COPYRIGHT LAW : ILLUMINATIONS ON THE INFRINGEMENT OF COPYRIGHT IN NIGERIA

INTRODUCTION:

 

This edition of the Legal Illumination of Akintunde Esan (The Legal Adviser Online) is on copyright protection, copy infringement and remedies for copyright infringement in Nigeria.

Intellectual property law protects the creation of human mind and human intellect and it is divided into two branches, namely Industrial Property law and Copyright law. Industrial property law protects the inventions while Copyright law protects literary and artistic works as well as creations in the field of neighbouring rights. See: Ifeanyi  Okoyo & Anor v. Prompt & Quality Services & Anor. (2003 – 2007) 5 I.P.L.R  117 at 130,paras.d-f ,per Kasim .J (F.H.C)

 

COPYRIGHT:

 

Copyright law and practice in Nigeria is governed by the Copyright Acts of 1970 & 1988, there have also been amendments introduced to the Act in 1992 & 1999.

There are also several treaties and international agreements on Copyright to which Nigeria is a party or signatory such as:

• THE BERNE CONVENTION 1886;
• THE UNIVERSAL COPYRIGHT CONVENTION 1952;
• ROME CONVENTION;
• TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS [TRIPS]; and
• THE WORLD INTELLECTUAL PROPERTY ORGANISATION [WIPO].

INFRINGEMENT OF COPYRIGHT 

 

Under Section 15(1) of the Copyright Act, copyright is infringed by any person who without the license or authorization of the owner of the copyright: 

 

1. Does or causes any other person to do an act, the doing of which is controlled by copyright;

 

2. Imports or causes to be imported into Nigeria any copy of a work which if it had been made in Nigeria would be an infringing copy. 

 

3. Exhibits in public any article in respect of which copyright is infringed.

 

4. Distributes by way of trade, offers for sales, hire or otherwise for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed. 

 

5. Makes or has in his possession, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the works; 

 

6. Permits a place of public entertainment or business to be used for a performance in the public of the work, where the performance constitutes an infringement of the copyright in the work, unless the person permitting the place to be used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright; 

 

7. Performs or cause to be performed for the purpose of trade or business or as supporting facility to trade or business, any work in which copyright subsists. 

 

ACTION FOR INFRINGEMENT 

 

Under section 16 of the Copyright Act, an infringement of copyright suit can only be filed in the Federal High Court in the jurisdiction where the infringement occurred by:

 

- The owner;

- An assignee; or

- An exclusive licensee of the copyright

 

Where the owner and an exclusive licensee have concurrent rights of action, none of them may, without leave of court, proceed with the action unless the other is joined as plaintiff or added as defendant.

 

NATURE OF RELIEF CLAIMABLE

 

In an action for infringement, all such relief by way of damages, injunction, accounts of profits or otherwise is available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other proprietary rights. See: section 16 (1).

 

1. Damages:

 

Exemplary, infringement and flagrant Damages

 

Where in an action, infringement of copyright is proved or admitted, the court may award additional damages if it satisfied that effective relief would not otherwise be available to the plaintiff, having regard (apart from all other factors) to:

 

(a) The flagrancy of the infringement, and

 

(b) Any benefit shown to have accrued to the defendant by reason of the infringement - s. 16 (4). In Plateau Publishing Co. Ltd. v.Chief Chuks Adophy [1986] 4 NWLR (Part 34) 205, the court refused to apply a similar provision in the repealed Copyright Act, 1970.

 

2. Conversion Rights: 

 

All infringing copies of a copyright work or part of it and all plates, master tapes, machines, equipment or contrivance used, or intended to be used for the production of such infringing copies are deemed to be the property of the owner, assignee or exclusive licensee, as the case may be, of the copyright who accordingly may take proceedings for the recovery of possession of those articles or in respect of conversion of them. See: Section 18.

 

In Haritz Ibezim Okilo v. Dick Francis & Anor. (2003- 2007) 5 I.P.L.R 230 at 244 -245, per Ukeje .J (FHC LAGOS) held that: 

 

“2. The Plaintiff seeks an Order restraining the 1^st Defendant from using the Plaintiff’s Original DAT TAPE of the music work.In that regard, by Section 18 of the Copyright Act,(Cap C 28), which relates to conversion right, it is provided that an exclusive licensee of a Copyright may institute an action for the recovery of the possession of his Master Tape or an action to restrain the conversion of the Master Tape of the musical work, in this case, “Happiness De Answer

The Plaintiff has instituted this Action for recovery of his Master or DAT (master) Tape of “Happiness De Answer”. Again, by virtue of evidence of the parties before the Court, the 1^st   Defendant’s admission of receiving the DAT Tape, the 1^st Defendant’s failure to return the tape from 1992-2006, and also by the provisions of Section 18 of the Copyright Act relating to conversion right, the Plaintiff has proved his entitlement to an Order to compel the 1^st Defendant to return the DAT Tape of the Plaintiff’s musical work, “Happiness De Answer” 

Accordingly, the Plaintiff’s second claim also succeeds and the 1^st Defendant is hereby restrained forthwith to stop the infringement of the musical work, “Happiness De Answer””

 

Thus, the owner of a copyright has three causes of action:

 

a. Action for infringement of the copyright;

 

b. Action for conversion of the offending articles; and

 

c. Recovery of the offending articles

 

3. Breach of Statutory Duty:

 

An infringement of rights conferred by sections 10 and 12 of the Copyright Act is actionable as a breach of statutory duty owned to the person entitled to the rights See: section. 19 (1) and Haritz Ibezim Okilo v. Dick Francis & Anor (2003- 2007) 5 I.P.L.R  230 ,per Ukeje .J (FHC LAGOS)

 

“Section 19(1) and (2) of the Copyright Act, create the strict liability, statutory offence where an infringement of Copyright is proved. Subsection (2) confers in the Copyright owner, an entitlement to award of damages, injunction and such other remedies as this Court may deem fit to make in the circumstance. In that case, there is no need to specially or specifically prove damages.”

 

4. Criminal Sanctions:

 

Simultaneity of Civil and Criminal Actions Civil and criminal actions may be taken simultaneously in respect of the same infringement. See: Section 24.

 

5. Inspection and Seizure: 

 

In any action for infringement of any right, where any exparte application is made to the court, supported by affidavit, that there is reasonable cause for suspecting that there is in any house, or premises any infringing copy or any plates, film or contrivance used or intended to be used for making infringing copies or capable of being used for the purpose of making copies of any infringing article, book or document, the Federal High Court may issue an order authorizing the applicant to enter the house or premises at any reasonable time by day or night accompanied by a police officer not below the rank of an Assistant Superintendent of Police, and:

 

a. Seize, detain and preserve any such infringing copy or contrivance,

 

b. Inspect all or any relevant documents in the custody or under the control of the defendant.

 

DEFENCES TO INFRINGEMENT OF COPYRIGHT

 

The right of a copyright owner in respect of literary, musical, artistic works and cinematography films does not include the right to control:

 

(a) Fair Dealing: The doing of the act by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it must be accompanied by an acknowledgement of the title of work and its authorship except where the work is incidentally included in a broadcast.

 

(b) The doing of any of the aforesaid acts by way of parody, pastiche, or caricature.

 

(c) The inclusion in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public.

 

(d) The reproduction and distribution of copies of any artistic work permanently situated

 

(e) The incidental inclusion of an artistic work in a film or broadcast, etc.

 

(f) Any use made of a work in an approved educational institution.

 

It is important to note that:

 

It is important to note that the exceptions in paragraphs (a), (h), (k) (I) and (p) of Schedule 2 to the Copyright Act apply to copyright in sound recording in like manner as they apply to copyright in literary, musical or artistic work or a cinematography film .See Section. 6 (2).While the exceptions in paragraphs (a), (h), (k), and (0) of Schedule 2 apply to copyright in broadcasts. See: Section 7 (3).

 

DEFENSE OF INNOCENT INFRINGEMENT –

 

Where in an action for infringement of copyright it is proved or admitted that an infringement was committed but that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work, the plaintiff will not be entitled to any damages, but to an account of the profits made through the infringement - (section I 6( 3). 

 

In Plateau Publishing Co. Ltd. v.Chief Chuks Adophy [1986] 4 NWLR (Part 34) 205 it was held that this defense is available on to the author of the infringing article and not the publisher of the article. 

 

RECIPROCAL EXTENSION OF PROTECTION 

 

Copyright law generally operates within the borders of the country making it and benefits only works made by its citizens or aliens domiciled therein. To remedy this situation, provision is made for reciprocal extension of protection to persons in other countries. 

 

Where any country is a party to a treaty or other international agreement to which Nigeria is also a party, and the Minister responsible for culture is satisfied that the country provides for protection of copyright in works which are protected under the Act, the Minister may by order in the Gazette extend the application of the Act in respect of any or all of the works referred to in section. (1) of the Act: 

 

(a)     To individuals who are citizens of or domiciled in that country; 

 

(b)     To bodies corporate established by or under the law of that country; 

 

(c)     To work, other than sound recording and broadcasts first published in   that country; and 

 

(d)     To broadcasts and sound recording made in that country 

 

In Microsoft Corporation v. Franike Associates Ltd (2012) 5 CLRN 145 at 157,lines 25 – 31,158 lines 36 -41, it was  held that for a court to hear a claim on foreign regulated copyright, such claim must be accompanied by a certificate from the Nigerian Copyright Commission or publication in the Gazette showing extension of copyright protection.

 

You are advised to contact Akintunde Esan (The Legal Adviser Online), a Legal Consultant on intellectual property for further legal illumination or legal advice on copyright protection, copyright infringement and remedies available to redress the infringement of  your copyright or intellectual property in Nigeria.