operate within the territory where it has been granted[13].
In our increasingly global world where copyrighted work can be shared instantaneously with the click of the button, the fact that copyright law is territorial can create some nuances when an author seeks to enforce his or her copyright interests in a global arena[14]. Some countries do, however, have treaties with one another that agree on how they will recognize each others’ copyrights[15]. Nigeria for example is a signatory to some international treaties, such as Berne convention, the WIPO copyright treaty, the Paris convention and the Trade Related Aspects of Intellectual Property (TRIPS) convention and Nigerians would enjoy protection in States that are also signatories to these treaties.
In a digital world without clear boundaries, protecting copyright across different countries and legal systems becomes complex. Harmonizing copyright laws internationally and enforcing them effectively is a challenge.
- Fair Use/ Fair dealing:
Balancing the rights of creators and users is crucial. Fair use provisions allow limited use of copyrighted material for purposes such as education, criticism, or parody etc.[16]. The old Act provided limited exceptions for fair use, which allows for the use of copyrighted material for specific purposes such as private use, criticism, commentary, and news reporting. In contrast, the Act permits the use of a work for fair dealing and lists examples in that regard. By making clear that the list of permitted purposes are only examples, the provision is more flexible and adaptable to new uses enabled by digital technology[17].
It can be difficult and subjective to decide what fair usage is and what doesn’t constitute infringement. It is imperative that the Nigerian authorities adopt a nuanced approach when interpreting and applying the laws[18].
- Sufficient Effort versus some effort
For a literary, musical, or artistic work to be eligible for copyright under the old copyright act, “sufficient effort” must have been expended on the work to give it an original character. The new act retains this provision but replaces “sufficient effort” with “some effort”.
The Black’s Law Dictionary defines effort as “An attempt; an endeavour; a struggle directed to the accomplishment of an object.”[19]
The court has always been faced with a difficult task of determining what sufficient effort would mean in each circumstances, the replacement of “sufficient” for “some” in the newly enacted copyright act, makes the formerly herculean task easier, but for copyright owners of literary, musical or artistic works it makes their work more vulnerable in our digital/internet world.
- Technological Advancements:
Rapid advancements in technology constantly challenge copyright laws. Advancements in streaming, cloud storage, and artificial intelligence (AI) make it easier to reproduce and share copyrighted works. The Nigerian copyright Act recently signed into law is yet to recognize and/or grant eligibility of copyright to works created by artificial intelligence.
There has been a recent global spike in applications to register works for copyright authored by machines persons. The old Act granted ownership of copyright to a human author or a corporate body. The new Act appears to retain this definition using the word “person” in its interpretation of the word “author”[20]. As defined by the Act, an author does not include a machine or artificial persons other than a company. Therefore, works created by machines remain ineligible for copyright under Nigerian law.[21]
Comparatively, on March 15, 2023, the U.S. Copyright Office announced that works created with the assistance of artificial intelligence (AI) may be copyrightable, provided the work involves sufficient human authorship[22].
- Online Streaming:
The shift from physical media to online streaming platforms has changed the landscape for artists and content creators. Again, it is common to find people use and share copyrighted work with others without any form of consideration or restraint. To them, work found on the internet is free and belong to nobody. In Nigeria, this misconception is prevalent among the youth who are the dominant user of the internet and so they engage in such immoral act of infringement[23]. Another is uploading copyrighted content on Personal Blogs, the use of copyrighted work must be with the permission of the owner, especially when such use may result to personal benefit in form of heavy traffic to the user blog.[24]Ensuring fair compensation for their work in the digital streaming era is a significant challenge, as revenue models and distribution platforms continue to evolve.
- Enforcement of Copyright laws:
Promulgation of relevant legislation is a good one, but the job is not done just with the right legislations but emphasis ought to be on the implementation of such laws. Legislation with good framework without proper and intentional implementation can be likened to a paper tiger that can only bark but cannot bite.
The problem of implementation of laws in Nigeria is a long age one and copyright law is not immune from this plague. The body saddled with the administration of the Copyright Act in Nigeria is the Nigerian Copyright Commission[25]. The Nigerian Copyright Commission (NCC) is saddled with the responsibility of monitoring, administering and enforcing the Copyright Act and ensuring proper implementation of set out rules and regulations on the citizenry. In this fight, the NCC is faced with a plethora of challenges which include, poor financing, mobility, insecurity, favouritism, poor enforcement mechanism, poor Information and Communication Technology (ICT) knowledge, poor equipment for the implementation of the anti-piracy policies and many more[26]. It is believed that the many challenges faced by the NCC have frustrated creative efforts of legitimate business investors[27].
With the entering into force of the new copyright law[28], which enlarges and grants more functions and powers to the Nigerian Copyright Commission,[29] it is hoped that the Commission will awake to its responsibilities and be proactive with stringent lawful sanctions against infringers and infringing works.
- User-Generated Content and Orphan Works :
User generated content is protected by the copyright law as soon as it is created. The criteria for eligibility[30] once satisfied the work automatically becomes copyrighted.
Platforms like social media have empowered users to create and share their own content. However, this raises copyright issues, as users often incorporate copyrighted materials without proper permissions, some even without knowing and this leads to potential infringement claims.
Orphan works refer to copyrighted materials whose owners or copyright statuses are unknown or difficult to locate. Although the Act did not out rightly recognize Orphan works but inference can be drawn from the provision relating to duration of Copyright[31] that the Act itself is tolerant of authors of orphan works and seeks to preserve rights in such works. The Act recognises works by unknown, anonymous, or pseudonymous writers. If the author of a literary, musical, or artistic work is unknown or pseudonymous, the copyright Act nonetheless allows the work to be protected for seventy years from the start of the year succeeding the year in which it was first published[32].
This poses challenges for using and distributing such works, as it is necessary to determine ownership or obtain permission to avoid potential copyright infringement.
- Licensing and Clearance:
It is a trite legal principle, that you cannot give what you do not have, “Nemo Dat Quad Non Habet”. Knowledge is key, and how can you obey a law that you do not know how it operates It is quite saddening that an average Nigerian in this digital world, does not know the appropriate authority to approach to obtain license to a copyrighted work, also the process and procedure to apply to be licensed to use a copyrighted work.
To obtain rights and permissions to use copyrighted materials, especially in cases of multimedia production, can be complex and time-consuming. Streamlining the licensing and clearance processes, campaign against infringement and educating the citizenry can facilitate legal compliance and reduce the risks of copyright disputes.
Conclusion
With the growth and expansion being witnessed in this digital and technology era, the challenges of Copyright in Nigeria is multifaceted and proactive actions and measures are needed to arrest the damning consequences on fruits of intellectual works and the creator or owners of such intellectual work.
Significantly, the recent Copyright Act largely has copious provisions that seek to bring a new wave and dawn to the space of copyright in Nigeria. It is worthy of note that without proper implementation, the challenges will not only remain but will as well increase.
The Nigerian Copyright Commission should own up to its responsibilities and more importantly the public needs to be educated and sensitized on the provision of the Act and the sanctions for infringement.
Although works do not attain copyright status upon registration, but upon creation, it is advised that copyright owner should not rest on their oars after the work have be created but should take steps to register the work with the Nigerian Copyright Commission.
FOOTNOTES:
* Associate Counsel at Harlem Solicitors.
[1] The Copyright Act, 2022 (shall henceforth be referred to as “the Act”).
[2] Section 2 (1) of the Act
[3] What is the purpose of copyright| Copyright Alliance, available online at https://copyrightalliance.org/education/copyright-law-explained/copyright-basics/purpose-of-copyright/, (accessed on 21 March, 2024).
[4] Asein, J.O, Nigerian Copyright Law and Practice, 2nd ed. (Nigerian Copyright Commission, Abuja, 2004) 6.
[5] Italics for emphasis, it is a legal term for any private property rights that can only be claimed or upheld through an action in court, as opposed to actual physical possession. See Tokington v. Magee [1902] 2 KB 427
[6] See Asein, op. cit., at 7, see Oshinowo v. John Holt Ltd. (Suit No. FHC/L/60/86).
[7] Kings Pere-owei Jonah, Key Innovations of The Nigerian Copyright Act 2022, available online at https://dx.doi.org/10.2139/ssrn.4680524(accessed 25th March 2024).
[8] Sec. 26 of the Act
[9] Sec. 55 of the Act.
[10] See generally PART VII (sec. 63 – 73) of the Act.
[11] Digital piracy among consumers in a developing economy: A comparison of multiple theory-based models, available online at https://www.sciencedirect.com/science/article/abs/pii/S096969891930181X (accessed March 26, 2024 )
[12] Patrick Putman, Cybersecurity and the Modern World, The Consequences of Digital Piracy available online at https://www.uscybersecurity.net/digital-piracy/#:~:text=Aside%20from%20legal%20trouble%2C%20digital,to%20copyright%20violation%20and%20infringement. (accessed March 26, 2024).
[13] There is no such thing as an international copyright law, every state is independent and free to enact its own copyright law as it suits it.
[14] Copyright Resources to support Publishing and Teaching, available online at https://guides.library.upenn.edu/copyright/international(accessed 30th March 2024).
[15] Ibid.
[16]Sec 20(1) of the Copyright Act 2022
[17] Pearl Ekong, Nigeria: Intellectual Property Law In Nigeria: The Copyright Act 2022, available online at https://www.mondaq.com/nigeria/copyright/1327992/intellectual-property-law-in-nigeria-the-copyright-act-2022.
[18] Al-Ameen, Abayomi, Copyright in the Era of Internet Adversity: Pre-Empting a New Dawn for Nigeria (July 11, 2020). Available online at http://dx.doi.org/10.2139/ssrn.3649201
[19] Black’s law Dictionary Sixth Edition.
[20] See Sec. 108 of the Copyright Act, 2022.
[21] Pearl Ekong, Nigeria: Intellectual Property Law In Nigeria: The Copyright Act 2022, available online at https://www.mondaq.com/nigeria/copyright/1327992/intellectual-property-law-in-nigeria-the-copyright-act-2022.
[22] Ibid.
[23] Adetunji, O. Albert, Nosakhare Okuonghae, Challenges Of Copyright Protection In The Digital Age: The Nigerian Perspective, available online at https://digitalcommons.unl.edu/libphilprac/7159/ (accessed March 27, 2024)
[24] Ibid.
[25] Sec.77 of the Copyright Act 2022.
[26] Mary Imelda Obianuju Nwogu, “The Challenges Of The Nigerian Copyright Commission (NCC) In The Fight Against Copyright Piracy In Nigeria”, (2014), Global Journal of Politics and Law Research, Vol.2, No.5, pp.22-34, at 22.
[27] Ameh Ochojila, Challenges of copyright enforcement in Nigeria available online at https://guardian.ng/features/law/challenges-of-copyright-enforcement-in-nigeria/, (accessed 27th March 2024).
[28] The Copyright Act 2022
[29] Sec.78 of the Copyright Act.
[30] Sec. 2(2) of the Copyright Act.
[31] Sec.19 of the Copyright Act.
[32] Sec.19(2)of the Act; see also Ifeanyi C. Ogbodo And Ikechukwu P. Ugwu, Status Of Orphan Works Under Nigerian Copyright Legal Regime, Run Law Journal, (2020), Vol.3, issue 1, pg. 161-173, at 163.
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