Author: Margaret Ogbonnah.
Introduction
Copyright is a form of intellectual property. It has been defined by Black’s Law Dictionary, 9th Edition 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.
The Copyright Act Chapter C28 Laws of the Federation of Nigeria 2004 (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: Literary works, Musical works, Artistic works, Cinematographic films, Sound
recordings and broadcasts. Therefore, any work that is created which does not fall under the foregoing categorisation cannot vest copyright on its creator.
Furthermore, it is not sufficient to have created a work; such work will only be eligible for legal protection if: the literary, musical or artistic work has been fixed in a definitive form and effort has been expended on the work to give it an original character. This article explores Copyright Protection in Nigeria.
Conceptual Clarification of Copyright
A copyright is an exclusive right given to the originator of a creative work to reproduce the work for a limited period. Copyright protects the work of authors, artists, songwriters, music publishers and composers, photographers and other creatives. The primary copyright law in Nigeria is the Copyright Act Cap C28 LFN 2004 (the Act)¹.
Moreso, The Copyright Act (the Act) makes provision for the protection, transfer, infringement, and remedies for the infringement of copyrights in
Nigeria. It is important to note that not all creative works are eligible for copyright. Section 1(1) of the Copyright Act LFN 2004 states that the following
listed works qualify for copyright:²
➢ Literary works
➢ Musical works
➢ Artistic works
➢ Cinematograph films
➢ Sound recordings.
Furthermore, Section 1(2) of the Copyright Act provides that a literary, musical, or artistic work shall not be eligible to be copyrighted except the following
occurs:³
➢ Sufficient effort was expended in making the work to give it its original character;
➢ The work has been fixed in a definite medium of expression that is now known or to be developed later from which it can be perceived either directly or with the aid of any machine.
In a nutshell, the law protects originality and to be considered original, a work must not be derived from another and must have been created independently. It should not be an adaptation or a reproduction of another person’s work. It also suffices to mention that such work must be a product of creative expression that falls under a category of copyrightable subject matter.
Finally, a work must be fixed in a tangible medium of expression. An eligible work is deemed copyrighted the moment the work is fixed. A work is considered to be fixed so long as it is sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. In other words, an idea cannot form a copyright because it is a collection of thoughts and is not fixed in a medium of expression.
Registration of Copyright in Nigeria⁴
It is pertinent to state that unlike other forms of intellectual property like patents, designs and trademarks, a work that is eligible for copyright does not
need to be registered in order for it to enjoy legal protection. An eligible work enjoys protection as soon as it is created and fixed in a definite medium.
However, the Nigerian Copyright Commission (NCC) provides owners of copyrights the option to deposit a copy of their works with the NCC and receive
a certificate which serves as notification of the existence of the work to the general public. Section 34 (2 (3) of the Copyright Act states that the NCC is also
required to maintain an effective data bank on authors and their works.⁵
Moreso⁶ although, the maker is automatically deemed to be the owner of a copyright, with or without registration. However, registration provides
protection in respect of a copyright works and it is prima facie evidence of title, where there are conflicting rights in respect of any copyright. By and large, the advantages of copyright registration include the followings:
• Independent source of verifying data relating to a work or its author to the general public
• The acknowledgment certificate issued to the author who notifies the Commission of his work provide prima facie evidence of the facts shown on it;
• The Commission provides a depository for preserving original copies of works notified;
• The information and data contained offers reliable rights management information to members of the public and prospective licensees to the work.
Duration of Copyright in Nigeria⁷
It is important to note that copyright does not vest in the author forever. The First Schedule to Copyright Act LFN 2004 provides for the duration of copyright protection in a work:
For literary, musical, and artistic work other than photographs; the Copyright Act stipulates seventy years after the end of the year in which the author dies and in the case of a government or a body corporate, seventy years, after the end of the year in which the work was first published.
For Cinematograph films and photograph; the Copyright Act stipulates fifty years after the end of the year in which the work was first published.
For sound recordings, the Copyright Act stipulates fifty years after the end of the year in which the recording was first published.
For broadcasts, the Copyright Act stipulates fifty years after the end of the year in which the broadcast first took place.
Copyright Infringement⁸
Investopedia defines Copyright infringement as the use or production of copyright-protected material without the permission of the copyright holder. It
further defines copyright infringement as the rights afforded to the copyright holder, such as the exclusive use of a work for a set period of time, are being
breached by a third party.
Section 15 of the Copyright Act provides for the infringement of Copyright in Nigeria. Copyright is infringed by any person who, without the licence or
authorisation of the owner of the Copyright does the following acts:
➢ Does or causes any other person to do an act, the doing of which is controlled by copyright.
➢ Import or causes to be imported into Nigeria any copy of a work which it had been made in Nigeria would be an infringing copy.
➢ Exhibit in public any article in respect of which copyright is infringed.
➢ Distributes by way of trade, offers for sale, hires, or otherwise for the purpose prejudicial to the owner of the copyright any article in respect of
which copyright is infringed.
➢ Makes or has in his possession plates, master tapes, machines, equipment, or contrivances used for making infringed copies of the work.
➢ Permits a place of public entertainment or business to be used for a performance in public of the work, where the performance constitutes an infringement of the copyright in work, unless the person permitting the place to be used not aware, and had no reasonable ground for suspecting the performance would be an infringement of the copyright.
➢ Performs or causes to be performed for trade or business or as supporting facility to a trade or business, any work in which copyright subsists.
Institution of Copyright Infringement⁹
An action on infringement may be brought by the owner of the copyright, an assignee or an exclusive licensee to the Federal High Court exercising
jurisdiction where the infringement occurred. Such reliefs by way of injunction or damages shall be available to the plaintiff.
Also, an action relating to the infringement of copyright may be civil or criminal. A civil action may arise between two parties. On the other hand, the NCC may institute criminal action against the infringer. Notably, a civil and criminal action may run simultaneously on the same fact of infringement, and the criminal action may subsist even if the parties had settled the civil claim.
Remedies of Infringement¹⁰
There are remedies available to authors of copyright works whose copyrights have been infringed upon. For example, they may write a letter of demand that, the person infringing their copyrights to stop the infringement, deliver all original and copies of the infringed work to them and pay compensation for use of their work.
In the event that the infringing party does not respond to such demand, the copyright owner can commence an action at the Federal High Court, seeking to
claim damages for the infringement and an injunction preventing the infringer from further perpetrating such act.
Furthermore, there are criminal liabilities for any persons that infringe on another’s copyright. Specifically, Section 20 of the Copyright Act provides that a
person who makes or causes to be made for sale, hire, or for the purpose of trade or business any infringing copy of a work in which copyright subsist or imports or causes to be imported into Nigeria a copy of any work which if had been made in Nigeria would be an infringing copy or make or causes to be made, or has in his possession any plate, master tape, machine, equipment or contrivance for the purpose of making any infringing copy of any such is criminally liable. The punishment upon conviction is five years of imprisonment or a fine or both.
Conclusion
Copyright is an important aspect of intellectual property that should be taken seriously by every creative in this era, as it plays a crucial role in protecting the value and interests of creatives and provides opportunity for creatives to fully exploit the works created by them. It provides an avenue for the balance of a creative’s desire for financial rewards and a user’s access to the creative work for societal benefits.
References
1. Copyright Act Cap C28 LFN 2004.
2. Section 1(1) Cap C28 Copyright Act LFN 2004.
3. Section 1(2) Cap C28 Copyright Act LFN 2004.
4. Section 34 (2 (3) Cap C28 Copyright Act LFN 2004
5. First Schedule to Copyright Act LFN 2004
6. Section 15 Cap C28 Copyright Act LFN 2004
7. Section 16 Cap C28 Copyright Act LFN 2004
8. Section 20 Cap C28 Copyright Act LFN 2004
9. https://inventa.com/en/news/article/812/nigeria-copyright-and-theprotection-of-creatives.
10. https://www.mondaq.com/nigeria/copyright/692416/an-overviewof-copyright-protection-in-nigeria-part-1
11. http://www.resolutionlawng.com/copyright-laws-innigeria/#:~:text=ADMINISTRATION%20OF%20COPYRIGHT%20IN%20NIGERIA,composers%2C%20photographers%20and%20other
%20creatives.
DISCLAIMER
This article is for information purpose, it may, or may not reflect the current position of the law and is therefore not intended to provide legal advice or
guidance on litigation or provide commentary on any pending case or legislation.
1 Copyright Act Cap C28 LFN 2004 (the Act)
2 Section 1(1) of the Copyright Act LFN 2004
3 Section 1(2) of the Copyright Act
4 https://www.mondaq.com/nigeria/copyright/692416/an-overview-of-copyright-protection-in-nigeria-part-1
5 Section 34 (2 (3) of the Copyright Act
6 http://www.resolutionlawng.com/copyright-laws-innigeria/#:~:text=ADMINISTRATION%20OF%20COPYRIGHT%20IN%20NIGERIA,composers%2C%20photographers%20and%20other%20creatives.
7 First Schedule to Copyright Act LFN 2004
8 Section 15 of the Copyright Act
9 Section 16 of the Copyright Act
10 Section 20 of the Copyright Act