Enforcement of Copyright in Nigeria
In Nigeria, enforcing intellectual property rights (IPRs) is a major difficulty. Prior to the Agreement on Trade Related Aspects of Intellectual Property Rights (‘TRIPS Agreement,’ many developing nations lacked intellectual property (‘IP’) laws, and those that did had weak legislation or simply imitated that of their colonial masters.
Copyright is the most frequent of the various IPRs. Copyright’s popularity may be attributable to the region’s thriving cultural and creative sectors, as well as the fact that it accrues naturally without the requirement for registration. These countries’ economies rely heavily on the creative industries, notably those centred on musical and literary works. Despite this, there is a lack of awareness and enforcement of copyright.
The prevention of rights infringement or the acquisition of remedies for infringement of conferred rights is referred to as copyright enforcement. Without enforcement, the law is useless to the people it is supposed to protect. Right owners will not be able to enjoy the legal rights that have been granted to them unless effective enforcement is in place. In this article, copyright enforcement refers to the remedies or punishments available in the event of infringement, with a particular emphasis on court enforcement.
The lack of proper enforcement laws has been cited as a major factor contributing to Nigeria’s weak copyright enforcement regime. In Nigeria, several judicial and administrative methods are used to enforce copyright rights. A copyright is an intangible property right that is legally protected. A copyright holder can use a variety of enforcement procedures to enforce his or her copyright.
The owner of a copyright that has been infringed has three options: civil procedures under section 16-19 of the Act to seek damages and injunctive relief, or criminal proceedings under section 20 of the Act to seek damages and injunctive relief. In the alternative, a copyright violation may be prosecuted in both a civil and criminal procedure under sections 24 and 25 of the Act.
Copyright in Nigeria was governed by the English Copyright Act of 1911 which applied to the country by virtue of an Order in Council made under Section 25 of the Act. This Act remained operative even after independence in 1960 till 1970 when a new law was promulgated as Decree No. 61 of 1970.
A new Copyright Act was passed in 1988 which has been amended in 1992 and also in 1999. The current law which forms the basis of copyright protection is the Copyright Act 1998 (as amended). The judicial remedies available to an alleged infringer under the Act are discussed hereunder.
The civil remedies available for copyright owners include conversion/delivery up, damages, injunctions and accounts. The inspection and seizure order available under the Copyright Act, similar to an Anton Piller order, is an effective tool for seizure and preservation of evidence.
Damages refer to monetary compensation paid to a copyright owner for infringement of his rights. There are different types of damages. In an action for infringement of copyright, actual damage need not be proved as damages are at large. Mere infringement of copyright gives rise to damage to which the claimant is entitled. In Claydon Architectural Metalwork ltd v. D J Higgins & Sons, the court held that the normal measure of damages for copyright is the amount by which the value of the copyright as a ‘chose in action’ has been depreciated.
Although the most common compensatory damages are general and special damages, the court in copyright cases can also grant punitive or exemplary damages which are intended to punish the defendant and serve as a deterrent which are referred to as additional damages under the Act.
Section 16(4) of the Copyright Act provides for the grant of additional damages as the court may deem appropriate in the circumstances where it is satisfied that effective relief would not otherwise be available to the claimant. The court is to have regard, apart from all other considerations, to the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement.
An injunction is another important remedy for copyright infringement. It is essentially an equitable remedy which is granted at the discretion of the court compelling a party to do or refrain from doing an act. An interlocutory injunction which is granted pending the final determination of a case on the merits is very effective in copyright infringement. This ensures that the parties maintain status quo till the determination of the case. It is used by the copyright owner to restrain the alleged infringer from further acts of infringement in order to prevent irreparable damage.
Interim injunction is also very useful for copyright enforcement though it lasts for a short time, usually pending the happening of an event such as the hearing and determination of a motion on notice or until a named date.
It is granted only in cases of urgency requiring an immediate relief and usually made ex parte though in most cases there must be an accompanying motion on notice to be served on the other party. This ensures that the opposing party is informed about the order and has an opportunity to be heard during the determination of the motion on notice. Because of the urgency, the applicant need not have instituted an action by filing or serving a writ.
The conditions for the grant of an injunction are as stated in American Cynamid Co. v. Ethicon Ltd. The claimant has to satisfy the court that he has an arguable case. This does not mean a strong case; a prima facie case would be sufficient.
Damages must not be a sufficient remedy; where damages are sufficient, an injunction would not be granted. The court would also weigh the balance of convenience. The financial standing and ability to liquidate damages is also considered. Being an equitable relief, the conduct of the parties is important in the consideration of the court.
Account of Profits
The Copyright Act also makes provision for account of profits which is available where an infringement has taken place but the defendant at the time of infringement was not aware or had no reasonable grounds for suspecting that copyright subsisted in the work to which the action relates. In such instances, the claimant shall not be granted damages, he is however entitled to an account of profits made by the defendant from commercially dealing with the copyright work.
The onus of proving innocent infringement lies on the defendant. A claimant cannot have both damages and accounts of profits together in order to prevent double compensation. However, according to the Act, once it is a case of innocent infringement, the claimant ceases to have a choice; he can only have an account of profits.
It is therefore important for copyright owners to put the copyright notice on their works in order to avoid such a situation. This means that their work should bear the copyright © symbol, the name of the copyright owner and the year of first publication placed in such manner and location as to give reasonable notice of the claim of the copyright owner.
Account of profit is originally an equitable remedy which aim is to prevent the unjust enrichment of the defendant. It is only awarded where the defendant has indeed made profits from the copyright work. Where this is not the case, it is not awarded. The profit awarded is the net profit (gross profit excluding all expenses in the production of the work). The court also has to determine the profit that came directly as a result of commercial dealings with the infringed work and not necessarily the entire business of the defendant.
Inspection and Seizure Order
Another essential remedy which serves as an effective tool in the hands of a copyright owner in the fight against infringement is the inspection and seizure order. This order is essentially a statutory codification of its equivalent equitable remedy, the Anton Piller Order.
It permits the applicant to enter into the premises of the defendant to inspect for infringing goods and any other evidence that is essential to prove the applicant’s case and it could also permit the applicant to seize and preserve such evidence.
The essence of this order is the discovery and preservation of evidence where the defendant is likely to remove or destroy such evidence if notified which would be detrimental to the applicant’s case. Hence, it is made ex parte in order to benefit from the surprise effect on the defendant.
In Anton Piller KG v. Manufacturing Processes Ltd, the court laid down the conditions for the grant of this order. It has to be an exceptional circumstance and the claimant must have a strong prima facie case. Potential or actual damage to the claimant should be serious and it should be clear that the defendant possesses vital evidence necessary for the claimant’s case.
There must also be a real possibility of the defendant destroying or disposing of such evidence in order to defeat the ends of justice. When these circumstances are fulfilled, the court may order the defendant to ‘permit’ the claimant to enter his premises to inspect and/or remove such evidence. Being an injunction, the conditions for granting an injunction must also be fulfilled before grant.
The court in Anton Piller KG distinguished this order from a search warrant in that there can be no forceful entry into the premises. Rather the order puts pressure on the defendant or orders him to permit the entry of the claimant through a consequence of contempt of court if the order is disobeyed.
However, under section 25, it seems that the defendant is not simply ordered to ‘permit’ the entry of the claimant. The permission to enter is given by the court directly to the claimant. It has been argued that this order, by its nature, negates the constitutional right of fair hearing. However the court has permitted its use justifying it by the fact that the order is granted only in extreme cases, and having regard to the urgency of the situation, it must be granted where it is possible that no appreciable harm will be done if the parties are given time to argue the merit of the case.
In Akuma Ind. Ltd v. Ayman Ent. Ltd, the court held that Anton Pillar order, although seemingly appearing as a monstrosity, has become accepted within the vortex of our legal doctrines and jurisprudence. Under the Act, the applicant is accompanied by a police officer not below the rank of an Assistant Superintendent of Police (ASP). The penalty for providing false information is only a paltry sum of One Thousand Naira (₦1000.00). Such an amount is in no way deterrent and would not be useful to the applicant if the defendant furnishes false information.
A copyright owner can also have the infringing materials and/or the equipment used in their production converted to him. The court can also order that such goods be delivered up to the copyright owner or for destruction.
Under the Act, infringing works and materials/equipment used in their production are deemed to be the property of the copyright owner and the latter can institute proceedings to have these converted to him. However, in order to prevent double compensation, such a copyright owner would not be entitled to damages anymore.