Overview of Copyright Infringement in Nigeria

Overview of Copyright Infringement in Nigeria

Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. Copyright infringement means that 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.

Overview of Copyright Infringement in Nigeria

Copyright infringement occurs when works protected by copyright law are used without permission for a purpose for which permission is required, infringing on the copyright holder’s exclusive rights, such as the right to reproduce, distribute, display, or perform the protected work, or the right to create derivative works.

In determining whether or whether there was infringement, the infringer’s mental state is irrelevant. This point was well taken and clearly decided in the case of Plateau Publishing Company Ltd. v Chief Chucks Adophy where it was held that ‘state of mind of the infringer is only relevant in the determination of the question whether damages will be awarded or whether an inquiry as to profit will be ordered.’ Infringement can take two forms: direct and indirect. The basic prerequisite in both direct and indirect infringement is that the act of infringement complained of did not occur with the owner of the copyright’s permission or authorization.

Copyright infringement may also result in criminal penalties, as it is a crime for which anyone found guilty faces a fine. Thus in Nigerian Copyright Commission v Oba Okechukwu the accused was sentenced to three months imprisonment and a fine of N12,600 for the sale of 126 infringing copies of cinematograph films and musical works in DVDs, VCDs, CD formats in breach of section 20 (2) (a) and (c) of the Copyright Act. In fact, a good survey of recent decisions will reveal that more cases involve criminal liabilities than civil liabilities.

Furthermore, the Act allows for both criminal and civil actions to be brought against the same infraction at the same time. This was the case in NCC V MTN where the NCC instituted this criminal suit after a civil proceeding that was settled out of court for #50billion naira. According to the NCC the ongoing criminal proceeding when concluded will serve as stronger deterrent against Copyright infringement.

In any case of infringement, the plaintiff must show not only that the work in question is so similar to his that it is capable of being an infringement, but also that it was created by employing those features of his work that, due to the knowledge, skill, and labor employed in their creation, constitute its original copyright work.

If a work is copied without the permission of the copyright owner, the copyright is violated. According to the Act, anybody who is not the owner of the copyright in a literary or musical work may not reproduce or authorize the reproduction of the work in any material form without the owner’s permission. The manufacturing of one or more copies of a literary, musical, or artistic work, cinematograph film, or sound recording is defined as reproduction in S.51. As a result, someone who creates an exact replica of the owner’s work has plainly replicated it.

A plaintiff who claims that the defendant’s copying of his work has infringed on his rights must show the court that the defendant copied his work and that the copying was substantial enough to be illegal. Furthermore, the plaintiff must establish that the defendant had access to the plaintiff’s work; otherwise, copying is unlikely.

A literary or musical work is infringed when it is published without the owner’s permission or license. Publication, as defined under S.51 of the Act, occurs when copies of the work are made available in a manner sufficient to make it accessible to the public, and where, in the first instance, only a part of a work is published, that part is treated as a separate work for this purpose. Making the work available to the public, either for sale or for free, is referred to as publication.

It is a copyright infringement to perform a work in public without the owner’s agreement, according to S.51 (1) (g). The legislation actually forbids the work from being performed in public. It is consequently critical to demonstrate not merely that a performance took place, but also that the performance took place in public. Determining what constitutes a public performance is a matter of fact with no predetermined criterion. The court, on the other hand, has considered criteria such as profit, the number and character of the audience, the audience’s relationship to the copyright owner, and the type of venue where the performance took place to determine the audience’s character.

Infringement can also occur when someone distributes, by way of trade, offer for sale, hire, or otherwise, or for any purpose injurious to the copyright owner, any article in which the copyright is directly infringed.

Permitting a place, public entertainment, or business to be used for a public performance of a work that constitutes an infringement of the copyright in the work is an infringement unless the person allowing the place to be used was unaware, or had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright in the work. The location in question, however, must be a public place of amusement or business, not a private or domestic property.

The Act forbids the importation into Nigeria of any copy of a work that would be considered an infringing copy under the Act if it had been created in Nigeria. The plaintiff is not need to prove that the copy’s intended use is private or domestic, albeit the defendant’s claim may be persuasive.

There are three types of infringement: (1) direct infringement, (2) contributory infringement, and (3) vicarious infringement.

In Direct infringement a plaintiff proves direct copyright infringement by showing (1) ownership of a valid copyright and (2) that the defendant copied the work (or violated one of the plaintiff’s exclusive rights as a copyright owner).

However, in most cases evidence of direct copying will not be available, so courts use the two-part “substantial similarity test” in which a plaintiff can establish copying by showing that (1) the infringer had access to the work and (2) the two works are substantially similar. The defendants in these cases are known as “direct infringers.

Contributory copyright infringement is not based on a statute but rather on tort law. A contributory infringer is someone who induces, causes, or materially contributes to the infringing conduct of another person or entity. The contributory infringer must also have knowledge of the infringement.

Vicarious copyright infringement is based on the agency principle of respondeat superior, i.e., the employer-employee relationship, but may be shown even in the absence of such a relationship. A vicarious infringer is a person or company that (1) has the right and ability to control the acts of the direct infringer, and (2) has a direct financial interest in the infringing act.

 

Read also: Overview of Copyright in Nigeria

Read also: Canada Study Permit

 

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