A CRITICAL APPRAISAL OF THE LEGAL REGIME ON COPYIRGHT PROTECTION IN NIGERIA; EFFICIENCY AND ENFORCEMENT

PROJECT TOPIC- A CRITICAL APPRAISAL OF THE LEGAL REGIME ON COPYIRGHT PROTECTION IN NIGERIA; EFFICIENCY AND ENFORCEMENT

ABSTRACT

Copyright law is the branch of intellectual property that deals with the protection of the exclusive legal rights conferred on creators of original works to reproduce or authorize the reproduction of their artistic, dramatic, literary or musical works. The concept came about with the invention of printing press and the increasing need to read, since literature was one of the very first forms of entertainment and self expression in 18th century Great Britain. It is that law that protects from the annexation by others of the fruits of a person’s work. This protection is of great value to playwrights, authors, artists, musicians, publishers, photographers, choreographers, architects, broadcaster, computer programmers and every other creator of copyrightable works. In Nigeria there is a dire need to protect this select group of the society so as to further improve the culture of creativity and promote the economy. This has never been more evident than with the incessant cases of book piracy, emergence of new computer technologies and the internet. However, despite the existence of various laws protecting copyright in Nigeria, there still occur incidences of bootlegging and other forms of copyright infringements all over the country. This raises the question, whether the laws on ground are adequate and effectively enforceable enough to mitigate the menace. It is an established fact that as long as a law is not doing what it ought to do then it is not adequate. It is also established that a law might be adequate in its provisions but not in the enforcement of same. This paper discusses the legal regime of copyright law in Nigeria, analyzing its efficacy and effective enforceability. It also raises emerging issues affecting, or militating against the protection conferred by copyright law in the Nigerian society with respect to technology, corruption, internet etc, and proffers solutions to mitigate the conundrum. The doctrinal methodology was adopted in this research, of which includes the use of statutes, books, internet, articles, etc. It was observed that the Act is insufficient in its penal provisions but however contains provisions affording protection to copyright works. Consequently, the unemployment situation festers the growth of piracy. It is therefore recommended that the penal provisions be amended, and the commission established under the Act to enforce its provisions should enhance its efforts in fighting copyright infringement by creating a more effective internal mechanism that investigates and monitors activities of copyright inspectors, and adequately train its employees on the intricacies of the Information and Communication Technology. The government of Nigeria should also ensure that the issue of unemployment is dealt with in order to assuage menace of copyright infringement in the country.

Chapter one

 General introduction

1.1 Background of the Study

Instances of legal intervention in order to punish one person for copying the literary or aesthetic output of another were known even before the concept of copyright took shape; indeed, there is a fair amount of literature on the subject.  Copyright simply refers to the legal term that protects the rights of creators of literary, artistic and musical works. Its protection generally begins to run from the moment a work is created in a fixed and tangible form of expression, and immediately becomes the property of the author(s) who created it, or of those deriving their rights through the author.

According to Oxford Dictionary of Law copyright is the exclusive right to reproduce or authorize others to reproduce artistic, dramatic, literary, or musical work. This right covers various areas of interests ranging from books, music (sound recording), films, architectural plans, sculpture, painting, maps, technical drawings, computer programs, choreographic works, sermons, lithographs, woodcuts, motion picture, etc.

Copyright law is the principle means of protecting authorship of works. Under the Nigerian Copyright Act it is defined as “copyright under the Act” simpliciter. However sections 6,7 and 8 of the same Act explains the nature of copyright thus, (subject to the second schedule of the act) to constitute the exclusive right to control the doing in Nigeria of the reproduction; publishing; performance in public; distribution, broadcast or communication; adaption; copy of any literary works, musical works, artistic works, cinematograph film, sound recordings etc.

Generally copyright includes the right to perform certain exclusive acts upon ones work and at the same time restricting all others from such exploitation. Its primary function being to protect from annexation the fruits of a person’s work – which is of immense importance to authors, playwrights, stage and all kinds of public performers; to musicians and composers of music; to architects, designers, lawyers, doctors, pharmacists; to editors of law reports, lecturers, professors and institutions of higher learning; to broadcasters; to makers of cinematograph films and photographs and ; finally to producers of computer systems, laptops and their numerous softwares.

Basically it encompasses various areas of creative works which by law have the required features to be characterized as such. Hence the need to protect this creativity from exploitation by unscrupulous elements that prefer to gain from the labour of others, which on the long run will lead to a drought in novel creations in any given society. Copyright can be criminal or civil with respect to liability, in a case of infringement of it.

The right holder can initiate legal proceeding against a perpetrator by injunction, specific performance, Anton Pillar order, damages etc, when civil; and by the state through the attorney general, police or the copyright inspector under the Nigeria copyright council. Both proceedings could be taken up respectively or simultaneously.

It is pertinent to note that the term ‘copyright’ should not be mistaken to protect the right of physical ownership of an item. The ownership of a physical object protected under copyright may allow for reselling and disposing it but definitely not the reproduction of the material, public display or performance of it, adaptation of the work or an infringement of any other right reserved for the right holder.

The duration of copyright especially for authors run through their life span plus 70 years running from the end of the year in which he dies. Also the Copyright Act provides that in respect of literary, musical or artistic works, other than photographs, copyright on these works shall expire 70 years after the end of the year in which the author dies. Similar provision was made for special cases, for instance when there is an anonymous or pseudonymous publication, it will be 70 years counting from when the work was first published.

It is pertinent to clarify that works that expresses an idea may be protected but not the ideas behind it. Hence individuals outside the right holder can make further creations or publications on the ideas of the subject already taken by the right holder as long as they do not copy this work verbatim, or in any obvious manner. In other words, for example, your idea in a book would not itself be protected, but the actual content of the book, or your manner of arranging words, would be.

This means that someone else is still entitled to write their own book around the same idea provided they do not directly copy or adopt yours to do so. Consequently the need for effective legal framework for the protection and enforcement of copyright in Nigeria cannot be over emphasized. This is because for every effort made by man on earth, for every labour there should be allowed, its benefits to be enjoyed by him who has made such effort or who has so laboured.

If not, there will be serious discouragement amongst creative minds to create, since they do not gain recognition or monetary value for such work done. Essentially there is need to recognize a person for benefits of work done in order to encourage more work, not only from him, but from other intending persons. Even the Holy Bible says in various verses that one shall enjoy the fruits of his labour, and shall not labour in vain. Hence, like natural law, the concept is universal.

Copyright is a body of a much larger concept known as Intellectual Property, which concept virtually connotes the ownership of a particular intangible thing or group of things which is created through one’s intuition. Intellectual property on its own is broadly the legal right which results from the intellectual activity in industrial, scientific, literary and artistic fields. Hence qualifying copyright law as a property right.

And property rights are protected by the constitution of the federal republic of Nigeria, and other various laws like the Copyright Act, the Trade Mark Act, the Patents and Designs Act etc. Also The American Constitution; The American Declaration of Independence 1776; The French Declaration Rights of Man and Citizens 1789; The Universal Declaration of universal; The Berne Convention 1886; The Universal Copyright Convention 1955; Rome Convention; Trade Related aspect of intellectual Property (TRIPS); and The World intellectual Property organization (WIPO) Copyright Treaty, all in one way or the other, particularly or generally, protect property rights and in extension the Intellectual Property right of Copyright.

In other words, the need for the development of a comprehensive legal framework for the efficient protection and enforcement of copyright, dates back to antiquity and is envisaged by the above copious streams of legal elements protecting this right. However, despite the existence of these laws, treaties, and conventions, it is generally believed that authors and their likes are not adequately protected from persons who unlawfully deprive them of the benefits of their works, especially in Nigeria.

The implication being that there is an urgent need for a review of the existing legal framework in order to achieve more efficiency in the Nigerian legal system. An in-depth study the legal regime on Copyright in Nigeria currently will prove that there is still room for improvement even given its impressive transformative history which will later be discussed in this paper. This study therefore adopts an analytical approach to determine the adequacy/efficiency or otherwise of the existing laws, institutional framework, administrative framework and other measures for the enforcement of copyright law in Nigeria.

The study also elaborates on other rights counterpart to copyright under intellectual property, and eligible works under copyright. Finally, the study makes recommendation for a way forward for improving the legislative framework for the efficiency and enforcement of copyright laws in Nigeria.

PROJECT TOPIC- A CRITICAL APPRAISAL OF THE LEGAL REGIME ON COPYIRGHT PROTECTION IN NIGERIA; EFFICIENCY AND ENFORCEMENT

1.2 Statement of the Problem

As stated earlier, in the background of study of this work, it cannot be overemphasized the essence of the law of copyright in a country such as Nigeria, where there is piracy in almost in ramifications, leading to loss of income to film producers, authors, musical, artists and other creative thinkers. There is a dire need for protection of this select group of persons so as not to allow for a dearth in this very relevant sector.

The Nigerian society is fraught with these challenges, and more, regardless of the fact that there are provisions made for its prevention in several laws like the Copyright Act. Perhaps, it is a case of lack of awareness and enlightenment on the subject of intellectual property’s copyright; or judicial bureaucracy and/or delay; or complexity of the internet; or deficiency from legal practitioners on this field; or corruption in Nigeria.

In this case, it is a matter of effective enlightenment and enforcement of copyright law in Nigeria – and this brings to the fore, the inevitable importance of the Nigerian Copyright Commission, the Police, the Nigerian Custom Service and even the National Orientation Agencies, and other enforcement agencies in the advancement of this course. In other words, piracy, and other copyright violations usually witnessed popularly in Nigeria is leading to aridity of creative thinking, inventions and participation, because there are persons whose job it is to devalue the benefits accruing to the original creators of protected works, by marketing them at an ludicrously low price, far below the worth of said works.

The director general of the Nigerian Copyright Commission, in his message on the commission’s website says that- “Creativity is the bedrock of every civilization and the truth of this assertion cannot be more obvious than in the rapid change that has been brought about in the wake of internet and the digital revolution”. The aforementioned statement also makes obvious, the objectivity of the internet to effective copyright protection. Consequently, there is still need to make greater effort in all spheres, to curb the menace eating deep into the fabric of creativity in Nigeria, through a more efficient law on the area and adequate enforcement to go with it.

1.3 Research Questions

Flowing from the recognition of some of the problems distressing the issue of copyright in Nigeria, this study hopes to address the following questions, in an attempt to proffer plausible solutions to mitigate the deficiency in the system. They are as listed below;

  1. The legal framework – whether the Copyright Act, Cap. C28 laws of the federation 2010 and other relevant laws to this effect have been sufficient, apt, and apposite to the efficient enforcement of copyright laws in Nigeria.
  2. Copyright enforcement agencies – whether the agencies responsible for the adequate enforcement in Nigeria is living up to its mandate. Agencies like the Nigerian Copyright Commission, the Nigerian Police Force and customs.
  3. Remedies and sanctions – whether the remedies and sanctions , civil and criminal, are adequate enough to address the issue of copyright infringement to its logical conclusion/resolution, with respect to redemption of the right holder and consequent punitive steps against the offender in order to forestall further infringement.
  4. International laws – the effect of international laws, conventions, treaties, protocols, accords, collective agreements, conference etc, on municipal enforcement of copyright law in Nigeria.
  5. Judicial function – function of the courts in this respect, and in which court does copyright jurisdiction lie.
  6. What is the way forward for the efficient enforcement of copyright law in Nigeria.

1.4 Objectives of the Study

The objective of this study is to critically appraise the legal regime on copyright protection in Nigeria; its efficiency and enforcement. It is for this purpose that the functionality, practicability and enforceability of the legal framework protecting copyright infringement in Nigeria must be examined.

Secondly, the influence of the international community in the enforcement and efficiency of copyright law in the Nigerian municipality taking into cognizance the provision of section 12 of the constitution[18] and other relevant elements to this effect. Thirdly, an appraisal of the adequacy of the remedies and sanctions available to the mitigation of violation of copyright law. Fourthly, the function of the requisite agencies in charge of enforcement and administration of copyright law. Fifthly, the function of the courts to address copyright law adequately. And finally, the resolution of all of the above through the identification of the problems, hindrances and difficulties encountered in the protection of copyright in Nigeria; coupled with making a case for giving more attention to the wanton copyright infringements in Nigeria.

1.5 Scope of the Study

There are several branches of the law of intellectual property of which copyright is one of. Actually intellectual property is traditionally divided into two branches, “copyright and industrial property”. The essence of this study therefore is to single out copyright as an aspect of intellectual property, and make a critical analysis of it under the Nigerian legal system. The analysis will be with respect to its effects, functions, practicability, enforcement, administration, limitations, conundrums, and eventually the proposal of a panacea to any issue arising from copyright law. In other words, it is the intention of this work to make proper analysis of copyright law in Nigeria, and criticize the agencies responsible for enforcement and protection, while discussing its problems and prospects.

1.6 Significance of the Study

As earlier stated, it cannot be overemphasized the relevance of an effective copyright law in a society such as Nigeria. Generally, the study of any concept allows for the discovery of an even wider range of knowledge concerning that area, since new ideas are learned and held comparatively against each other for better understanding and practical learning. Therefore, it is the intention of this study to help in the propagation of essential knowledge on the protection of copyright. It is aimed at proffering a proper and adequate solution to the problem popularly witnessed in the enforcement of copyright laws in Nigeria; and to examine further the efficiency of the laws, amongst others. All of which will enable the right holder(copyright owner) to be more aware of his right with respect to practical protection of his copyright privileges, especially when infringed upon.

To the government, both federal and state , the study shall be found to be a useful guide in policy formulation for a more effective and product-oriented enforcement of copyright law in Nigeria.

To researchers and students, it shall serve as a useful guide and reference point for the evaluation of the legal regime of copyright in Nigeria, as this is quite a novel area of study in Nigerian legal education system. In addition is shall be instrumental in the preparation of lecture papers and other notes on copyright law in Nigeria.

The study will also help the Nigerian public/citizens to understand the rudiments and utility of a functional copyright legal system.

In general, the study is meant to force the hands of stakeholders to make for proper and effective procedures for the efficient workability and increased believe in the law of copyright among the Nigerian populace.

1.7 Limitations of the Study

Every noble cause is usually fraught with challenges. That is the nature of things. And if there are no challenges, it may probably not be worth a trial. As a result, it is incidental to say that the writer faced a lot of challenges in the course of writing this study. They are as listed below;

  1. Time Constraints- Given the very nature of the academic system in Nigeria, a typical Nigerian student always finds it hard to joggle incessant necessary schedule of lectures and other class activities, which may run all through the day, with the research and compilation of a research work such as this. It is safe to say that I encountered this same problem in the compilation of this work.
  2. Finance- Proper research requires proper materials. And materials do not fall from the sky, they are bought with money. Given the current economic realities in Nigeria, a typical Nigeria student such as myself found it quite difficult to acquire all desirable materials that could lead to an impeccable research product. Nevertheless, my faculty library was adequate enough to satisfy my needs.
  3. Scarcity of Materials- intellectual property law and especially the law of copyright is still novel in the minds of Nigerians. Not all legal practitioners in Nigeria are fully aware of its intricacies and legal practice. Hence there is paucity in local copyright texts and materials. That notwithstanding, efforts was made to compile this work, adequately.

1.8 Research Methodology

In this long essay, the doctrinal methodology of research will be adopted. Copyright law and its protection in Nigeria is mainly regulated by statutes. Hence, in writing this work, much reliance will be placed on primary sources of data, i.e. statutes, subsidiary instruments and judicial authorities.

Also in this jet age of information technology (IT), we cannot but exploit the opportunities presented by the internet in addressing the matter at hand, with due regard to articles, manuscripts, and other resource materials online.

PROJECT TOPIC- A CRITICAL APPRAISAL OF THE LEGAL REGIME ON COPYIRGHT PROTECTION IN NIGERIA; EFFICIENCY AND ENFORCEMENT

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