Copyright in Nigeria
In simple parlance, an Intellectual Property (shortly called IP) is an intangible property; creation of the mind.
Intellectual Property rights are therefore legal provisions that seek to protect the sanctity of these properties by forestalling and restraining unauthorized exercises. Such unauthorized engagements, if and when they occur, are known as infringements. One of these intellectual proprietary rights is called Copyright.
As earlier adduced, copyright is a vast Intellectual Property right and can thus overlap with other rights in certain spheres. For instance, a logo may be protectable by Copyright and Trademark law, or a computer programme with Copyright or Patent.
In Nigeria, copyright is statutorily regulated by the provisions of the Nigerian Copyright Act of 1988 (hereinafter referred to as CA or ‘the act’).1 For the administration of copyright in the country, the act provides for the establishment of the Nigerian Copyright Commission (hereinafter referred to as NCC or ‘the commission’).2
According to the CA, a work is eligible for copyright protection if it is a literal, musical, or an artistic work, cinematography film, sound recording or broadcast. Literal, musical, and artistic works must be in a fixed medium of expression and possess originality. A work shall not be eligible if it was made as a model or pattern to be multiplied by an industrial process.3 Copyright protection also extends to other related rights like performer’s right and expressions of folklore.
Ownership of Copyright
The copyright of a work is vested in the author. And in the case of joint authorship, where the contribution of one author is inseparable from that of another, both or all authors involved shall be co-owners of the copyright.4
In case of a work by an employee made as commissioned in the course of their employment, like a writer for a newspaper, the copyright shall belong to the proprietor, unless otherwise provided by an agreement. If not so commissioned, or commissioned by someone who is not the author’s employer, the copyright shall belong to the author.5
Acquisition of Copyright
With consideration of its status of eligibility, copyright shall be conferred on a work whose author is a citizen of or domiciled in Nigeria, or a body corporate incorporated under the laws of Nigeria.
Alternatively, the author may be a citizen or be domiciled in a country, or a body corporate incorporated in such country, that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party. Additionally, the work as a literal, musical or artistic creation must be first published in any of these countries.6
Registration of Copyright
Registration of copyright is not required by the CA. In other words, eligible works are automatically copyrighted without any form of official registration. However, the NCC has a database for owners of copyrights to register them with the commission.7 This would suffice as a good tool for proving ownership.
Duration of Copyright Protection
The duration of the subsistence of copyright protection in a work depends on the type of the work. For literary, musical and artistic works, copyright subsist from when the work is made still seventy (70) years after the end of the year in which the author dies. In case of works with joint authorship, the death of the author refers to the death of the author who dies last.
As for cinematography films, photographs, and sound recordings, copyright shall subsist from when the work was made still fifty (50) years after the end of the year in which it was first published. And lastly, copyright shall subsist in a broadcast still after fifty (50) years after the end of the year in which the broadcast first took place.8
Transmission of Copyright
The owner of a copyright may assign his rights or license some acts to be done to the work. In assignment, copyright is transmissible by testamentary disposition or operation of law, as a movable property.9
Any assignment of copyright or exclusive license to do an act must be in writing for it to be valid. A non-exclusive license may, however, be oral or inferred from the conduct of the parties.
Copyrights of a work to be made in the future, or future rights which would emanate from an existing work, are transmissible by operation of law as movable property.10
Ancillary rights relating to Copyright in the Nigerian situation are Moral rights, Performer’s right and the Protection afforded to expressions of folklore. Moral rights protect the author from derogatory actions, including mutilation of his work, that may be disparaging to his reputation or honour. Performer’s right protect works from being publicly performed, and expressions of folklore are also protected from being reproduced outside their traditional structures.11
A collecting body represents a substantial number of owners of copyrights in a category of work. It is formed to manage the rights of its members, issue licenses and collect royalties. A notable example of a collecting body is the defunct Copyright Society of Nigeria (COSON).12
COSON was licensed to manage the copyright of artists in musical works and sound recordings. It has now been replaced with the Music Copyright Society of Nigeria (“MCSN”). When a collecting body is effective in the management of the rights licensed to it, the commission shall not approve another society in respect to those rights.13
Infringement of Copyright
Among other causes, an infringement of copyright occurs when there is an unauthorized exercise of a copyrighted work. Whether by way of reproduction, distribution, mutilation, or public performance, any unauthorized dealing with a copyrighted material, against such copyright, amounts to infringements.14 A person who commits such infringement may be called an infringer.
A secondary infringer is one who aids or abets or actively participates in an infringement.
Action on Infringement of Copyright
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.15
Also, an action relating to infringement of copyright may be civil or criminal. A civil action may arise between two parties. On the other hand, the NCC may institute a 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.16
Defense to Infringement
A claim of infringement may be defended on the ground of lack of knowledge. This is when the defendant had no reasonable reason to believe that the infringing work is an infringing copy of the original work.17
Also, acts of fair dealing for the purposes of research, private use, criticism or review may not amount to infringement of copyright. Moreover, ‘incidental occurrence’ is a valid defense also.
Judicial reliefs in actions of Infringement
The court, in a case of copyright infringement, might grant injunctions or damages. As ex parte, a court may order an interim injunction to prevent an act of infringement until the case is determined. A permanent injunction may be granted at the end of the case in favour of a party.
Also, the court may give an Anton Piller order to restrain a party from destroying evidences of infringement. In Oladipo Yemitan v. The Daily Times (Nig.) Limited,18 the plaintiff claimed his work was reproduced verbatim by the unauthorized defendant. The court awarded damages of #10,000 and #15,000 as exemplary damages against the defendant.
1Cap. C28 LFN 2004.
2Section 34, Copyright Act 1988
3Section 1, Copyright Act 1988
4Section 2 (1), (4), 51 – “work of joint authorship”
5Section 10, Copyright Act 1988
6Section 2, 5, Copyright Act 1988
8First Schedule (Terms of Copyright) Copyright Act 1988
9Section 11 (1), Copyright Act 1988
10Section 11 (7), Copyright Act 1988
11The International Comparative Legal Guide to: Copyright 2017 (3rd edition) Nigeria. S. P. A. Ajibade & Co.
John C. Onyido, Yetunde Okojie.
12Nigeria: Federal High Court rules that COSON’s operating licence has lapsed – Music in Africa(https://www.musicinafrica.net/magazine/nigeria-federal-high-court-rules-cosons-operating-licence-has-lapsed, retrieved on 19/5/2022)
13Section 39 (3), Copyright Act 1988
14See section 15, Copyright Act 1988
15Section 16 (1), Copyright Act 1988
16See Nigerian Copyright Commission vs. MTN Nigeria Communications Limited. Suit No. FHC/ABJ/CR/379/15
17Section 20, Copyright Act 1988
18[1977-1989] 2 IPLR 141