LEGAL FRAMEWORK
Although Nigerian copyright law has many of its English roots, it is generally derived from a Nigerian statute and is constantly molded by Nigerian courts. In Nigeria, there are numerous sources of copyright law, including international and national treaties and legislation. We will, however, take into account the Nigerian Copyright Act and the 1999 Constitution.
Constitution
The Constitution of the Federal Republic of Nigeria, 1999, is one piece of local legislation that affects intellectual property in Nigeria. Because it is the supreme law of the land, it supersedes all other laws in the country. Its provisions on any subject matter supersede any other law’s provisions on the same subject. The exclusive legislative list includes copyright, patents, industrial designs, trade/business names, trademarks, and merchandize marks.
All legislation is subject to the supremacy of the constitution; hence any statutory provision that is in conflict with the constitution is nullified to the extent of the inconsistency. Because of the constitution’s supremacy, any legislation or general rule of law relating to copyright would be subject to its interpretation and application. Apart from establishing the boundaries of other laws, the constitution has specific copyright restrictions.
Section 251(1) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended 2011) (CFRN) provides that
‘Notwithstanding anything to the contrary contained in this Constitution … the Federal High Court shall have and exercise exclusive jurisdiction to the exclusion of any other court in civil causes and matter:” Any Federal enactment relating to copyright, patent, designs, trademarks and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards.’
It is self-evident that any civil case involving intellectual property can only be filed in the Federal High Court, and no other court is permitted by law to hear such cases. This provision is likewise quite similar to Section 7 of the Federal High Court Act.
In addition, under section 251 (3) of the CFRN, the Federal High Court has and exercises jurisdiction and powers over criminal causes and things over which subsection (1) of section 251 confers authority. The Federal High Court’s criminal jurisdiction has been recognized as not being exclusive to the Federal High Court. This is because the phrase “exclusive” or “to the exclusion of any other court,” as used in subsection 1 of section 251, was not used in this section. As a result, since the Constitution is silent on its exclusivity, both the Federal and State High Courts are believed to have concurrent jurisdiction. What isn’t expressly prohibited is assumed to be permitted.
If the Constitution’s clauses are read in isolation, it can be inferred that any IP dispute bordering on criminal infringement will be heard by other courts besides the Federal High Court. This isn’t the case in Nigeria, though. All IP legislation expressly granted the Federal High Court authority over their subject matter.
The Federal High Court shall have exclusive jurisdiction for the trial of offences or disputes under this Act, according to Section 46 of the Copyright Act (CA). Section 67 of the Trademarks Act in interpreting “court” as used under the Act states that ‘court’ means the Federal High Court”.
The use of the word “means” is restrictive and admits of no other court or further inclusion. Similarly, section 32 of the Nigerian Patents and Designs Act defines court to mean the Federal High Court. As a result of these provisions, it is safe to assume that only the Federal High Court has jurisdiction to hear and decide cases and matters connected to IP in Nigeria, whether criminal or civil.
Copyright Act
The Nigerian Copyright Commission is the regulatory organization that oversees copyright registration in Nigeria, and the Copyright Act LFN 2004 is the primary statute that governs and protects copyrights in Nigeria (NCC). In Nigeria, the Copyright Act (the Act) governs the protection, transfer, infringement, and remedies for copyright infringement.
The Act is divided into 54 sections; therefore it’s best to start with a high-level overview. It’s important to note that not all works can be protected by copyright. The following works are listed in Section 1 of the Act as being eligible for Copyright;
- Literary works;
- Musical works;
- Artistic works;
- Cinematograph films;
- Sound recordings and;
- Broadcast.
The above-listed works will not be eligible to be copyrighted except the following occurs;
- 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;
- At the time the work was done, it was intended by the author to be used as a model or pattern to be multiplied by an industrial process.
Furthermore, work will not be eligible for copyright protection if the creation of the work or the performance of any act related to the work resulted in a copyright infringement in another work.
Copyright can be granted under Section 2 of the Act to any work that is eligible for Copyright and whose creator, or in the case of joint authorship, either of the authors, is a qualified person, that is, an individual who is domiciled in Nigeria or a company formed under Nigerian law.
Copyright in works, as defined in Section 6 of the Act, is the exclusive right to control and authorize the doing of any of the following activities in Nigeria, in the case of a literary or musical work;
- Reproduce the work in any material form;
- Publish the work;
- Perform the work in public;
- Produce, reproduce, perform or publish any translation of the work;
- Make any cinematograph film or a record in respect of the work;
- Distribute to the general public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan, or similar arrangement;
- Broadcast or communicate the work to the public by a loudspeaker or any other similar device;
- Make any adaptation of the work;
- Do about a translation or an adaptation of the work.
The doing of any of the acts mentioned above shall be in respect of a whole or a substantial part of the work either in its original form or in any way recognizably derived from the original.
The assignment and licensing of copyright in Nigeria is regulated by Section 11 of the Act. It specifies that Copyright is transferable property that can be passed down through the generations or by operation of law.
The assignment will be confined to only parts of the actions that the Copyright owner has exclusive control over, or to a specific country or geographical area for the duration of the Copyright. For Copyright assignment and exclusive license to undertake an act controlled by Copyright to be effective, it must be in writing.
An assignment or license made by one copyright owner has the same effect as if it were also granted by his co-owner, and fees earned by grantees are distributed evenly among all co-owners, subject to any arrangement between them.
By Section 11(6) of the Act, co-owners of copyrights are persons who have a joint interest in the whole or any part of Copyright or if they have interest in the various copyrights in composite production, that is to say, a production consisting of two or more works.
Section 15 of the Act provides for the infringement of Copyright in Nigeria. Copyright is infringed by any person who, without the license or authorization 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.
Section 16 of the Act provides that an action for infringement of Copyright shall be actionable at the suit of the owner, assignee, or an exclusive licensee of Copyright in the Federal High Court exercising jurisdiction in the place where the infringement occurred. In action for infringement, all reliefs by way of damages, injunctions, accounts, or otherwise shall be available to the plaintiff.
If an infringement of Copyright is proven or admitted in a Copyright action, but the defendant was unaware and had no reasonable grounds for suspecting that Copyright existed in the work to which the action relates at the time of the infringement, the plaintiff will not be entitled to any damages against the defendant for the infringement, but will be entitled to an account of profits for the infringement.
Finally, a copyright is a limited-time legal right provided to a creative work’s author to use and distribute the work as he sees fit. Although every author is usually protected for all works created, whether registered or not, registration establishes ownership certainty in the event of a disagreement over a similar work and makes it easier for writers to defend their works against future infringement.
Read also: Queensland University Law International Scholarships
Read also: History of Intellectual Property Law in Nigeria
