A Copyright is infringed where creative works of a person are reproduced, published, performed in public recorded, distributed, broadcasted, copied or adapted by another person without the licence or authorization of the owner of the copyright.
The agency that addresses the issue of copyright is the Nigerian Copyright Commission (NCC).
Like any other proprietary right, enforcement of copyrights is of utmost importance. The principal law governing copyrights in Nigeria is the Copyright Act 1998 (as amended), Cap C28, Laws of Federation of Nigeria (LFN), 2004 (the Act). The legal remedies available to the owner of an infringed copyright shall be briefly discussed in this write-up.
Meanwhile, the mere fact that a person created work does not automatically qualify the work to benefit from the protection of the Act unless;
- sufficient effort has been expended on making the work to give it an original character;
- the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device
An artistic work would also not be eligible for copyright if, at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.
Copyright, unlike other intellectual property like patents and trademarks, does not need to be published or registered before an author can enjoy copyright protection. Once an author creates work and it satisfies the requirements listed above, such work would enjoy the legal protection under the Copyrights Acts.
However, to create awareness and notification of the existence of such work to the general public, it is advisable to deposit a copy of the work with the Nigerian Copyright Commission and obtain a certificate. The NCC maintains an effective database where all registered works and their authors are computed and stored.
The creator of a copyrighted work, usually referred to as the “author” of the work owns the copyright in the work in the first instance. However, the author is at liberty to transfer his rights to a third party. In such a case, the person who has obtained the right by transfer or other legal means becomes the owner of the copyright.
REMEDIES FOR INFRINGEMENT
Firstly, it is pertinent to note that the court vested with the jurisdiction to hear copyrights infringement disputes is the Federal High Court of Nigeria.
There are both civil remedies and criminal liabilities for copyrights infringements in Nigeria.
The civil remedies available to a person whose copyright has been infringed upon includes;
1. Conversion rights; The Copyrights Acts in section 16 provides that all infringing copies of the works copyright subsists, or of any substantial part thereof, shall be deemed to be the property of the author or owner. Therefore, the owner may seek the order of the court for the conversion of the infringed copyright materials.
2. Damages (i.e. monetary compensation): This could either be Special or General Damages. In an action for infringement of copyright, the author needs not to prove actual damage as damages are at large i.e. an award that has no exact measurement, as it is essentially compensation for non-economic or non-pecuniary loss. It could also consist of exemplary damages in certain cases and can inter alia be compensation for pain and suffering, loss of reputation or injured feelings. A mere infringement of copyright gives rise to damages to which the claimant is entitled to.
3. Injunctions (interim or interlocutory) restraining the person from further infringing on the copyright. Types of injunctions obtainable in court are;
- An Interim injunction- although lasts for a short time, is usually granted only in cases of urgency requiring immediate relief. It is made pending the happening of an event such as the hearing and determination of a motion on notice or until a named date.
- An interlocutory injunction- which is usually granted pending the final determination of a case on the merits. It is very effective in copyright infringement, as it ensures that the subject matter maintains the status quo pending the determination of the substantive suit.
- Perpetual Injunction- otherwise known as the permanent injunction is a final relief as it ensures that the infringer never interferes or infringes with the subject matter again.
4. Inspection and seizure order: (similar to Anton pillar Injunction) this remedy permits the Copyright Owner to enter into the premises of the infringer to inspect the infringing items or works. It is a Court Order usually by an application made by the Copyright Owner to the court by way of Motion Ex-parte. The essence of this order is the discovery and preservation of evidence where the infringer is likely to remove or destroy such evidence if notified, which would be detrimental to the applicant’s case.
5. Account for profit- This mandating the infringer to take account of the profits made from such infringement and to refund the same to the owner of the work. This is usually resorted to in cases where the infringer at the time of infringement was honestly not aware that such copyright existed.
Copyright infringement also carries criminal liability with penalties of fine and terms of imprisonment. The NCC are usually the prosecutors in such action. However, the fact a criminal action has been instituted against the infringer does not deprive the copyright owner of his right to institute a civil action against the infringer.
However an offender would not be liable if he can prove to the satisfaction of the court that at the time he was committing the offence, he did not know and had no reason to believe any such copy was an infringing copy of a copyrighted work or that the plate/master tape or equipment was not for the purpose of making infringing copies. Copyright Act 1988, s.20.
In conclusion, under Nigerian law, copyright infringement exposes the party in breach to damages. Music copyright infringement or intellectual property abuse, in general, is not a Nigerian phenomenon; it is a crime that is frowned at all over the world. Copyright infringement dispute may also be settled out of court through any form of dispute resolutions consented to by both parties.