THE CONCEPT OF

COPYRIGHT INFRINGEMENT AND REMEDIES AVAILABLE

Lawyer Khalid

By: Khalid Abdulkareem

Copright

Introduction

Copyright as one of the branches of intellectual property is protected under the Copyright Act, 1988[1]. The protection donated to Copyright covers a wide range of works, such as; Literary, musical and artistic works, cinematograph films, sound recordings and broadcasts. In recent times, there has been a surge in the cases of copyright infringement; this is arguably, due to rapid advancement in technology which has practically made it possible to copy works of another within a short period without even compromising the quality of the original work. The internet is in fact one of the largest threats the copyright law has faced since its inception.

Digital piracy, which involves the illegal and unauthorized obtaining and sharing of copyrighted works, is becoming increasingly aggressive and growing as a severe global problem. The main reason for this, is the difficulty to detect the perpetrators piracy since it is online. Although, the Internet Service Providers (ISP) can be indirectly liable for the online copyrights infringements, the measures to minimize same have proven to be challenging and daunting.

 

WHAT IS COPYRIGHT

Copyright has been defined by Black’s Law Dictionary, as a right granted to the author or originator of certain literary or artistic productions, whereby the creator is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the literary, musical or artistic works and publishing or selling them to the public.

The Copyright Act Chapter C28 Laws of the Federation of Nigeria 2004 (Copyright Act), does not define the word “works”. However, Section 1 (1) of the Copyright Act provides that:

Subject to this section, the following shall be eligible for copyright:

  • Literary works,
  • Musical works,
  • Artistic works,
  • Cinematograph films,
  • Sound recordings and
  • Broadcasts

Copyright has also been defined by the World Intellectual Property Organization (WIPO) as a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.

ARE ALL THESE WORKS ELIGIBLE FOR COPYRIGHT?

The question to be asked is whether the protection granted to works under section 1(1) is wide enough to cover all kinds of works that come under the canopy of that section. The answer to this is in the negative. Section 1(2) of the Copyright Act provides that: A literary, musical or artistic work shall not be eligible for copyright 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 or otherwise communicated either directly or with the aid of any machine or device.

This, however suggests that before any work can be eligible for protection, sufficient effort must have been expended on the work to give it original character and the work must be fixed in a definite medium of expression. Originality within this context does not connote creativity or novelty. It simply denotes that the work was not copied or plagiarized. Therefore it is pertinent to note that copyright does not protect ideas which have not been reduced into a definite medium, and copyright is acquired by expending skills on a work and not by invention. From this, the conditions a work must fulfill before it becomes eligible for copyright protection are three, thus;

  • Originality
  • Fixation
  • Definite medium of expression

OWNERSHIP OF COPYRIGHT WORKS?

Section 10(1) of Copyright Act provides that Copyright in a work is generally owned and vested in the author i.e. the person who created the work. However, this is a general rule. There are certain exceptions to this rule. They are:

  1. Where a work is created by an employee in the course of his or her employment, copyright in such work is vested on the employer.
  2. Where a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication in the aforementioned medium, the said proprietor, shall in the absence of any agreement to the contrary, be the first owner in so far as it relates to the to the publication of the work in any of the medium.
  3. Where the owner has assigned exclusive ownership of the work.

RIGHTS PROTECTED BY COPYRIGHT

There exist two basic rights that copyright seeks to protect, for the exclusive preservation of the works borne by the mental exertion of the individual (author). These are:

  • ECONOMIC RIGHTS – they permit the owner to obtain financial benefits from allowing others to use his works. The rights can be transferred or assigned to other owners mostly for a specified sum of money or royalties determined by the sole usage for which the work will be put to.

 

  • MORAL RIGHTS – these rights also known as right of authorship and respect, grants the owner of right power to object to the work being distorted or used in contexts that are prejudicial to the honor and literary and artistic reputation of the author.

DOES COPYRIGHT REQUIRES REGISTRATION?

Copyright is inherent in a work. A work that is eligible for copyright does not need to be registered before it enjoys legal protection provided it is original and fixed in a definite medium.

However, for some extra layer of protection, the owner of copyright can register the work with the National Copyright Commission (NCC) and obtain certificate. Section 34 (2 (3) of the Copyright Act provides that National Copyright Commission is required to maintain an effective data bank on authors and their works.

In the American case of Fourth Estate Pub. Benefit Corp. v. Wall-Street.com[1], the U.S. Supreme Court resolved a long-standing circuit court split by answering the question of whether copyright registration occurs at the time a copyright owner files an application to register the copyright or when the Register of Copyrights grants the copyright (or refuses to register a copyright).

In a unanimous opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court ruled that:

 “Registration of a copyright claim has been made” within the meaning of the Copyright Act when the Copyright Office has acted upon a registration by either registering a copyright after examining a properly filed application or refusing to register it.

This same position reverberates across all common law jurisdictions with domestic legislations on copyright as well as those who are signatories to many treaties on intellectual property law, making allowance for the works of an author to assume automatic eligibility for protection without registration the instance it comes into existence, provided of course, the requisite conditions are present in the work.

BENEFITS OF REGISTERING COPYRIGHT WORK WITH NATIONAL COPYRIGHT COMMISSION

According to the National Copyright Commission, the following are the advantages of registering copyright work with the Commission:

  1. The records compiled by the NCC serves as an independent source for vetting the authenticity of data relating to a copyrighted work or its ownership to the general public;
  2. The database of the NCC provides useful and accessible information to prospective licensees;
  3. The acknowledgement certificate issued by the NCC to the originator of the work serves as prima facie evidence to establish creation and ownership of a work;
  4. The records contained in the notification database also helps in the collation of national statistics on creativity and culture;

The NCC ensures that original copies of works lodged are well preserved in its depository. The Copyright Act mandates the NCC to maintain a database for all works lodged

IS A COPYRIGHT WORK PROTECTED GLOBALLY?

Copyright work is territorial in nature and as such, enjoins global protection. By virtue of being signatories to some international copyright treaties and Conventions, e.g. Berne Convention, the WIPO Copyright Treaty, the Paris Convention and the Trade Related Aspects of Intellectual Property (TRIPS) convention, works of Nigerian citizens enjoy protection in territories of member countries of such treaties to which Nigeria is a party.

DURATION OF COPYRIGHT

Copyright in a work does not last forever. The first schedule to copyright Act provides for the duration of copyright protection in a work.

  • For literary, musical, and artistic work other than photographs; it is seventy years after the end of the year in which the author dies and in the case of a government or a body corporate, seventy years after the end of the year in which the work was first published.
  • For Cinematograph films and photograph; fifty years after the end of the year in which the work was first published.
  • For sound recordings, fifty years after the end of the year in which the recording was first published, and

For broadcasts, fifty years after the end of the year in which the broadcast first took place.

WHAT HAPPENS AFTER EXPIRATION OF COPYRIGHT IN A WORK?

After the expiration of copyright protection in a work, the work goes to the public domain. The term “public domain’’ refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own such work.

HOW DOES COPYRIGHT WORKS ENTER THE PUBLIC DOMAIN?

  1. After the duration of the copyright protection in the work has expired.
  2. The work is not fixed in a tangible/definite medium of expression.
  3. The copyright owner deliberately places it in the public domain.
  4. The work is bereft of originality.

COPYRIGHT INFRINGEMENT

Copyright infringement is the use or reproduction of copyright protected works without the permission, license or authorization of the owner of such work. Section 15(1) of the Copyright Act provides that, Copyright is infringed by any person who without the license or authorization of the owner of the copyright:

  1. does or cause any other person to do an act, the doing of which is controlled by copyright;
  2. imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph (a) of this subsection;
  3. exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;
  4. distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a) of this subsection.

 

What can be gleaned from the above cited provision is that, it is only the owner of copyright that can do or authorized the doing of which is controlled by copyright. It must be noted that the owner of copyright work can assign the rights in such work. Assignment of copyright can either be exclusive or non-exclusive. Where the assignment is exclusive, section 11(3) requires that such assignment must be in writing to be valid. However, where the license is non-exclusive, the assignment may be written or oral, or may be inferred from conduct.

ACTION FOR INFRINGEMENT

Action for infringement of copyright works is actionable at the suit of the owner, assignee or an exclusive licensee of the copyright as the case maybe, in the Federal High Court by virtue of Section 241 of the Nigerian Constitution exercising jurisdiction where the infringement occurred. What this means is that, it is only the Federal High court of Nigeria that enjoys exclusive jurisdiction to entertain matters bordering on Intellectual Property generally.

REMEDIES FOR INFRINGEMENT

The Owners of Copyright work, whose rights have been infringed, are not left at the mercy of the infringers. There are various remedies available to Owners of Copyright works.  Owners of works whose copyrights have been infringed upon may write a letter of demand that, the person infringing their copyrights stop the infringement, deliver all original and copies of the infringed work to them and pay compensation for use of their work.

They may also request that the person infringing their work enter into an agreement with them for use of their work in future. If the person infringing the work ignores the Owner or fails to adequately compensate him/her for use of his/her work, the Owner may commence a civil action at the Federal High Court where the infringement occurred to seek damages for infringement of copyrights and injunction restraining the person from continuing any act of infringement, damages or an account of profits, delivery up, seizure, or destruction of infringing copies. 

In addition to the foregoing, section 20 of the Copyright Act provides for criminal liability of any person who makes or causes to be made for sale, hire, or for the purpose of trade or business any infringing copy of a work in which copyright subsist or imports or causes to be imported into Nigeria a copy of any work which if had been made in Nigeria would be an infringing copy or make or causes to be made, or has in his possession any plate, master tape, machine, equipment or contrivance for the purpose of making any infringing copy of any such. The punishment upon conviction is 5 years of imprisonment or fine or to both such fine and imprisonment.

CONCLUSION

Copyright infringement is constantly increasing and there is need for proactive measures to stem the tide and arrest the situation. Although there is a regulation in place to control the use of copyright works, however due to the increasing threat to Copyright works, there is need for stiffer measures to be put in place. Equally, there is need for Nigeria Copyright Commission and other stakeholders in the industry to constantly engage and sensitize the public on the dangers of infringing on copyright works.  

THE CONCEPT OF COPYRIGHT INFRINGEMENT AND REMEDIES AVAILABLE was last modified: July 1st, 2020 by Omaplex