CHAPTER ONE 1.0 INTRODUCTION 1.1 Background to the Study

1

CHAPTER ONE

1.0 INTRODUCTION

1.1 Background to the Study

Copyright is the monopoly conferred by law or an institution to do or restrain others from

doing certain acts with respect to the author‟s original literary, musical or artistic work. This

is because nothing can be called a man‟s property than the fruit of his brain.

1

Copyright

therefore creates a set of exclusive right in the holder who decides whether his or her work

may be copied or transferred to an audience within permissible ranges of time. Thus, there is

a basic correlation between work and wages. Hence, a person who has laboured or worked to

produce copyrightable material ought to have a sole enjoyment of the benefits accruing from

his work. Lord Atkinson concurred with this line of argument when he stated in Macmillan &

Co. v Cooper

2

that the moral basis on which the principle of the protective provisions of

Copyright rests is the eight commandments „Thou shall not steal‟. Thus, the primary purpose

of Copyright is to promote public welfare by the advancement of knowledge with the specific

intent of encouraging the production and distribution of new works for the public. It was held

in Gero v Seven-Up Company

3

that the goal of Copyright protection is to encourage

dissemination of ideas by protecting the embodiment of expression of an idea in a creative

work and reserving the right in it to the creator of the work. It was also held in Oladipo

Yemitan v Daily Times & Gbenga Odusanya

4

that the function of Copyright law is to protect

from annexation by other people, the fruit of another‟s work, labour, skill or taste.

The problem faced by Copyright owners relates solely to the covetousness of deviants in the

human society who enjoy reaping the benefits of intellectual exploits of others at the expense

1

Copinger & Skone James, Law of Copyright, (London:Sweet & Maxwell , 1958)p.2.

2

(1923) 40 T.L.R. p.186 at 187; R Dias, Jurisprudence, ( 5

th

edn, London: Butterworths, 1985) p.296;

D Gardner, Copyright, (London, Butterworths, 1896) p.91.

3

215 USPQ, p.512.

4

(1980) F.H.C.R. p.180; S John, Jurisprudence, (12

th

edn, London, Sweet & Maxwell, 1966) p.901.

2

of Copyright owners. The Universal Declaration of Human Rights provides:

5

1. Everybody has the right freely to participate in the cultural life of

the community, to enjoy the arts and to share in scientific

advancement and its benefits.

2. Everyone has the right to the protection of the moral and material

interest resulting from any scientific, literary or artistic production

of which he is the author.

6

This provision clearly shows that an author‟s work is the personal expression of his thoughts

and his personality which he is entitled to claim respect for; to decide whether, when and how

his work may be reproduced and performed in the public; and also to object to any distortion

or mutilation of the work when it is used.

7

In the same vein, it has been stated that:

The works of the authors of a country are the purveyors of the

country‟s customs and cultural heritage. Apart from impacting

positively on the country‟s image, both inside the country and

abroad, it is also a source of inspiration to stimulate other

subsequent creations.

8

It must be pointed out that even though Copyright Law seeks to protect both the economic

and moral interests of the creators/authors, sometimes, Copyright protection differs from

country to country. For while some countries might give Copyright owners greater rights, it

may not be so in other country.

9

In Nigeria for instance, Copyright is automatic upon the

creation of a work and no formal registration is required by law. This is opposite of what is

obtained in the United State of America where there is need for registration. However, there

is a significant improvement in the protection of Copyright in civilized countries of the world

such as United Kingdom and the United States of America; although, this is not the trend in

the third world countries like Nigeria and India where piracy thrives as a result of

governments‟ insensitivity and indifference towards curbing Copyright infringements; lack of

5

Article 27 Universal Declaration of Human Rights (U.D.H.R.) 1948; J Bouvier, Bouvier Law Dictionary,

(

rd

edn. London: Sweet & Maxwell, 1956) p. 89.

6

Article 27 Universal Declaration of Human Rights (U.D.H.R.) 1948; J Bouvier, Bouvier Law Dictionary,

(

rd

edn. London: Sweet & Maxwell, 1956) p. 89.

7

A Adebambo, Nigerian Copyright System, Principles and Perspectives: Selected Papers (Abuja: Odade

Publishers,2012) p.7.

8

Ibid. p.8

9

D Vaver, „Copyright Law‟ Irwin Law, Toronto, 2006.p.171.

3

awareness of the operations of Copyright laws; lack of effective enforcement procedures;

lack of manpower needed to combat infringement; lack of economic empowerment to fight

infringement on the part of right owners, as well as the proliferation of technological devices

that aid Copyright infringement at supersonic speed.

This research work shall examine the concept of Copyright, Copyright ownership and rights

conferred by Copyright, exceptions to Copyright control and the enforcement mechanisms

put in place in the jurisdictions under consideration to checkmate Copyright infringement vis

a viz access to copyrightable works for the advancement of knowledge and information, with

a view to balance the conflict between the right owners‟ interests and the interests of the

general public.

1.2 Statement of Problem

The whole essence of Copyright is the protection of the rights of authors from

annexation by slavish copiers who derive joy in reaping the fruits of the works of

another. The infringement of Copyright is thriving internationally simply because

Copyright is enforced territorially and there are no mandatory/ compulsory legally

binding Copyright instruments put in place by the United Nations to combat

Copyright violations uniformly in all the States of the world. Some instruments so far

articulated by the United Nations cannot be compulsorily enforced territorially as is

the case with criminal law. This is worsened by the technical innovations of the 20

th

and 21

st

centuries which make it possible for infringers to download, duplicate,

reproduce and pirate works of authors in a twinkle of an eye and make huge profits at

cheaper rates. This works shall thoroughly examine the rights and interests inherent in

Copyright works; the adequacy of the Copyright instruments of the countries under

consideration in relation to enforcement vis a viz access to Copyrightable works for

the advancement of knowledge and information; and also determine whether these

4

legal instruments actually protect copyrighted works in the face of the emergence of

these modern technological devices used by violators to carry out Copyright

infringement. The ways to achieve a holistic enforcement of Copyright through the

balancing of these conflicting interests or right owners and those of the general public

without inhibiting the right of access to copyrightable works shall be suggested.

1.3 Purpose of Research

The purpose of this research work is to analyze the concept of Copyright, the conflicting

interests of authors and the general public, especially as it relates to access to copyrightable

works for the advancement of knowledge to information and knowledge, as well as Copyright

enforcement mechanism in the jurisdictions under consideration. It shall determine whether

or not the enforcement mechanisms put in place to curb infringement of Copyright are best

suited for the Creative Industries in the jurisdictions under consideration, especially in the

face of the emergent technological advancement in the field of Copyright. It shall also

address the following questions:

(i) What are the interests of authors in copyrightable works vis a viz public interest‟s right

of access to works for the advancement of knowledge and information?

(ii) What are the areas of conflict between these interests of authors and those of the general

public?

(iii) How can these conflicting interests be balanced without inhibiting the right of access to

work for the advancement of knowledge and information?

1.4 Scope of the Study

This research work covers the enforcement of Copyright in Nigeria, India, United Kingdom

and United States of America. Thus, the Copyright Acts of Nigeria,

10

England,

11

India

12

and

10

Copyright Act (Cap. C28) Laws of the Federation of Nigeria, 2004, hereinafter referred to as „C.R.A.N.‟

11

Copyrights, .Designs and Patent Act of England, 1988, hereinafter referred to as „C.D.P.A.‟

12

Copyright Act of India, 1957, hereinafter referred to as „C.R.A.I.‟

5

the United States of America

13

and some Copyright related instruments operating in these

jurisdictions; as well as other international Copyright instruments shall be critically

examined.

1.5 Significance of the Study

The significance of this research work lies in the possibility of exploring, identifying and

proffering solutions to the causes of infringement of Copyright against the backdrop of

recurring problems that have ensued from the invention of modern technological devices used

to circumvent anti-piracy measures. This work identifies the various rights and interests

enjoyed by the Copyright owners, as well as the public interest‟s right of access to work for

purposes of advancement of knowledge and information to know whether these

rights/interests conflict. This work shall also examine the various steps so far taken to protect

the rights of creators vis a viz the technological devices used to circumvent Copyright

protective measures and make some recommendations on the ways to balance these

conflicting interests in order to achieve a holistic enforcement of Copyright in Nigeria, India,

United States of America and the United Kingdom.

1.6 Research Methodology

In conducting this research work, empirical and doctrinal research methods, as well as

analytical and comparative approach shall be adopted. Hence, uses of primary source

namely, Constitutions, Laws, Act, Gazettes, Law reports, etc; secondary sources such as law

textbooks; and tertiary sources namely newspapers, journal and textbooks from other fields of

studies shall be made.

1.7 Organizational Layout

This thesis has been divided into six chapters. Chapter one contains the general introduction.

It was stated that Copyright is conferred on authors upon the creation of works so that authors

13

Copyright Act of the United States of America, 1976, hereinafter referred to as „U.S.C.‟

6

will reap the economic benefits accruing from their creation. This will encourage them to

create more works and thereby add to the pool of knowledge. It was stated that technical

innovations of the 20

th

and 21

st

centuries brought about digitization which threw the analogue

enforcement of Copyright off balance. This development necessitated the use of some

technical measures in Copyright enforcement which destroyed the original balance between

the rights enjoyed by Copyright owners and the interest of the public known as vis a viz

access to works. Empirical and doctrinal research methods were employed to examine the

various Copyright instruments of the countries considered to determine the areas of conflicts

between these interests. The relevant terms used in this work were also defined. Similarly,

the relevant literatures existing in the area of Copyright were examined. It was stated that

these literatures failed to consider the various modes of infringement in the 21

st

century vis a

viz Copyright laws. They neither suggested any form of penalty to deter infringers, nor the

ways towards a holistic enforcement of Copyrights.

Chapter two examined the nature of Copyright and historical development of Copyright

starting from the primitive Nigeria till date was also considered. It was stated that Copyright

has been existing in Nigeria from time immemorial, as forms of payment or service were

offered in return for the grant of Copyright. It was stated that current Copyright laws as

practiced in the jurisdictions considered were inherited from their colonial masters, the Great

Britain. The subject matters of Copyright were also discussed in this chapter. It was stated

that for works of literary, musical, artistic, cinematograph films, sound recordings and

broadcasts to be protected, sufficient efforts must have been expended in making them to

give them original character. Such works must also be fixed in any tangible medium of

expression now known or yet to be known from where they can be perceived. It was stated

that other requirements for protection such as deposit and registration are not mandatory in

some of the jurisdictions considered.

7

Chapter three examined the scope of Copyright protection. It was stated that Copyright can

be owned as any other tangible property. As such, the owner of Copyright can assign, license

or bequeath Copyright. It was also stated that the rights enjoyed by Copyright owners include

the exploitative rights of reproduction, publication, performance, communication,

broadcasting, re-broadcasting, distribution, recording, taking of still photographs, making

adaptation of the work, the right to claim authorship of their works, right to privacy in

relation to certain photographs and films, right to share in the proceed of the sale of their

works, right to bequeath, assign or license Copyright, as well as the right to relinquish

Copyright. Copyright infringement was also discussed in this chapter. It was stated that

Copyright infringement can be divided into (a) primary, which is the doing of any of the

exploitative acts reserved to the Copyright owner without the permission of the Copyright

owner; (b)secondary infringement, which is the importation of infringing copies, public

exhibition, distribution or offering for sale, making or being in possession of contrivances;

and (c) criminal infringement which is the making for purposes of business or gain, an

infringing copy of the work, or importing of infringing copies into Nigeria, or the making of

plates, master tapes, machines, equipment or contrivances for purposes of making an

infringing copy of such work. It was also stated that the provisions of the Copyright Acts

relating to infringement adequately address the issue on hand save for the requirement of the

proof of reasonable knowledge, belief, and the defence of innocent infringement in

infringement cases as contained in the Acts; as well as the limitation of time within which to

bring actions for infringement specifically provided for by the U.S. Act. Finally, the use of

the internet in relation to access to information was discussed. It was stated that the advent of

the internet resulted into worldwide dissemination of digital media which are most times

accessed without authority and knowledge of the right owners. It was stated that the technical

enforcement mechanisms employed in relation to digital media in Nigeria inhibit access to

information in that the Nigerian Copyright Act has no room for fair use of digital media.

8

Chapter four examined Copyright protection vis a viz access to information. It was stated that

without prejudice to the rights granted Copyright owners in relation to their works, the law

creates some exceptions to Copyright control for purposes of advancement of knowledge and

information through access to work. The exceptions examined are; fair dealings, use of works

for educational purposes, use of judicial proceedings, compulsory licenses, etc. The limitation

of Copyright terms was also discussed. It was stated that these exceptions contain some

conditions which are not Copyright friendly, such as the requirement of reasonable

knowledge in Copyright infringement cases, as well as the defence of innocent infringement.

It was also stated that the period of time given to Copyright owners to enjoy the economic

benefits accruing from their works is too long to inhibit the public interest of access to work.

On the other hand, the Copyright enforcement mechanisms such as the Nigerian Copyright

Commission, Copyright Inspectors, Copyright Licensing Panels, Custom and Exise, the

Police and Collecting Societies considered were also discussed. Some technical enforcement

mechanisms such as encryption and watermarks were also discussed. It was stated that the

aforementioned legal enforcement mechanisms have not performed optimally as a result of

some statutory hitches inherent in the Nigerian Copyright Act such as the appointment of

members of the Nigerian Copyright Commission, as well as non implementation of the

relevant provisions of the Acts relating to the establishment and the procedure of these

mechanisms. Again, corruption in the system is militating against the performance of these

mechanisms. The impact of Copyright enforcement on access to information was also

discussed. It was stated that the use of technical measures to protect digital works without

room for fair use of such works is militating against the public interest of access to works for

purposes of dissemination of information and knowledge.

9

Chapter five contains the comparative analysis of the enforcement of Copyright and access to

information in England, India and the United States. It was stated the there is a great

imbalance between the rights granted to authors and the public interest‟ right of access to

work for advancement of knowledge and information. This is because the Copyright laws

operating in the jurisdictions considered allow the defence of innocent infringement in

Copyright cases. The enforcement mechanisms operating in England, India and the United

States were thoroughly examined. It was stated that the enforcement mechanisms in Nigerian

are more positioned to achieve a holistic enforcement of Copyright if not for corruption and

other vices inherent in the Nigerian system. Again, Copyright enforcement and the technical

protective measures used in these jurisdictions were considered. It was stated that unlike the

U.S. and Indian Copyright Acts, the English and Nigerian Acts allow the use of technical

protective measures which do not admit of fair use of protected works. It was stated that this

omission amounts to an inhibition of the public interest of access to work for the

development of knowledge and information especially in this digital era. It was also stated

that finding the right balance between the authors‟ rights and the rights of the general public

to access to work will promote creativity.

Chapter six contains conclusions and recommendations of this study. It was stated that the

requirement of reasonable knowledge and belief, as well as the defence of innocent

infringement contained in the Copyright Acts considered foster piracy in these jurisdictions.

It was also stated that the use of technical measures to protect digital media as provided by

the Acts considered without any room for fair use of such protected works militate against

access to information at this time when education and knowledge are digital and internet

based. Some recommendations were made towards the achievement of holistic enforcement

of Copyrights through the balancing the conflicting interests of authors and those of the

general public. These recommendations include the establishment of Copyright Courts

10

nationally, regionally and internationally; the amendment of the Copyright Acts considered to

delete the requirement of the proof of reasonable knowledge, belief, and the defence of

innocent infringement, as well as the inclusion in these Acts of the fair use provisions in

relation to digital media. The creation of Copyright awareness through sensitization, seminars

and introduction of same in the curricula of the secondary and tertiary institutions in Nigeria

was also suggested.

1.8 Definition of Terms

1.8.1 Adaptation

Adaptation is „the modification of a pre-existing work from one genre of work to another and

consists in altering a work within the same genre to make it suitable for different conditions

of exploitation, and may involve altering the composition of the work‟.

14

1.8.2 Author

An author is „the party who actually creates the work, that is, the person who translates the

idea into fixed, tangible expression entitled to Copyright protection‟.

15

1.8.3 Broadcast

Broadcast means „sound or television broadcast by wireless telegraph or wire or both or by

satellite or cable programmes and includes re-broadcast‟.

16

1.8.4 Broadcasting Authority

Broadcasting Authority is defined to mean „any authority established under any law (in

Nigeria or elsewhere) providing broadcasting services for public reception‟.

17

14

C.R.A.N. Section 51 (1).

16

Community for Creative Non-Violence v Reid (490 U.S. 5 p.46 at p.561; 178, USPQR p.129 at p.135 (1973);

S Melamut, „Free Creativity: Understanding the Creative Commons Licenses‟, American

Association of Law Libraries14, No.6. (April,2010), 22.

17

C.R.A.N. Section 51 (1).

11

1.8.5 Cable Programme

Cable programme is defined to mean

„

visual images, sounds or other information sent by

means of a telecommunication system otherwise than by wireless telegraph for reception in

two or more places, whereas for simultaneous reception or at different times, in response to

request by different users; or for presentation to members of the public‟.

18

1.8.6 Collecting Society

Collecting Society means „an association of Copyright owners which has as its principal

objectives the negotiating and granting of licenses, collecting and distributing of royalties in

respect of Copyright work‟.

19

1.8.7 Computer Programme

Computer programme means „a set of statement or instruction to be used directly or indirectly

in a computer in order to bring about a certain result‟.

20

1.8.8 Choreographic work

Choreographic work means „a composition of movements for dancing or any other patterned

succession of gestures mostly created to accompanying music‟.

21

1.8.9 Copy

Copy Means „a production in written form, in the form of a recording or cinematograph film,

or in any other material form, so however that an object shall not be taken to be a copy of

architectural work unless the object is a building or model‟.

22

18

Ibid.

19

L Lessig, „The Vision for the Creative Commons? Where are We and Where are We

Headed? Free Culture‟, in Fitzgerald, B, ed. Open Content Licensing: Cultivating the

Creative Commons, (Sydney: Sydney University Press, 2007) p. 2.

20

C.R.A.N. Section 39 (8).

21

Ibid. Section 51 (1).

22

Ibid.

12

1.8.10 Copyright

Copyright is defined as „the right to copy; specifically, a property right in an original work of

authorship, including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural,

and architectural works; motion pictures and other audiovisual works; and sound recordings,

fixed in any tangible medium of expression, giving the holder the exclusive right to

reproduce, adapt, distribute, perform, and display the work‟.

23

1.8.11 Enforcement

Enforcement is „the act of process or compelling compliance with a law, mandate, command,

decree or agreement‟.

24

1.8.12 License

License means „a lawfully granted license permitting the doing of an act controlled by this

Act‟.

25

1.8.13 Music

Music can be defined as „any conventional and repeatable inscription or record of vocal or

instrumental expertise, which contains the recognizable elements of tone, pitch and

rhythm‟.

26

1.8.14 Performance

Performance is defined to include „any mode of visual or acoustic representation, including

any such representation by the operation of wireless telegraph apparatus, or by the exhibition

of a cinematograph film, or by the use of e record, or by any other means‟.

27

23

B Garner, Black’s Law Dictionary (9

th

edn, United States of America: Thomas Reuters, 2009). p.366;

C Bailey, „Strong Copyright + DRM + Weak Net Neutrality = Digital Distopia?‟ Information

Technology & Libraries 25, No. 3, (Summer 2006) p.11.

24

C Bailey, „Strong Copyright + DRM + Weak Net Neutrality = Digital Distopia?‟ Information

Technology & Libraries 25, No. 3, (Summer 2006) p.11.

25

B Garner, Black’s Law Dictionary Op. Cit. p.608; E Ojukwu, et. al. „Intellectual Property Rights Enforcement

in Nigeria: A Property For Music Industry' US-China Review B. June 2015, Vol. 5. No. 6. P. 374.

26

C.R.A.N. Section 51 (1).

13

1.8.15 Re-broadcast

Re-broadcast means „a simultaneous or subsequent broadcast by one broadcasting authority

of the broadcast of another broadcasting authority‟.

28

1.8.16 Reproduction

Reproduction means „the making of one or more copies of a literary, musical or artistic work,

cinematograph film or sound recording‟.

29

1.8.17 Technology

Technology is defined as „a scientific knowledge used in particular ways in industry, for

example, in designing new machines‟.

30

1.8.18 Work of Joint-Authorship

Work of joint authorship means „work that is produced through the collaboration of two or

more authors which the contribution of each is inseparable from the contribution of the other

author or authors‟.

31

1.9 Review of Relevant Literature

A lot of authors and legal researchers have written on the protection and enforcement of

Copyright in Nigeria, United States of America, India and United Kingdom. Faeji examined

Copyright in the music industry.

32

He considered the exploitative rights conferred on authors

27

Philip & Karet, Whale on Copyright (4

th

edn, London: Sweet & Maxwell, 1993) p.92.

28

Copyright Act, 1956 of England, section 48(1).

29

C.R.A.N. Section 51 (1).

30

Hornby, A, Oxford Advanced Learners Dictionary of Current English (8

th

ed. Oxford: Oxford

University Press 2010) p.1534; A Albanese, „HathiTrust Suspends its Orphan Work Release‟,

Publishers Weekly, Sept, 16, 2011,

http://www.publishersweekly.com/pw/by/topic/digital/copyright/article/48722-hathitrust- suspends-its-

orphan-works-release-htm. accessed 30/08/18.

31

C.R.A.N. Section 51 (1); P Samuelson, „Google Book is Not a Library‟, Huffington Post, October,

13, 2009,http://www.huffingtonpost.com Pamela-samuelson/google-books-is-not-a-lib- b

317518.html. accessed 30/08/18.

32

A Faeji,‟ Copyright and the Music Industry‟ in Asien & Nwauche (ed), A Decade of Copyright Law,

(Nigerian Copyright Commission, Abuja, 2002).

14

of works by the Nigerian Copyright Act and concluded that these laudable provisions are put

in place for the protection of the rights of owners of musical works. He noted that the Nigeria

Copyright Commission met the required regulations; and complied with relevant provisions

of the Nigerian Copyright Act regarding the registration of Collecting Societies in the music

industry. These efforts of the Commission in conjunction with the Collecting Societies

culminated in the use of the hologram stamp on musical works in the Nigerian Market. He

however failed to address the issue of infringement of Copyright in the music industry as

shall be discussed in this work.

James examined the concept, evolution and fair use exception to Copyright.

33

He concluded

that while the Indian Copyright Law is equipped to face a number of new challenges posed

by digital technologies, there is need to include new provisions through amendment in order

to make the Indian Copyright Act more effective to combat 21

st

century infringement. He

however failed to examine the digital technologies used by infringers to illegally access

protected works. He also failed to make any recommendations towards establishing effective

Copyright enforcement mechanisms under the Indian Copyright Law to combat infringement

as shall be done in this research work.

Odunowo examined the Nigerian Copyright Laws from a judicial perspective.

34

He stated that

Nigeria having acceded to the Berne Convention under which member states must accord the

same protection to the Copyright of the nationals of other member states as it accords to those

of its own nationals, it is inevitable that the Copyright laws of Nigeria would be affected by

any modifications made from time to time by member countries. He also examined the

modifications made from time to time by member countries. He also examined the penalties

imposed on importers of pirated works and concluded that they are glaringly inadequate in

33

T James,

„

Indian Copyright Law and Digital Technologies‟, Journal of Intellectual Property Rights Vol. 7,

September, 2002.

34

I Odonowo, Nigerian Copyright Law: A Judicial Overview, in Asien & Nwauche (ed), A Decade of

Copyright Law, Op. Cit.

15

view of the current value of the Nigerian currency. He further stated that there is need to

reconsider the present range of sanctions against pirates. He however failed to specify the

range of sanctions that will help deter infringers from engaging in Copyright violation as

shall be discussed in this work.

Ekpere discussed the Copyright law and national development.

35

He considered what

amounts to copyrightable works; who owns these works, as well as the rights of Copyright

owners. He emphasized the need to allow authors reap the economic benefits accruing from

their works because a county‟s development depends to a great extent, on the creativity of its

nationals. However, he failed woefully to discuss violations of Copyright and possible modes

of enforcement of Copyright in this digital millennium as shall be done in this work.

Bulter examined the concept of fair use vis a viz current Copyright Laws such as Sonny Bono

Copyright Extension Act, Digital Millennium Copyright Act, Technology, Education, and

Copyright Harmonization Act, and the Uniform Computer Information Act, all of the United

States of America.

36

She concluded that these laws do not adequately protect the rights of

Copyright owners as they one way or the other, did not properly address the issues of

Copyright regarding the interests of the general public and those of Copyright owners. She

suggested among other things for the creation of Copyright awareness and Copyright

education in the society. She failed to examine the various interests of Copyright owners as

well as those of the general public before arriving at her aforementioned conclusion.

Babafemi examined all facets of Copyright including the infringement and enforcement of

rights of authors.

37

He discovered that the Nigerian Copyright Commission has recorded a

35

J Ekpere, „Nigerian Copyright Law and National Development: Philosophical Economic Paradigm For the

the Next Millenium‟ in Asien & Nwauche (ed), A Decade of Copyright Law in Nigeria, Op. Cit.

36

P Butler Rebecca, „Copyright Law and Organizing the Internet‟, Library Trends Vol. 52, No.2 Fall 2003.

37

F Babafemi Intellectual Property Law and Practice of Copyright, Trade Marks, Patents and Industrial

Designs in Nigeria (1

st

Edition, Ibadan: Justinian Books Limited, 2006).

16

huge success in the fight against piracy but pointed out that despite the stringent criminal

provisions and penalties in the Nigerian Legal System, piracy still thrives because the law

does not confer the right to prosecute criminal cases on Copyright owners. He suggested that

both the state and the individual Copyrights owners must make combined efforts towards the

achievement of this noble goal of achieving a holistic enforcement of Copyright through the

creation of awareness of Copyright in Educational Institutions and the introduction of

Copyright in the curricula of institutions of higher learning as compulsory course. He

however failed to examine Copyright infringement vis a viz the emerging digital technologies

that aid piracy in the 20

th

and 21

st

centuries.

Sami et al discussed the use of camera based mobile phones in the infringement of

Copyright.

38

According to him, digital media offer several distinct advantages over analog

media, such as high quality, easy editing, high fidelity copying, etc. As a result of this,

infringers resorted to the use of such mobile phone to infringe Copyright at supersonic

spread. They suggested the use of steganography and digital marking which are the arts of

sending messages within the image such that the existence of the messages are not known to

the Capturer, the goal being to avoid perception of hidden message within the image during

transmission. By the insertion of these techniques by the manufactures of the phones, the

owners of the phones can easily be apprehended using Graphic Information System. These

authors however failed to examine other forms of adaptations done with mobile phone

through the help of the internet as shall be discussed in this work.

Wheatley x-rayed the purpose of Copyright Law in the United Kingdom and United States,

38

B Samir et al. ‘Proposed Secure Mechanism for Identification of Ownership of Undressed Photographs

or Movies Captured Using Camera Based Mobile Phones‟, Journal of Information Assurance and security,

No. 2 (2007).

17

as well as the nature and function of Digital Rights Management Systems.

39

According to

him, even though creators must reap the benefits of their labour through economic gains

flowing from their works, a balance should be struck between such interests of the owners of

the work and that of the society. He further stated that the Digital Millennium Copyright Act

of the United State contains detailed provisions regarding the circumvention of technological

measures controlling access to protected work. He however admitted that while the Copyright

Laws of the United States forbid the circumvention of protective technological measures, fair

use is specifically preserved. He also discovered that the Copyright Laws of the United

Kingdom do not contemplate fair dealing exception to anti-circumvention laws. He further

stated that if we are to take Copyright law as an attempt to achieve the appropriate balance

between the interests of the Copyright owners and the interests of the society, the questions

remain as to whether conducts by individual Copyright owners that could upset this balance

should be controlled by legislative intervention; or whether those who use Copyrighted works

that are fettered in such a way that lawful uses are impeded should have a right to remove the

barriers to lawful use without fear of legal action? He however failed to examine the

provision of fair dealings under the two jurisdictions he considered to ascertain whether such

provisions are available.

Thamodaran et al considered encryption and watermarking as the primary and contemporary

technologies for protecting multimedia contents.

40

After they analyzed these technologies,

they presented a hybrid image protection scheme to establish a robust content based

authentication by using novel cryptosystem based on matrix transformation for the generation

of encryption on key and Copyright protection by using watermarking system. These authors

39

C Wheatley „Overreaching Technological Means for Protection of Copyright; Identifying the Limits of

Copyright in works in Digital Form in the United States and the United Kingdom‟ 7 WASH. U.

GLOBAL STUD. L. Rev. 353 (2008).

40

K Themodaran, et.al. „A Novel Security Mechanism for Image Authenticity and Copyright Protection‟

International Journal of Computer Applications (0975-8887) Volume 4-No 3, July 2010.

18

however failed to examine the legal framework existing at least in India where they came

from, to determine the workability and efficiency of these technical enforcement

technologies.

Ozioko examined the provisions of the Nigerian Copyright Act relating to access to

knowledge.

41

He comprehensively considered the provisions of the laws relating to fair

dealings, Copyright terms, compulsory licenses, etc. He concluded that the concept of

compulsory licenses under the English Act is wider in scope than that of the Nigerian Act.

This is also the same with the powers exercisable by the licensing bodies of these countries.

He suggested that given the low level of the development of this area of the law in Nigeria, as

well as the high potential of abuse, such wider access should not be advocated in order not to

sacrifice the opportunity of right owners to reap just benefit from their creations on the altar

of promoting public access to knowledge and information. He however failed to enumerate

the species of infringement of Copyright that regularly occur in the process of exercising

public interests‟ rights on copyrightable works.

Garvis examined the collective management of Copyright and related rights in the United

Kingdom and other Commonwealth countries, with a view to providing the theoretical

foundation of collective management of Copyright. He also discussed the paradox of

Copyright and the fragmentation of rights.

42

He was of the view that while Copyright law

seeks to maximize the creation of new works and their dissemination by affording Copyright

owners the right to exclude others from copying, performing, and communicating those

works. He stated that there will be a total inhibition of creativity if the society is completely

shut out from improving on the works of these creators by way of fair dealing. He suggested

that the management of Copyright by the owners should not work hardship on other creators

41

M Ozioko, „Copyright Provisions Impacting on Access to knowledge: A Comparative Analysis‟, UNIZIK

Law Journal, Vol 7 No. 1 2010.

42

D Gervais, Collective Management of Copyright and Related Rights, (2

nd

edition, Netherlands: Kluwer Law

International, 2010).

19

and innovators due to unnecessary stagnating conditions at the instance of creators. He

however failed to address the issues of Copyright violations emanating from the use of anti

circumvention devices regularly employed by infringers to illegally access copyrighted works

and the financial losses suffered by rights owners as a result of this.

Oguamanam examined piracy in the Nigerian film industry.

43

He considered the Nigeria‟s

Intellectual Property Regulatory landscape and conceded that the Nigeria Copyright

Commission has good intentions on Copyright protection. He however stated that one of the

obvious draw backs to its role as the de facto focal point for Nigerian‟s IP policy is its limited

and an understandable lack of manpower to operate in other regimes of IP. He however failed

to consider the other organs used by the Commission to enforce Copyright protection such as

the Copyright Inspectors and the Copyright Licensing Panel.

Arul examined the introduction of the WIPO Digital Rights Management provisions by the

Indian Copyright (Amendment) Act, 2012.

44

He analyzed the Indian Digital Rights

Management Systems vis a viz the U.S. Digital Millennium Copyright Act and stated that

there is need for a careful consideration of the new Digital Right Management provisions

under the Amended Indian Copyright Act; as this introduction was made without engaging

in due economic analysis as to its need, as well as the consequences and risks associated with

it. However, he failed to examine the legality of the anti piracy devices used to protect works

and the concept of fair use in relation thereto.

Ouma wrote on the role of Copyright in Economic growth.

45

He examined the various

Copyright related industries in Africa and stated that the film industry in Africa is still at its

43

C Oguamanam, „Beyond Nollywood and Piracy: In search of IP Policy for Nigeria‟, Nials Journal of

Interceptual Property (NJIP) Maiden Edition November, 2011.

44

G Arul „Does Indian Need Digital Right Management Provisions or Better Digital Business Management

Strategies?‟ Journal of Intellectual Property Rights Vol. 17, September 2012.

45

M Ouma, „The Role of Copyright in Economic Development: A Review from Kenya‟. Nials Journal of

Intellectual Property (NJIP) VOL. 1 No. 2.

20

instant stages with the exception of Nigeria South African, Burkina Faso and Mali. He stated

that these industries are major contributors in terms of their relative aggregate value-added to

a country‟s gross domestic products. He concluded that the activities of these industries are

hampered by high level of unauthorized commercial use of protected works; limited

enforcement of Copyright and related rights; limited finance and credit facilities to develop

the industry; piracy, etc. He however did not discuss the infringement of Copyright and how

to remedy same.

Adebambo examined the evolution of Copyright law in Nigeria.

46

He stated that Copyright

has been a right enjoyed by the creators in primitive Nigeria from time immemorial. He

stated that the first attempt to introduce legislation on Copyright in Nigeria was the extension

in 1912 of the English Copyright Act, 1911 to the Southern Protectorate of Nigeria. He

further stated that the inadequacies inherent in that Act led to the promulgation of the first

indigenous Copyright Act of Nigeria which was promulgated by the Gowon Administration

in 1970. According to him, it was the inability of the 1970 Act to address issues of

infringement of Copyright that led to the promulgation of the 1988 Copyright Act and later,

the 2004 Copyright Act. He admitted that the promotion and administration of Copyright has

continued to develop despite many socio-economic, political and technological invocations

that militate against the rapid growth of Copyright. He also stated that it is as a result of the

wide spread use of the internet and the increasing sophisticated technologies that make it very

difficult for Regulatory Bodies established by the Copyright Acts to combat piracy. He

however failed to examine the Copyrights Acts of the other jurisdictions subject of this work

with a view to determine the extent of infringement and enforcement of Copyright in these

jurisdictions.

46

A Adebambo, Nigerian Copyright System, Principles and Perspectives: Selected Papers Op. Cit.

21

Asein considered the Nigerian Copyright system as has not been done by any Nigerian author

on Copyright.

47

He thoroughly examined the concept, evolutions, interests, and infringement

of Copyright in Nigeria. He also extensively discussed other enforcement mechanisms put in

place for the smooth administration of Copyright in Nigeria, such as the Nigerian Copyright

Commission, Copyright Inspectors and Copyright Collecting Societies. He concluded that

inspite of the establishment of these enforcement mechanisms, infringement of Copyright

thrives in Nigeria as a result of corruption, lack of competent personnel to man these bodies

as well as the porosity inherent in the Nigerian Act which tend to encourage Copyright

infringement. He made adequate recommendations on the steps to achieve a holistic

enforcement of Copyright.

He however limited his research to Nigeria and England. He also

failed to consider the technological protective measures and technological devices used to

circumvent these protective measures.

Agrawal et.al. considered the rapid escalation of multimedia and network in the current

digital era.

48

They stated that this development paved way for people to acquire, utilize and

share multimedia information thereby engaging in infringing activities. They introduced a

novel algorithm for hiding significant amount of data while preserving the image artifacts.

The algorithm uses image details and identifies the good locations for hiding using a

discriminative filter. They completely failed to examine any other form of technology that are

either used to perpetrate infringement of Copyright or used to enforce the protection of

Copyright.

Bhat wrote on the technological protective measures under the Copyright Laws of India, the

47

J Asein, Nigerian Copyright Law & Practice (2

nd

edn, Abuja: Books and Gravel Ltd. 2012).

48

S Agrawal et.al. „A Novel Data Hiding Framework Using Switching Threshold Mechanism‟

International Journal of Engineering and Advanced Technology (IJEAT) ISSN: 2249-8958, Volume – 2,

Issue-5, June 2013.

22

United States of America and under the WIPO Internet Treaties, 1996.

49

He acknowledged

that the emergence of the Digital Millennium Copyright Act of the United States has

introduced via amendment of the U.S. Copyright Act. He further stated that the relevant

provisions of the aforementioned WIPO Treaties and that the Digital Millennium Copyright

Act based provisions set out higher standards for the protection of Copyright in works than

those set forth in the WIPO Treaties, 1996.‟ He also stated that India has introduced

provisions for the protection of anti-piracy devices through the amendment of the Indian Act

in 2012. According to him, the amendment is a welcome step that will surely contain, if not

put an end to the menace of digital piracy. He however expressed the opinion that the

amended Act is capable of facing Copyright challenges of digital technologies, including

those of internet; and that it seems inevitable that the digital networked environment will

eventually necessitate more radical changes to the Copyright system, not only to ensure

adequate protection of right holders, but also to protect the legitimate interests of users of

protected works. He however failed to examine the enforcement mechanisms in the

jurisdictions considered in his work.

Ishola examined violations of Copyright through photocopying in Tertiary Institutions in

Delta State.

50

He also examined the functions of the Nigeria Copyright Commission and

stated that a lot needs to be done to reposition the Commission to enable it effectively combat

Copyright infringement. He however failed to consider infringement in the other component

states that make up Nigeria in order to take a position on what to do to eradicate Copyright

infringement in Nigeria.

49

I Bhat, „Technological Protection Measure Under the Copyright Law‟ International Journal of

Emerging Trends and Technology in Computer Science (IJETTCS) Volume 2, Issue 2, March-April,

2013.

50

Ishola Bolanle Clifford, „A Violation of Copyright Law Through Photocopying in Tertiary Institutions in

Delta State: Case Study of Delta State University Abraka‟, Journal of Education and Practice ISSN2222-

1735 (Paper) ISSN 2222-288X (Online) Vol. 5, No 30, 2014.

23

Adewole wrote on incidences of optical disc piracy in Nigeria vis a viz the Copyright (Optical

Disc Plants) Regulations 2006.

51

He examined the duties imposed by the Regulations on the

Nigerian Copyright Commission, the registration and licensing, obligations of registered

persons, use of source identification code; and the enforcement powers conferred on the

Commission. He concluded that if the provisions of the Regulations are incrementally

implemented, it can facilitate the checking of the menace of piracy of optical disc products in

Nigeria. He however failed to discuss the consequences of non compliance with the

Regulations or the penalties against violators.

Okeke and Uzor examined the protection accorded to Copyrighted works at both international

and state levels.

52

They discovered that Copyright law has improved as a result of the

International Copyright Treaties but that the long term protection conferred on creators by

these Treaties interferes with the downstream creative endeavours and legitimate consumer

expectations. According to them, the regulation of Copyright to the extent that it creates a no-

go area for others could make it difficulty and sometimes impossible, for a wide range of

creativity that any free society would legally allow to exist. They suggested that it is

important to review the duration of Copyright, in line with the provisions of Article 7 of the

Berne Convention for the Protection of Literary and Artistic Works, 1971. They however

failed to consider the exceptions to Copyright control with a view to determining the extent

this concept conflicts with the legitimate rights of Copyright owners.

Adekola and Eze examined the activities of the Nigerian Copyright Commission in Fighting

Copyright Infringement.

53

They discovered that in the United States and other countries,

51

Adedeji Adewole, „Combating Piracy Through Optical Disc Plant Regulation in Nigeria: Prospects and

Challenges‟, Nials Journal of Interceptual Property (NJIP) Maiden Edition November, Op. Cit.

52

C Okeke, & K Uzor, „An Appraisal of the Protection of Copyright under International Law‟, Journal of

Law and Conflict Resolution’ Op. Cit.

53

F Adekola and S Eze, „Intellectual Property Rights in Nigeria; A Critical Examination of the Activities

of the Nigerian Copyright Commission‟, Journal of Law, Policy and Globalization, Vol. 35. 2015.

24

intellectual property has gained increased protection with the advances in technology and

international trade, stressing that some countries still tolerate the widespread sale of

counterfeit versions of intellectual property products. They concluded that there is no doubt

that Nigeria‟s intellectual property and Copyright protection efforts have in recent times

received a quantum leap resulting mainly from the dynamic impetus put into the modality of

Nigeria‟s creative rights administration by the leadership of the Nigerian Copyright

Commission, which has among other things, initiated collaborative measures to control

piracy of intellectual property works. Since then, there has been tremendous improvement in

the administration, enforcement and protection of Copyright works.

These authors failed to

examine the various arms of the Commission and their functions towards Copyright

enforcement, nor did they state the achievement of the Commission if any.

Having the imperfection inherent in the above discussed literatures, steps shall be taken in

this research work to thoroughly examine the rights conferred on Copyright owners,

exceptions to these rights, the Copyright enforcement mechanisms, and the enforcement

techniques employed in the jurisdictions under consideration in order to determine whether

there are provisions of the law that promote or tend to piracy or distort the balance between

the rights granted to authors and the public interest right of access to work for advancement

of knowledge and information. Suggestions shall be proffered on the ways to balance these

rights/interests in order to promote creativity.

/

25

CHAPTER TWO

2.0 NATURE OF COPYRIGHT

2.1 Meaning of Copyright

Copyright has been described as property in which an action to restrain the infringement of a

right or property will lie even if no damage can be shown.

54

It is a specie of intellectual

property, with its own unique character, a property right that at the same time exhibits

features of a personal right.

55

Justice Erle rightly argued that:

56

It is true that property in the other of words is a mental abstraction,

but so also are many other kinds of property; for instance, the

property in a stream of water, which is not in any of the atoms of

the water, but in the flow of the stream. The right to the stream is

nonetheless a right of property, either because it generally belongs

to the riparian proprietor, or the remedy for the violation of the right

is by action in the case, instead of the detinue or trover. Copyright is

an intangible; they are enjoyed as other property rights and can be

transferred by assignment, by testamentary disposition or by

operation of law as moveable property.

Copyright is therefore an automatic right that gives the creators of literary, dramatic, musical,

artistic works, etc., the right to control the ways in which their materials may be used.

57

This

is because there is a belief that there is property in creative works.

58

Thus, there is a basic

correlation between work and wages. Hence, a person who has laboured or worked to

produce copyrightable material ought to have a sole enjoyment of the benefits accruing from

his work. Lord Atkinson concurred with this line of argument when he stated in Macmillan &

Co. v Cooper

59

that the moral basis on which the principle of the protective provisions of

Copyright rests is the eight commandment „Thou shall not steal‟. Thus, the modern concept

54

Weatherby & sons v International Horse Agency and Exchange Ltd.[1910] 2 Ch. p.297, at p.305; Choate

et.al. Cases and Materials on Patent Law including Trade Secrets-Copyright-Trademarks,

(Minnesota, West Publishing Co. St. Paul, 1987) p.800.

55

J Asein, Nigerian Copyright Law & Practice (2

nd

edn, Abuja: Books and Gravel Ltd. 2012) p.6.

56

Jefferey v Boosey.(1855) 4 H.L.C. p.815.

57

G Okeke & K Uzor, „Journal of Law and Conflict Resolution’ Journal of Law and Conflict Resolution

ALCR.,

Vol. 6.April, 2014.

58

Ibid.

59

(1923) 40 T.L.R. p.186 at p.187.

26

of Copyright law postulates that the primary purpose of Copyright is to promote public

welfare by the advancement of knowledge with the specific intent of encouraging the

production and distribution of new works for the public. It provides incentives for creators by

granting them the exclusive rights to produce and distribute their works, and in so doing, reap

the fruits of their labour. It was held in Gero v Seven-Up Company that the goal of Copyright

protection is to encourage dissemination of ideas by protecting the embodiment of expression

of an idea in a creative work and reserving the right in it to the creator of the work.

60

It was

also held in Oladipo Yemitan v Daily Times & Gbenga Odusanya that the function of

Copyright law is to protect from annexation by other people, the fruit of another‟s work,

labour, skill or taste.

61

2.2 Historical Development of Copyright

By virtue of the historical link between Nigeria and her Colonial Master, the Great Britain,

the entire modern Nigerian legal system inextricably has its origin and roots mainly in

English Law. As such, the history of Copyright laws in Nigeria is traceable to the Copyright

law of Great Britain. It must be stated categorically that prior to the arrival of Britain to

Nigeria and indeed Africa as a whole, many African traditional societies recognized some

forms of property rights in certain intellectual products as being to some extent, the exclusive

preserve of the person, group of persons or tribe that invented them. Asein agreed with this

fact when he stated thus:

62

there is ample evidence pointing to the existence, from early times

of some form of property rights in different kinds of intellectual

products or works of the mind, although the exact nature of the

rights differs from one culture to the other. Societies where writing

had developed to some appreciable level recognized in the physical

material embodying the writings, even if such rights were not

exactly the same as the modern concept of Copyright.

60

215 USPQ, p.512.

61

(1980) F.H.C.R. 180; O Eze, „Patents and Transfer of Technology with Special Reference to East

African Community‟, East African Law Review, 1972, p. 127.

62

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.19.

27

Intellectual properties protected by the then primitive Nigerian Societies included dancing

steps, musical compositions, artistic carvings, designs or patterns, etc. It was then common

practice for anyone who desired to acquire any bit of those intellectual products or skills to

approach the original inventor and pay certain customary tributes, or perform some requisite

rituals before such transfer or acquisition could be made.

63

Some quasi Copyright practices

have been found in Hausa-Fulani literature where poems have been reduced into writing with

acknowledgements of their original authors.

64

Yoruba Ijala ballads are usually prefaced by

the Ijuba which is an acknowledgement by the performer of the original author of the poetic

piece being performed or adapted.

65

However, the obvious shortcomings of the Copyright

concept of the Nigeria ancient societies were that apart from being imprecise, they were not

codified and no serious enforcement procedure existed to prevent a potential infringement of

Copyright. There was also no form of redress in cases of established violations of Copyright.

It must be pointed out that in Britain, Copyright evolved as a bye-product of political,

religious and social conflicts. During the reformation movement in Britain, the press was

viewed by the state as prejudicial to its interests and those of the church, hence the attempt to

stem their influence through censorship.

66

The state stepped in at that time to regulate the

printing industry not out of any desire to protect or advance the interest of authors, but in

order to safeguard the perceived interests of the state. With the invention of movable types

and the evolution of printing in England, it became easier and cheaper to make copies of

works.

67

Thus, the authors right to the physical property in the manuscript no longer afforded

him adequate protection as his work could be reproduced by strangers in a twinkle of an eye,

at minimal cost. As a result of the interplay of various forces competing for control of the

early press, the stationers, who were the forerunners of modern publishers emerged as risk

63

Ibid.

64

Ibid.

65

Ibid.

66

Ibid.

67

Ibid.

28

takers who invested in the printing and commercial exploitation of works of authors.

68

The

stationers‟ company was founded in 1403 and was granted a Royal Charter of Incorporation

on 4

th

May, 1557 as a guild with the monopoly over the business of book printing.

69

The

company‟s notable stationers were printers, publishers and booksellers. The charter requires

every published work to be entered on the register of the company and in the name of one of

its members. Members brought manuscripts from authors and thereafter enjoyed perpetual

monopoly over the printing of such works. This gave the stationers exclusive privileges in the

book trade with the company authorized to destroy books that were printed or imported in

contravention of the Charter. Having been registered in the names of stationers, the right to

reproduce such works was transferred from the author to the stationer and his successors in

title. All that the author was left with was his manuscript, which in view of the press

restrictions, was hardly used unless in the hands of a stationer. With the abolition of the Star

Chamber in 1640, Parliament took over the powers to regulate the business of printing

including the Stationers Company.

70

This regulatory measure, along with strict control

imposed on the operation of printing presses, was considered by many commentators as part

of a grand design by the state to censor the business of printing rather than an attempt to

confer Copyright or any other form of protection on authors. As a follow up to the agitation

of authors, the Licensing Act was then promulgated

71

which provided for prior licensing

before any book should be printed. The consent of the owner of the book was also required

before the book is printed; otherwise the copies printed without his consent could be forfeited

to him. Penal sanctions against piracy were also introduced, thus, making every pirate liable

to forfeiture of the infringing books and a fine.

72

However, following the flagrant violations

of Copyright upon the expiration of the Licensing Act in 1679, the Stationers complained to

68

Ibid.p.21.

69

Ibid.

70

Ibid. p.22.

71

Ibid.

72

Ibid.

29

the Government over the usurpation of their rights and the inadequacy of the remedies

granted to them by the Courts upon the fulfillment of the condition of first proving the actual

damage suffered in the face of the fact that most of the authors were men of straw. Parliament

responded by passing the first Copyright Act of England in the same year.

73

The Act granted

authors of books and their assignees, the sole rights to print such books for a period of

fourteen years from the date of first publication, subject to an additional term of fourteen

years during the lifetime of the author. Such authors were equally conferred with the

exclusive control of the exploitative acts in relation to their work for a term of twenty one

years for published works, and fourteen years for unprinted works.

74

There was a further

requirement that the title of books be registered at the Stationers‟ hall and ninety copies of

same be deposited with designated libraries.

75

Even though this Act was a radical departure

from the old order by reason of vesting Copyright in authors, it still retained the traditional

sympathy for entrepreneurs by extending the rights granted to booksellers and printers.

76

The term of Copyright in published works was extended in 1814 to twenty-eight years or for

the author‟s natural life, whichever was longer.

77

Furthermore, the duration of Copyright was

enlarged in 1842 to the life time of the author and seven years after his death, or forty-two

years from the date of publication, whichever was longer.

78

Obviously, this extension was to

redress the perceived anomaly in the 1814 Act which added the residue of the owner‟s life to

the twenty-one years duration of protection for published works. Asien noted that:

79

as a result of other parallel developments that occurred in other fields

of creativities outside the book industry in the United Kingdom

necessitated the promulgation of other laws in relation thereto, for

example, the Engraving Copyright Act was passed in 1734 conferring

Copyright on engravings for a term of fourteen years; the Sculpture

Copyright Act was passed granting protection to works of sculpture;

73

Copyright Act of England, 1709 also known as the Statute of Anne.

74

J Asein, Nigerian Copyright Law & Practice (supra), p.19.

75

Ibid.

76

Ibid.

77

Copyright Act of England, 1814, Section 4.

78

Literary Copyright Act of England, 1842.

79

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.25.

30

the Dramatic Copyright Act, 1833 and later the Copyright Acts, 1842

were passed to protect the performing rights in musical and dramatic

works. Musical works received further protection under the Copyright

(Musical Composition) Act, 1888 and the Musical Copyright Act,

1906.

However, inspite of the passage of these Laws, there was need for a consolidated Act to

streamline the many Statutes at that time in the field of Copyright. Eventually, the English

Parliament promulgated yet another Act on 16

th

December, 1911, which Act came into force

in England on the 21

st

day of July, 1912.

80

The Act entirely repealed seventeen previous Acts

and specific sections of four others.

81

The Act was the first codified Copyright Law to apply

to Nigeria.

82

One major defect in the 1842 Act which the 1911 Act sought to correct was that

the latter took into account the technological changes that followed progressive

industrialization.

83

Consequently, upon the invention of the gramophone by means of which

musical works were fixed on record plates that could be played, the owners of Copyrights in

musical works protested against the exploitation of their works.

84

Their protests however,

yielded no fruits in the absence of adequate statutory protection in that regard.

This latter Act

effected the desired change by extending an author‟s right to his musical work

to „any

production „thereof.

85

It conferred statutory protection on unpublished works which until

then, was a common law right. Under this Act, Copyright subsisted in every original literary,

dramatic, musical and artistic work if in the case of a published work, the work was first

published in any part of his Royal Majesty‟s dominion and, if unpublished, the author of the

work was at the date of the making of the work, a British subject or resident within his

Majesty‟s dominion.

86

The term of Copyright was generally for the life of the author and fifty

80

Copyright Act of England, 1911, Section 37 (2)(a).

81

Ibid.

82

The application of this statute to Nigeria was by virtue of Order-In-Council No. 912 of 24

th

June, 1912.

83

J Asein, Nigerian Copyright Law & Practice Op. Cit. p.25.

84

Ibid.

85

Boosey v Whight (1900) 1 Ch. p.122.

86

Section 1 (1) Copyright Act of England, 1911.

31

years after his death.

87

However, it permitted a form of compulsory license after the

expiration of twenty-five years from the death of the author.

88

It also provided that any person

could reproduce the work for sale after having given the prescribed notice in writing of his

intention to reproduce the work and upon payment of royalty calculated at 10 percent of the

published price of the work.

89

While providing for the usual remedies including injunction,

damages, accounts etc, the criminal sanctions contained in the Act were limited to the United

Kingdom.

90

The 1911 Act was repealed by another Act

91

which introduced some changes in the law

especially with respect to the alienation of interest in a Copyright work. It stated that no

assignment of Copyright had effect unless it was in writing which by implication meant a

formal assignment and not a license.

92

This was a sharp diversion from the 1911 Act which

provides that any interest in Copyright can be granted by licence.

93

However, the 1956 Act

was repealed in England by the 1988 Act, which is the current law on the subject in Britain.

Upon the attainment of independence on the 1

st

of October, 1960, Nigeria continued to apply

the 1911 Act of England as she had no other indigenous legislation on Copyright. The need

for a local legislation on Copyright among other reasons, gave rise to the promulgation of the

first indigenous Copyright Act of Nigeria which repealed the 1911 English Act.

94

However,

the Act failed to curb violations of Copyright for which it was brought into existence because

of its lack of adequate penal sanctions for criminal infringement and other remedial measure.

It failed to protect neighbouring rights and also failed to make provision for any

administrative machinery for the enforcement of Copyright. It reduced the term of Copyright

87

Ibid. Section 3.

88

Ibid. Section 4.

89

Ibid. Section 3.

90

Ibid. Sections 11 and 13.

91

the Copyright Act of England, 1956.

92

Ibid. Section 10 (3).

93

Copyright Act, 1911, Section 5 (2).

94

Copyright Act, 1970.

32

from the previous period of fifty years under the 1911 Act, to twenty-five

years

from the

death of author of a work.

95

The Act failed to take into consideration the fact that at the time

of its promulgation, there were modern technologies which had opened new possibilities as

the reproduction of Copyright works became cheaper and more evasive. This period

coincided with the end of the Nigerian civil war which commenced in 1967 and ended in

January, 1970; after which there was a surge in the popularity of music and an increase in the

purchasing power of the average consumer brought about by the 1974 upward review of

salaries in the public service popularly known as „Udorji Award‟.

96

It became obvious that

the light penal sanctions in the 1970 Act and the omission of Anton Pillar order and

conversion rights which were included in the 1911 Act, led to a surge in violations of

Copyright in Nigeria. The outcry by authors and musicians against the present Act resulted in

the passing into law of the more elaborate Nigerian Copyright Act in 1988. This Act

represents a great improvement on the previous Act in its definition of the nature and scope

of Copyrights, the provisions on compulsory licensing, acts of infringement and criminal

sanctions for Copyright abuses, and contains a separate section on the administration of

Copyright Commission.

97

However, as a result of some inefficiencies decoded in the Act, it

was amended in 1992 and 1999 respectively.

98

The 1992 Decree introduced four additional

sections, obviously to facilitate the administration of Copyright in Nigeria.

99

The Act grants

various powers to the Minister

responsible for Culture and the Nigerian Copyright

Commission, to make subsidiary legislations in the form of orders or regulations. The 1988

Act together with the relevant Copyright Amendment in Nigeria are contained in the current

95

Copyright Act of Nigeria, 1970, Section 18.

96

Ibid. First Schedule.

97

J Asein, Nigerian Copyright Law & Practice , Op. Cit. p.31.

98

The Copyright (Amendment) Decrees of 1992 and 1999.

99

Section 37 (establishment of Copyright Licensing Panel); Section 38 (appointment of Copyright Inspectors);

Section 39 (establishment and regulation of Collecting Societies) and Section 40 (Levy on Copyright

materials). The Amended Decree of 1999 introduced novel provisions relating to anti-piracy measures and

criminal liabilities in relation to infringement of Foklore.

33

Copyright Legislation of Nigeria.

100

Any Subsidiary Legislation made under the 1970 Act

which was still in force at the date of the commencement of this present Act shall remain in

force, subject to any necessary modifications, as if such Subsidiary Legislation had been

made under the present Act.

101

However, the relevant Order and Regulations

102

which were

made pursuant to the 1970 Act respectively were omitted in both the Acts of 1988 and that of

2004.

103

It is apposite to state at this juncture that the United States and India have similar experiences

as Nigeria as they were at one time or the other, colonies of Great Britain. As such, they

derived their Copyright laws from her. However, the Copyright Acts of United Kingdom,

United States and India, like the Nigerian Act, have been variously amended towards

achieving better protection and enforcement of Copyright.

2.3 Subject Matters of Copyright

It is not every work that is accorded Copyright protection. The Acts under consideration

expressly provide for works that are subject matter of Copyright. For example, the Copyright

Act of Nigeria enumerated works that are qualified to attract Copyright protection as:

Literary works; Musical works; Artistic works; Cinematograph films; Sound recordings, and

Broadcasts.

104

In the same vein, the U.S. Copyright Act states that works of authorship

includes: literary works; musical works; including any accompanying words; dramatic works,

including any accompanying music; pantomimes and choreographic works; pictorial, graphic

and sculptural works; motion pictures and other audiovisual works; sound recordings; and

architectural works.

105

On the other hand, the Copyright Act of England enumerates

100

Copyright Act, Cap C28, Laws of the Federation of Nigeria, 2004.

101

C.R.A.N. Section 52 & paragraph 3 of the Fourth Schedule.

102

Copyright (Reciprocal Extension) Order, 1972 and the Customs and Excise (Copyright) Regulations, 1973.

103

Copyright Act,1970, section 14 and 15(5).

104

C.R.A.N. Section 1.

105

U.S.C. Section 102.

34

Copyrightable works to include: original literary, dramatic, musical or artistic works, Sound

recordings, films or broadcasts, and the typographical arrangement of published editions.

106

Similarly, the Copyright Act of India states that Copyright subsists in the following works:

original literary, dramatic, musical and artistic works; cinematograph films; and sound

recordings.

107

It is crystal clear that the Acts under consideration listed similar subject matters of Copyright,

though some of the Acts contain provisions that are broader in scope than others. It is also

relevant to point out that under the Indian Act, broadcast is not expressly provided for.

Furthermore, these Acts attempt to provide the exact meaning and scope of each of the

foregoing categories of protectable works. For example, while the English and U.S.

Copyright Acts seem to enumerate more items for protection, the Nigerian Act includes those

works contained in the relevant sections of the former Acts dealing with these items and

subsumed them under one item. Again, while the Nigerian Act does not expressly provide for

the protection of typographical arrangement or published editions in its list of protectable

works as is the case with the English Act,

108

in the interpretation section, these seemingly

omitted works are subsumed in those works expressly provided for in this Act.

109

It provides

to the effect that a literary work includes computer programmes, and written tables.

110

Asien

argued that:

111

the categorization of subject matters of protection is not always

exclusive as the same material may fall under more than one

category. So while a statutory definition may bring a material

under more than one category, there are instances where the Act

expressly limits certain works to only one category.

106

C.D.P.A. Section 1 (l).

107

C.R.A.I. Section 13.

108

C.D.P.A. Section 1 (1) (C); P James, International to English Law, ( 10

th

edn, London, Butterworths, 1979)

p.117.

109

C.R.A.N. Section 51.

110

Ibid.

111

J Asein, Nigerian Copyright Law & Practice , Op. Cit. p. 46.

35

This assertion is evident upon close examination of the Nigerian Act which defines

cinematograph film to include „the recording of the associated sound track‟. It also defined a

sound recording to include a sound track associated with a cinematograph film.

112

Again,

photograph not comprised in a cinematograph film is an artistic work.

113

Similarly, a poem or

a story may be both a literary work by virtue of its genre; and a sound recording by virtue of

the format in which it is presented.

114

In Norowzian v Arks Ltd. & Ors., it was rightly held

that a film could be both a recording of a dramatic work and a dramatic work per se; the

reason being that it could also be a work of action which was capable of being performed

before an audience and therefore, comes within the definition of dramatic work under the

current English Act.

115

It was also been held in Obe v Grapevines Communications Ltd. that

the plaintiff‟s book on the Nigerian Civil War titled „Nigeria: A Decade of Crises in Pictures‟

qualified as a literary work while the photographs contained in it qualified as artistic

works.

116

On the other hand, it is not in doubt that a work may comprise separate identifiable works,

each with its own distinctive and unique Copyright. Agreeing with this argument, lord

Templeman noted in the case of C.B.S. Songs Ltd. & Ors. v Amstrad Consumer Electronics

Plc. that:

117

a sound recording of a performance of a song with words may involve

three or more separate Copyrights, each with different durations. There

is a composer‟s Copyright in respect of his musical work; there is the

Copyright of the lyricist in respect of his literary works and there is

Copyright in the recording company in respect of its sound recording.

For a better understanding of these concepts and ideologies, the subject matters of Copyright

protection shall be distinctly discussed below.

112

C.R.A.N. Section 51 (l) (d).

113

Ibid.

114

Ibid.

115

[2000] F.R.S. p.363, or (2000) E.M.L.R. p.67.

116

(Suit No. FHC/L/CS/1247/97, quoted by Nigerian Copyright Law & Practice , Op. Cit. p.46.

117

(1988) A.C. p.1013 at p.1047.

36

2.3.1 Literary Works

Literary works can be said to be the earliest subjects of Copyright protection having emerged

as a result of the struggles against the threats of violation of Copyright created by the

emergence of the printing press. As a result of its aged history, the definition of what

constitutes literary work has been a product of change relatively from time to time. For

example, under the English Act of 1911and the Nigerian Act of 1970, a literary work was

defined to include maps, charts and plans; which works are now appropriately classified as

artistic works.

118

It is a fact that by reason of the invention of mechanical electronic writings

and recording devices, the degree and importance of writing in the conventional sense has

diminished over the years and one can now contemplate a literary work without pen and

paper. Therefore, it must be stated that the meaning of literary work may not be confined to

the sense in which the phrases ordinarily applies to such works as novels or poems of authors.

In this sense, one is compelled to consider the quality, style and literary finish of the work.

This makes the actual meaning and definition of literary works more problematic.

In Nigerian, the list of literary works includes, irrespective of literary quality: novels, stories

or poetical works; plays, stage directions, film scenarios and broadcasting scripts;

choreographic works; computer programmes; text books, treatises, histories, biographies,

essays and articles; encyclopedias, dictionaries, directories and anthologies; letters, reports

and memoranda; lectures, addresses and sermons; law reports, excluding the decisions of

Courts; written tables and compilations.

119

It is submitted that the use of the expression „or

works similar thereto‟ by the Nigeria Act in relation to literary work is suggestive of the fact

that the list of literary works is not exhaustive; thus leaving the potential scope of literary

118

Copyright Act of England, 1911 Section 35 (1) & Copyright Act of Nigeria, 1970 Section 19 (1); C

Millard, Legal Protection of Computer Programme & Data, (London, Sweet & Maxwell,

1985) p.1; J Philips, & A Firth, Introduction to Intellectual Property Law, (3

rd

edn, London,

Butterworths, 1995) p.323; E Andrew, & D Sullivian, World of Computing, (Boston,

Houghton Miflin Co., 1998) p.33.

119

C.R.A.N. Section 51 (l).

37

works open. For example, „poetical work‟ may be extended to include nursery rhymes.

Textbooks may encompass pamphlets, booklets or loose bound publications. „Treatises‟ may

be extended to include research projects, thesis and dissertations. „Biographies‟ may include

author-biographies and biolate. „Articles‟ may be extended to include diaries and year books.

„Dictionaries‟ may include concordances and commentaries.

However, it is not every work that is accorded Copyright protection as a literary work. In

Exxon Corporation & Ors. v Exxon Insurance International Ltd., the plaintiffs sued for

Copyright infringement and passing off and contended on the issue of Copyright that the

word „Exxon‟ qualified for Copyright protection as an original literary work under the

English Copyright Act, 1956.

120

They adduced evidence that the word was an original

creation and a product of an extensive research and expense. The trial judge refused the

Copyright claim, whereupon the plaintiffs appealed against this decision. In dismissing the

appeal, the Court of Appeal rightly held that the original literary work was a composite

expression to be construed as such and not a three separate words. The Court went further to

adopt the dictum of lord Justice Davey in Hollinake v Trusvell

121

and held that a „literary

work‟ should be something that afforded information, instruction and pleasure in the form of

literary enjoyment. The Court concluded that since the word „Exxon‟ was simply an artificial

combination of five letters of the alphabet that served only the purpose of identification when

used in juxtaposition with other words, for example „Exxon Petroleum‟, it was not within the

definition of an original literary work, as such, under the English Copyright Act, 1956.

Similarly, simple phrases such as titles have been rejected as not being literary works.

122

However, a plaintiff who fails in an action against the infringement of a book title under

Copyright protection, may succeed under the common law of passing off if the unauthorized

use of the title will likely lead to the confusion of the two titles used. In Adebusi v

120

(1982) Ch. p.199.

121

(1894) 3 Ch. p.420, at p.428.

122

Francis Day & Hunter Ltd. v Twentieth Century Fox Corp. Ltd. & Ors. (1940) A.C. p.112.

38

Aromolaram, the plaintiff alleged that the defendant‟s book was similar to his own book

titled „English and Verbal Tests‟ and that there was likelihood of the two texts being

confused.

123

The Court however held that the evidence adduced did not establish confusion or

likelihood of confusion on the part of the buyers. It further noted that the heavy onus placed

on a plaintiff in proving that the use in a title of descriptive words which are from the

common stock of English language had acquired such reputation or secondary signification as

to be regarded as pointing exclusively to that particular book was not discharged.

It is obvious that the English Act‟s list of literary works is endless as is the case under the

Nigerian Act. The Act protects work or any of those descriptions mentioned by the Act.

124

In

the same vein, the U.S. Act provides that literary works are works other than audiovisual

works expressed in words, numbers, or other verbal or numerical symbols or indicia,

regardless of the nature of the material objects, such as books, periodicals, manuscripts, photo

records, film tapes, disks or cards, in which they are embodied.

125

The India Act also

provides that „literary work‟ includes computer programmes, tables and compilations

including computer literacy data bases.

126

These provisions of both the U.S and India Acts are

to the effect that the lists of literary works are restricted by the Acts to the works only

expressly mentioned therein.

It is submitted that the mere restriction of literary works to the works expressly mentioned by

the Indian and United State Acts was such an obvious oversight that requires the immediate

amendment of these Acts along the line of the English and Nigerian Acts. This is because

there is no way the protection of literary works will thrive under such conditions especially in

this era of digitization where technologies are used to greatly advance piracy. This is

123

(1917-1976) 1 I.P.L.R. p.379.

124

C.D.P.A. Section 2 (1).

125

U.S.C. Section 101; R Schlatter, Private Property: The History of an Idea, (New Jersey, Rutger

University Press, 1951) p.54; J Orojo, Nigerian Commercial Law and Practice, Vol. 1. (London,

Sweet & Maxwell, 1979) p.1135.

126

C.R.A.I. Section 2.

39

worsened by the fact that the list of literary works enumerated by both the U.S. and Indian

Acts are so scanty.

2.3.2 Musical Works

It may be rightly said that musical works is the most generalized because of its direct impact

on the people who are in turn, the ultimate consumers of Copyright materials. It can be

asserted without challenge that a musical work under the Nigerian jurisprudence may be two-

pronged, that is to say, the song and the accompanying instruments. Musical works may also

be in different forms. They may consist of choruses, operas, songs, musicals and many be

composed for one or more instruments. Asien argued that the keyword in relation to musical

work is „composition‟ and it is this element that distinguishes a musical work from mere

lyrics; the first qualifies as a musical work while the second is a literary work.

127

Thus, it is

necessary to distinguish between musical work in the strict sense and mere literary works

intended to form the lyrics of the music. This is because the Copyright in both may not co-

exist in the same person. In Chappell & Co. Ltd. v Redwood Music Ltd.,

128

it was rightly

held that the music and lyrics of a song each had its own separate Copyright and that a song

in which the words were written by one person and the music by another, was neither a

collective work nor was there a separate and independent Copyright in the resulting song. In

C.F.A.O. v Archibold,

129

the plaintiff sued the defendant for infringement of Copyright in

some musical works. Of the twelve works in dispute, six were written in solfa letters without

intelligible musical notation while the rest has no solfa writing. In determining whether all of

them qualified as musical works, the Supreme Court of Ghana was of the opinion that

„Copyright with respect to musical works, implies the subsistence of a manuscript of written

matters setting out the distinctive combination of melody and harmony or either of them.

Mere words or verse with no intelligible musical notation indicating the melody were

127

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 59.

128

(1981) R.P.C. p.337.

129

(1964) C.L.R. p.718.

40

disqualified. These authorities cited above aptly captured the real intent of the drafters of the

Acts under consideration which shall be considered hereunder.

According to the Nigerian Act, musical works include „any musical composition; irrespective

of musical quality and includes works composed for musical accompaniment‟.

130

Under the

Indian Act, musical work means „a work consisting of music and includes any graphic

notation of such work but does not include any work or any action intended to be sung,

spoken or performed with the music‟.

131

Under the English Act, „musical work‟ means „a

work consisting of music, exclusive of any words or action intended to be sung, spoken or

performed with the music‟.

132

It is submitted that these provisions of the English and Indian

Acts are similar; each showing that the words or actions that are intended to be sung or

performed are not part of the musical works. The Acts however, do not explain or illustrate

the phrase „musical work‟ in any other place. It might well be that the intent of the drafters of

these Acts were that the written actions and words from which the music emanated do not

form part of the musical work. This is however an obvious misconception that necessitates

the immediate amendment of these Acts along the line of the more elaborate Nigerian Act.

On the other hand, the U.S. Act defines musical works to include „any accompanying

words‟.

133

The Act however contains no definition of the term „any accompanying words‟

thereby leaving everyone in doubt as to the exact meaning of the phrase. This is worsened by

the fact that none of the Acts under consideration contains such phrase in relation to musical

work. It is therefore suggested that the Acts under consideration be amended to define this

term. This will make for clarity and precision.

130

C.R.A.N. Section 51.

131

C.R.A.I. Section 2 (P).

132

C.D.P.A. Section 3 (1).

133

U.S.C. Section 107 (a).

41

It is also noted that under the U.S. Act, pantomimes and choreographic works are neither

protected as literary works nor as musical works, but as independent works.

134

The Act

contains no definition of the term „Pantomimes‟ thereby making its meaning vague. This is

quite distinct from the Nigerian Act which protects choreographic work as literary work.

135

An immediate amendment of the U.S. Act is suggested in order to incorporate the definitions

of the relevant terms used by the Act into same.

It is observed that since the Acts under consideration do not contain the definition of the term

„musical work‟ in any language suggesting writing or other graphic representation. The only

eligibility tests required are that of originality and fixation. Thus, for a musical work to be

accorded Copyright protection, sufficient efforts must have been expended in making the

works to give them original character.

136

This is buttressed by the fact that while mentioning

musical work, the Indian and English Acts use the term „original musical work‟ thereby

implying the application of the originality test.

137

The U.S. Act provides for the requirements

of both originality and fixation.

138

Again, even though the Indian Act does not expressly

provide for fixation, the Nigerian, U.S. and English Acts provide for same.

139

Thus, what is

required is that the work must be 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.

2.3.3 Artistic Works

According to the Nigerian Act, „Artistic Work‟ includes, irrespective of artistic quality, any

of the following works or works similar thereto: paintings, drawings, etchings, lithographs,

134

Ibid. Section 102 (a) (2).

135

C.R.A.N. Section 51; A William, „Has Copyright had its Days‟, International Business Lawyer,

April, 1999, Vol.27. No.4. p.148.

136

C.R.A.N. Section 1 (2) (b).

137

C.R.A.I. Section 13; C.D.P.A. Section 1.

138

U.S.C. Section 102 (a).

139

C.R.A.I. Section 13 (2); U.S.C. Section 102 (a); & C.R.A.N. Section 1(2) (b).

42

woodcuts, engravings and prints; maps, plans and diagrams; works of sculpture; photographs

not comprised in a cinematograph film; works of architecture in the form of building models;

works of artistic craftsmanship; pictorial woven tissue and articles of applied handicraft and

industrial art.

140

It must be pointed out that the category of works protectable as artistic work

under the Nigerian Act is not closed, hence, the use of the expression „or works similar

thereto‟. This phrase must therefore be given its ordinary meaning when construed to

accommodate works like chat and designs within the meaning of artistic work. What is of

utmost importance is that whatever type of work that is sought to be protected as an artistic

work must not contravene the relevant provisions of the Act. This Section provides that an

artistic work shall 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 an industrial

process.

141

What this means is that if an artistic work was not intended for industrial

multiplication, it will be protected under Copyright whether or not it could be a proper

subject of a registered design. Thus, a right owner might decide to bring his artistic work

under Copyright where he perceives that the requirements for protection under the Act are

more stringent; or where the duration of protection accorded is shorter under the English Act.

Moreover, the Nigerian Act does not define the term „industrial multiplication‟. Asein

lamented that since the Act expressly defines artistic work to include „works of architecture

in the form of building models‟, such architectural models are not to be confused with other

models or patterns intended for industrial application.

142

In Ukaoha v Broad-Based Mortgage

Finance Ltd., the plaintiff‟s Copyright claim in a 17-story building model was rightly upheld

by the Court as a work of architecture.

143

140

C.R.A.N. Section 51.

141

Ibid. Section 1(3).

142

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 69.

143

[1992] 2 F.H.C.L.R. p.477; M Minnow, „Library Digital Table‟, http://www.copyright. com/Digitization

Table. Htm. Accessed 10/10/17.

43

A situation may however arise where at the time the artistic work came into existence, there

was no intention that it will be multiplied by an industrial process, but after being protected

as an artistic work, it was later multiplied by an industrial process. In the only known case

where such a situation arose, the Court held that where Copyright had come into existence in

respect of artistic drawings, the fact that those drawings were subsequently used or were

intended to be used as models or patterns to be multiplied by an industrial process, and

thereby becoming eligible for protection under the Registered Designs Act, 1949 or its

predecessor, would not lead to a forfeiture of the Copyright.

144

It is however doubtful whether

this judicial decision will be applicable to Nigeria. This is because the present Copyright Act

of Nigeria is narrow as far as artistic work is concerned. The only determinant factor as to

whether an artistic work should be protected under Copyright or as a patent is the intention of

the artist at the time of making the work. However, the Act does not leave any guidance as to

what qualify as „industrial multiplication‟. It is submitted that this omission will obviously

occasion a miscarriage of justice in cases involving breaches of Copyright in Artistic works.

It is therefore suggested that the Act be urgently amended to provide the real intention of the

drafters of the Act on what constitutes „industrial multiplication‟ and to separate the works

that should be protected as artistic works under the Act, and the works that should be

protected as designs under the Patent and Designs Act. In the proposed amendment, the

phrase „irrespective of artistic quality‟ should also be expunged from the Act. This is because

it is a source of confusion and leaves no doubt that any form of art is artistic work. This

phrase also places uncertainty as to what qualifies as an artistic work.

It is observed that artistic works under the India and the English Acts are similar to those

under the Nigerian Act above discussion.

145

Therefore, all the discussions under the Nigerian

Act regarding artistic works are hereby adopted. On the other hand, the U.S. Act neither

144

King Features Syndicate Inc. v O.M. Kleeman Ltd. (1941) A.C. p.417.

145

C.R.A.N. Section 2 (d) ; C.D.P. A. Section 4.

44

expressly provides, nor defines artistic work. It only provides for the protection of pictorial,

graphic and sculptural, and architectural works which ordinarily fall under artistic works,

under the same section but in different paragraphs.

146

It is also clear that the works protected

by this Act are not as broad as artistic works protected under the Nigerian Act. For example,

it does not make mention of photographs, works of craftsmanship, articles of applied

handicraft, industrial arts, etc. It is therefore suggested that the U.S. Act be urgently amended

along the pattern of the Nigerian Act.

2.3.4 Cinematograph Film

According to the Nigerian Copyright Act, „cinematograph film‟ includes the „first fixation of

a sequence of visual images capable of being shown as a moving picture and of being the

subject of reproduction, and includes the recording of a sound track associated with the

cinematograph film‟.

147

It was held in Ugwuoti v Ezennia,

148

that it will amount to „quibbling,

redolent in farcical understanding of the evolution of audiovisual technology to state that

video films cannot be subsumed in the definition of cinematograph films, although an

anachronism in language, covers all motion pictures including cinematographic and

audiovisual works‟.

It therefore follows that the definition of cinematograph film excludes

slide shots since they are incapable of being shown as motion pictures. Such slide sets or

shots are accorded Copyright protection as artistic works. This is because they fall within the

class of photographs.

It must be pointed out that the Nigerian Act uses the phrase „first fixation‟ in relation to

cinematograph film but fails to define same. It is submitted that this phrase is a source of

confusion which is capable of posing evidentiary problems on litigants, especially if it is

146

U.S.C. Section 102 (a).

147

C.R.A.N. Section 51; H Josh, „HarperCollins Put 26 Loan Cap on E-Book Circulations‟, Library

Journal, (February, 25, 2011) http://www.libraryjournal.com/lj/889452-264/harpercollins puts 26

loancap.html.csp. accessed 30/11/17.

148

[2003] 17 WRN p.122.

45

interpreted to mean the original copy of the film or copies. Furthermore, in a situation where

the first fixation involves multiple copies. One may be confused as to whether the actual

copies referred to are the master tapes or the copies derived from the master tapes which are

already in the market. It is suggested that a liberal approach be adopted when interpreting the

term so that the term „first fixation‟ of the work will be understood to mean „the first copy or

set of copies of tapes, films, discs or other finished materials published or released to the

public‟.

Again, the use of the term „includes‟ in relation to cinematograph films suggest that the

definition of what constitutes artistic works is not exhaustive or limitative.

149

It is suggested

that it would be better to have a comprehensive list of artistic works that make up artistic

works instead of indulging in gaze work approach that will likely lead to miscarriage of

justice in the event of actual breach of protected rights.

It is observed that the Copyright Acts of India and England clearly protect cinematograph

films in the same manner as the Nigerian Act does. None of the former Acts expressly refer

to the requirement of first fixation as is the case with the Nigerian Act.

150

This omission is

unhealthy to Copyright enforcement. It is therefore suggested that these Acts be amended to

expressly provide for the requirement of fixation of cinematograph films.

On the other hand, the U.S. Act merely provides for the protection of motion pictures and

other audiovisual works without mentioning cinematograph films.

151

According to the Act,

„audiovisual works‟ are works that consists of a series of related images which are

intrinsically intended to be shown by the use of machines or devices such as projectors,

viewers, or accompanying sounds, if any, regardless of the nature of the material objects,

149

C.R.A.N. Section 51.

150

C.R.A.I. Sections 2 (f) & 13; C.D.P.A. Section 5 (b).

151

U.S.C. Section 102 (a); K Smith, „Streaming Video Case Dismissed‟,

http://blogs.library.duke.edu/scholcomm/2011/10/04/streaming-video-case dismissed accessed

30/11/17.

46

such as films or tapes in which the works are embodied.

152

This no doubt, shows that the

intendment of the Act is to protect cinematograph films, though in the names of motion

pictures and audiovisual works. This is buttressed by the fact that the Act talks of series of

related images intended to be shown by the use of a machine or other devices.

2.3.5 Sound Recordings

According to the Nigerian Act, „sound recording‟ means the first fixation of a sequence of

sound capable of being perceived aurally and capable of being reproduced but does not

include a sound track associated with a cinematograph film.

153

This clearly shows that a

sound recording is to the ear what a cinematograph film is to the eye. Again, it is evident that

a sound track associated with a cinematograph film forms part of the film and protected not

as a sound recording, but as part of the cinematograph film. It therefore follows that even

though a sound track associated with a cinematograph film is protect as part of the film, any

subsequent recording made therefrom or simultaneously as the sound track will qualify as a

sound recording and no longer part of the cinematograph film. The term „first fixation‟ used

in the definition of sound recording implies that sound recordings must be fixed for it to

enjoy Copyright protection. It should be noted that the aforementioned definition covers

sound recordings on audiocassette tapes, compacts discs, computer discs, memory cards and

other forms of sound corners. Other aspects of the conditions for eligibility in relation to

works have been considered in details in the preceding sub-topics in relation to musical

works and the arguments so canvassed apply to sound recordings mutatis mutandis. Hence,

there is no need to revisit same in order to avoid unnecessary duplication and repetition.

152

U.S.C. Section 101.

153

C.R.A.N. Section 101; H Stratman, „Protection of Software Titles under the New German

Trademarks Act‟ Trademark World, Issue 79, August, 1995, p. 11; M Minnow, „Library

Copyright Liability and Pirating Patrons‟, California Library Association,

http://www.cla-net.org/resources/articles/minow pirating.php. accessed 10/10/17.

47

It is submitted that the protection of sound recording under the Nigerian Act is a surplusage

and therefore highly unnecessary. This is because such works have already been protected

either as a musical work or a cinematograph film. This duplication may be a source of

confusion as litigants may not readily make up their minds as to the actual section of the Act

that is breached or under what heading to seek redress. This is further worsened by the fact

that the Act does not define what sort of sounds that can come under sound recordings. It is

therefore suggested that the Nigerian Act be amended to define the kind of sounds

contemplated by the Act in relation to sound recording; or to protect sound recording either

as part of cinematograph films or musical works.

It is observed that the protection of sound recording under the Indian, U.S. and English Acts

are the same as under the Nigerian Act.

154

However, under the U.S. Act, for any work to be

protected, it must first be fixed for the first time.

155

On the other hand, though the English Act

does not use the expression, „first fixation‟, it provides that Copyright does not subsist in a

sound recording which is, or to the extent that it is a copy taken from a previous sound

recording.

156

This clearly shows that there is a requirement of originality and fixation as in

the Nigerian Act. However, under the Indian Act, no mention of first fixation was made in

relation to a sound recording. It is suggested that this Act be amended along the line of the

other Acts above discussed.

154

C.R.A.I. Sections 2(XN) & 13; U.S.C. Sections 101 & 102 (a) (7); M Minnow, „Library Digital

Table‟, http://www.copyright. com/DigitizationTable. Htm. accessed 10/10/17.

155

U.S.C. Section 101; K Cushla,„Rethinking Copyrights for the Library through Creative

Commons Licensing‟, Library Trends 58, No. 1. (Summer 2009) 106.

156

C.D.P.A. Section 5A (2); A Efrati, & J Trachtenberg, „Judge Rejects Google Books Settlement‟ Wall

Street Journal, March, 23, 2011,

http://online.wsj.com/article/SB10001424052748704461304576216923562033348.html.

accessed 30/11/17.

48

2.3.6 Broadcasts

As earlier stated in this work, „broadcast‟ means sound or television broadcast by wireless

telegraph or wire or both, or by satellite or cable programmes and includes re- broadcast.

157

This shows that it is only sound or television broadcast by wireless telegraph or wire or both

or by means of satellite or cable programmes that are protected. The keywords involved in

this definition are wireless telegraph, cable programme and satellite. Accordingly, wireless

telegraphy means ‘the emitting or receiving of electromagnetic energy of a frequency not

exceeding three million megacycles a second, over paths which are not provided by any

material substance construed or arranged for that purpose‟.

158

Cable programmes means „

visual images, sounds or other information sent by means of a telecommunication system

otherwise than by wireless telegraphy for reception; at two or more places; whereas for

simultaneous reception or at different times, in response to request by different users; or for

presentation to members of the public‟.

159

The Nigerian Act does not make any mention of

fixation or first fixation in relation to broadcast as is the case with the other protected works.

It is submitted that this omission may confuse the public as to whether the requirement of

originality and fixation are not applicable to broadcasts. It is further submitted that in the

absence of the express requirement of originality and fixation, it will be difficult to establish a

case of violation of broadcast especially if the infringer claims that he did not receive the

broadcast from the plaintiff. It is therefore suggested that the Act be amended to expressly

provide for the requirement of originality and fixation as a condition precedent for the

protection of broadcasts.

157

C.R.A.N. Section 51.

158

Wireless Telegraphy Act, Cap W5, Laws of the Federation of Nigeria, 2004, Section 2.

159

C.R.A.N. Section 51 (1); H Josh, „HarperCollins Put 26 Loan Cap on E-Book Circulations‟,

Library Journal, (February, 25, 2011) http://www.libraryjournal.com/lj/889452-

264/harpercollins puts 26 loancap.html.csp. accessed 18/09/19.

49

It is noted that the protection of broadcasts under the English and Indian Acts are similar to

that of the Nigerian Act.

160

However, it seems that the concept of broadcast under the Indian

Act is broader than that under the Nigerian Act. According to the Indian Act, „broadcast‟

means „communication to the public by any means of wireless diffusion, whether in any one

or more of the forms of signs, sounds or visual images; or by wire, and includes a re-

broadcast‟.

161

It is therefore not in doubt that so long as sounds or visual images are

communicated to the public by wire or wireless diffusion, it will amount to broadcast. Thus,

the showing of a movie in public will qualify as a broadcast under the Indian Act. So is the

playing of recorded music and sound tracks. Furthermore, broadcasts are not distinguished

from the other related works such as musical works and sound recordings by the Act. It is

therefore suggested that the Indian Act be amended to embrace the definition of „broadcasts’

similar to the provisions of the Nigerian Act.

It is however observed with shock that the U.S. Act does not expressly provide for the

protection of broadcasts, and does not even mention it even by way of definition. It is

suggested that the Act be urgently amended to make provision for the protection of

broadcasts along the line of the Nigerian Act.

It must however be pointed out that the other provisions relating to protectable works as

contained under the English and U.S. Acts such as computer programmes and written tables

shall not be considered in this work, reason being that such works are subsumed under other

works protected under the Nigerian Act, as discussed above.

160

C.D.P.A. Section 6; K Smith, „Streaming Video Case Dismissed‟

http://blogs.library.duke.edu/scholcomm/, 2011/10/04/streaming-video-case-ismissed. accessed

30/11/17.

161

C.R.A.I. Section 2 (d).

50

2.4 Criteria for Copyrightability

For a work to be protected under the jurisdictions under consideration, it must pass some tests

prescribed by law. This is because Copyright law does not protect mere ideas but rather, the

expression of such ideas. For example, the U.S. Act provides that „in no case does Copyright

protection for an original work of authorship extend to any idea, procedure, process, method

of operation, concept, principle or discovery, regardless of the form in which it is described,

explained, illustrated or embodied in such work‟.

162

In the same vein, the Nigeria Act

expressly provides for eligible works which shall be protected as works upon the fulfillment

of certain conditions stipulated in the Act,

163

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 original character; and 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.

164

This provision

incorporates the two fundamental concepts of originality and fixation which also operates in

the other three jurisdictions under consideration.

165

2.4.1 Originality

It has been stated earlier in this research work that the purpose of Copyright law is to confer a

set of limited monopoly rights on an author upon the condition that he must have expended

energy, resources and time in making the work to give it an original character. In other

words, he must show that the work originated from him. He cannot gain these rights by

merely appending his signature or his name to what would otherwise qualify as a common

property. What then is the relevant extent of the skill or labour needed to make a work

original? This question remains intriguing as the Acts under consideration do not define the

162

U.S.C. Section 102 (b); A William, „Has Copyright had its Days‟, International Business Lawyer,

April, 1999, Vol. 27. No.4. p.148.

163

C.R.A.N. Section 1(2).

164

Ibid.

165

U.S.C. Section 102 (a).

51

term „original‟. However, the term „originality‟ in relation to work may be understood to

mean that the work was not copied slavishly; and that the author expended sufficient amount

of labour, judgment and skill in making the work.

166

It has been rightly held that the skill and

judgment involved in gathering and presenting vital information conferred originality on

compilations.

167

This means that the originality contemplated by law does not mean that the

work should necessarily be ingenious, inventive or imaginative, for the law needs not concern

itself with measuring these qualities. Thus, while the divide between ideas and the

expressions of ideas may not always be clear, the law recognizes the right of anyone to create

from pre-existing materials, so long as he invests sufficient skills and labour to give the

resultant work a new character. Hence, the law permits an author to draw upon the available

stock of common knowledge to create his own work and if by co-incidence, two authors

working independently were to come up with identical expressions, each of them would be

entitled to his separate Copyright.

168

This is quite unlike the concept of originality required in

Patent law. Stretching this further, Atkinson opined that:

169

….it is the product of the labour, skill, and capital of one man which

must not be appropriated by another, not the elements, the raw

materials, if one may use the expression, upon which the labour and

skill and capital of the first have been expended. To secure Copyright

for this product, it is necessary that labour, skill and capital should be

expended sufficiently to impart to the product some quality and

character which the raw material did not possess, and which

differentiates the product from the raw material.

In line with this principle, the Court correctly held in WarWick Film Productions Ltd. v

Eisinger & Ors.

170

That a work that contained some unoriginal matter may, nevertheless be

subject of Copyright. However, apart from obvious cases such as a straight line or a circle,

where Copyright are obviously denied, titles, slogans, familiar symbols and common phrases,

166

Bookmakers’ Aftermoon Greybound Services Ltd. v Wilf Gilbert (Staffordshire) Ltd. (1994) F.R.S.p.723.

(Ch.D.).

167

Football League Ltd. v Littlewoods Pools Ltd. (1959) Ch. p.637.

168

Creation Records Ltd. v News Group Newspapers Ltd. (1997) E.M.L.R. p.444;

169

Macmillan & Co Ltd. v Cooper (1923) 93 L.J.P.C. p.188.

170

(1969) 1 Ch. p.508.

52

have been refused protection because there was no evidence of originality.

In Cramp v

Symthson,

171

it was held that mere gathering of existing tables for inclusion in a project diary

does not enjoy Copyright protection.

In Leslie v Young,

172

it was held that the extraction of

information from a general train timetable is not protectable.

It is however noted that Copyright protection is accorded to some simple literary works such

as anthologies, tables and compilation.

173

In Elacno Products Ltd. v Mandops (Agrochemical

Specialists) Ltd.,

174

the Court held that a defendant is at liberty to make use of an information

which was in the public domain but he is not entitled to copy the plaintiffs‟ compilation

thereby making use of the latter‟s skill and judgment and saving himself the trouble and cost

of assembling his own. In the same vein, the Supreme Court of the United States of America

rightly held in Feist Publications v Rural Telephone Services that Copyright protection for

factual compilations is thin and it does not prevent a subsequent compiler from using the

facts contained in another‟s publication to aid in preparing a competing work.

175

It must be pointed out that while the Nigerian and U.S. Acts provide for the requirements of

originality , both the English and Indian Acts make use of the phrase „original‟ as a prefix to

literary, dramatic, musical and artistic works, thereby implying the requirement of

originality.

176

Apart from this, there is nowhere in the latter Acts that originality is required as

a precondition for Copyright protection. It is however submitted that the non express

provision of the requirement of originality as a pre-requisite for Copyright protection, by the

English and Indian Acts is bound to generate confusion and chaos as infringers will thrive in

their illicit business of infringement while proof of violations of Copyright remain elusive. It

171

(1944) A.C. p.329.

172

(1894) A.C. p.353.

173

C.R.A.N. Section 51 ; Minnow, „Library Copyright Liability and Pirating Patrons‟, California

Library Association, http://www.cla-net.org/resources/articles/minow pirating.php. accessed

10/10/17.

174

(1979) F.R.S. p.46.

175

18 USPQ 2d p.1275(1991).

176

C.D.P.A. Section 1; C.R.A.I. Section 13A.

53

is therefore suggested that these Acts be amended to include the express requirement of

original as a pre-condition for Copyright protection as required under the Nigerian Act.

2.4.2 Fixation

According to the Nigerian Act, a literary, musical and artistic work shall not be eligible for

Copyright unless such 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.

177

The Act also uses

the phrase „first fixation‟ in relation to sound recordings and cinematograph films.

178

It is

correct to assume that by the use of this phrase in relation to sound recording and

cinematograph film, it is intended by the drafters of the Act that the requirement of fixation is

to be complied with in order for such works to attract protection under the Act. It is quite

unfortunate that the Act does not define either „fixation‟ or „first fixation‟. However, fixation

may be understood to mean the act of rendering a creation in tangible form or by means of

which it can be perceived by other people.

Similarly, the Nigerian Act mentions the phrase „medium of expression‟ in relation to works

but fails to define same, or enumerate the media of expression contemplated by the Act in

this regard. It merely states that the medium of expression may be one that is presently

known or later to be developed. Thus, the meaning of the phrase is uncertain. Again, the list

of medium of expression contemplated by the Act is endless. The list may include discs,

tapes, video recorders, memory cards, writing on paper, painting on canvas, and any other

medium that may be developed in the future. It also includes the media from which the

materials can be perceived or reproduced either directly with human senses, or indirectly with

the aid of any mechanical, electronic or other devices. The most important fact is that

177

C.R.A.N. Section 1(2) (b).

178

Ibid. Section 51; M Minnow, „Library Digital Table‟, http://www.copyright. com/DigitizationTable. Htm.

Accessed 10/10/17.

54

whatever medium that is used to fix the work must allow for some sustained existence of a

permanent nature. In Abernethy v Hutchinson, the Court refused to grant an injunction to

prevent a publication by unauthorized persons of oral lecture which were delivered by the

plaintiff, partly because he could not produce the notes from which he prepared and delivered

the lectures.

179

In the same vein, the High Court of India granted an injunction against the

defendant where the plaintiff conceived the idea of a Television Reality Show on match

making and spouse selection, on the ground that the idea has been set out in a document and

disclosed to the defendant.

180

Under the England Act, Copyright does not subsist in a literary, dramatic and musical work

unless and until it is recorded, in writing or otherwise.

181

In the same vein, the U.S. Act

expressly provides for both the requirement of originality and fixation as conditions

precedent for the enjoyment of the protected works.

182

The Indian Act however does not

expressly provide for fixation even though the India Courts have been holding that fixation is

required for a work to be protected.

183

It is submitted that the failure of the Indian Act to

provide for the requirement of fixation totally defeats the whole essence and purport of

Copyright as it will be impracticable to prove infringement under this current position. It is

therefore suggested that the Indian Act be amended to provide for fixation of all

Copyrightable work as in the other Acts of the other jurisdictions under consideration.

[

2.4.3 Other Requirements

Problem may arise as to whether to recognize any other formality for the protection of

Copyright works apart from the express provisions of the Acts relating to eligibility of

179

(1825) 47 E.R. p.1313.

180

Cupta v Dasgupta ((2003) E.R.S. p.18.

181

C.D.P.A. Section 1(2).

182

U.S.C. Section 102 (a).

183

Cupta v Dasgupta , supra. p.18.

55

works.

184

The Nigerian Act is clear as to what constitutes eligible works as it does not contain

express reservation or further requirements for the grant of Copyright apart from the

requirement of originality and fixation. This is quite unlike the Law of Trade Marks which

expressly exempts from trademarks protection, any matter the use of which, by reason of its

being likely to deceive or cause confusion is disentitled to protection in a Court of justice or

is contrary to law or morality; or any scandalous design.

185

In Okoyo v Prompt & Quality

Services Nig. Ltd., the plaintiff sued the defendant for the infringement of his Copyright in

some architectural drawings and plans.

186

The defendant raised a preliminary objection

contending that the plaintiff, not being a registered architect under the Architects

(Registration, etc.) Act

187

and as such, incapable of enjoying Copyright protection in his

architectural drawings. In dismissing the preliminary objection, the Court noted that the only

condition for eligibility under the Copyright Act is that the author must be a qualified person;

and that he needed not be a graduate or a registered architect.

It will be recalled that in the history of the development of Copyright in England earlier

discussed in this work, the law required that every published work be entered in the

Stationers‟ Register. By 1637, the printing and importation of any book or copies thereof,

which was not in the register was outlawed.

188

Registration at different points, therefore,

served to confer and assist the enforcement of Copyright in published works in England.

189

The requirement of registration with the Stationers‟ Company prior to publication was

abandoned under the 1942 English Act, although it remained a pre-condition for the

commencement of actions.

190

However, since the Berlin Revision of the Berne Convention in

1908, it has been obligatory for member states of the union to grant Copyright without any

184

Nigeria Copyright Commission v Vitalis Ikukuoha 6 I.P.L.R. p.59.

185

Section 11 of Trade Marks Act (Cap. T 13) Laws of the Federation of Nigeria, 2004.

186

(1996) F.H.C.L.R. p.814

187

(Cap. A19) Laws of the Federation of Nigeria, 2004.

188

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 101.

189

Ibid.

190

Ibid.

56

further requirement of formality. Thus, the exercise and enjoyment of Copyright are not to

be subject of any formality because Copyright is deemed as right flowing naturally from the

very act of creation.

191

This conception prompted the abandonment of all requirements of

notification or registration by the 1911 English Act. This position has since then been

maintained in Nigeria under the 1970, 1988 and 2004 Acts. Till date, the position of the law

is that the rights enjoyed by creators are the natural overflow very act of creation.

192

Another requirement for protection is the deposition of Copyright work. For instance,

owners of Copyright or of the exclusive right of publication in a work published in the United

State shall deposit, within three months after the date of such publication, two complete

copies of the best edition; or if the work is a sound recording, two complete phonorecords of

the best edition, together with any printed or other visually perceptible materials published

with such phonorecords.

193

These copies are to be deposited in the Copyright Office for the

use or disposition of the Library of Congress of United States.

194

The Registrar of Copyright

shall upon request of the depositor and upon payment of the fees prescribed by the Act, issue

a receipt for the deposit. Furthermore, the Registrar of Copyright may by regulation, exempt

some categories of material from the deposit requirements or require deposit of one copy or

phonorecord with respect to any category.

195

The Registrar of Copyright also has the duty to

write authors to make the aforementioned deposit and if they fail to deposit their works

within three months after the demand is received, they will be liable to pay different

categories of fines as specified by the Act.

196

The deposition requirement applies to Nigeria and the United States. However, mere deposit

of a work does not confer Copyright protection on the depositor. This was confirmed by the

191

Article 51(2) of Berne Convention, 1908.

192

Millar v Taylor (1769) 98 E.R. p.201;Wheaton v Peter (1834) 53 U.S. (8 Pet.) p.59

193

U.S.C. Section 407(a).

194

Ibid. Subsection (2) (b).

195

Ibid. Subsection (2) (c).

196

Ibid. Section 107(2) (d).

57

decision of Court in the case of I.C.K. (Directory Publishers) Ltd. v Ekko Delta (Nig.) Ltd. &

Anor.

197

Where it was held that mere deposit of copies of a work with the National Library

under the National Library Act

198

does not confer any right of authorship or Copyright on any

one. In the instant case, the plaintiff who is the publisher of the National Telephone Directory

of Nigeria had deposited a copy of its work with the National Library of Nigeria, upon which

it obtained a delivery acknowledgement slip and the International Standard Book Number.

The Court found out that the plaintiff is not the original author of the content of that

publication, but merely copied nearly all that was put in the directory from documents

supplied by the Federal Ministry of Trade who is a co-defendant in the suit. While denying

the Copyright claim, the Court held that the mere fact of depositing a copy of the directory

with the National Library was irrelevant.

Under the Nigerian Act, the author, publisher, the owner or other persons interested in the

Copyright in any such work may make an application in the prescribed form, accompanied by

the prescribed fee to the Registrar of Copyright for entering particulars of the work in the

Register of Copyright.

199

The Registrar is required to issue certificates in relation to

applications for any artistic work which is capable of being used in relation to any goods or

services to the effect that no trade mark identical with or deceptively similar to such artistic

work has been registered under the Act in the name; or that no application has been made

under the Act for such registration by any person other than the applicant.

200

In all cases, the

Register of Copyrights shall be prima facie evidence of the particulars entered therein and

documents purporting to be copies of any entries therein, or extracts thereform certified and

197

(1977) F.R.C.R. p.346.

198

(Cap. N 56) Laws of the Federation of Nigeria, 2004.

199

C.R.A.N. Section 45 (1).

200

Ibid. Proviso to section 45(1).

58

sealed by the Registrar of Copyright; same shall be admissible in evidence without further

proof or production of the original.

201

It is observed that this requirement contained in the Indian Act is related to the duties

imposed by the Nigerian Act to keep register of all works published by them, including the

names of authors, title, year of publication and the quality of the works produced.

202

The Act

also requires that the names, title of works, the names and addresses of authors, publishers

and owners of Copyright; and such other particulars as may be prescribed in the Register of

Copyright be entered in the Register.

203

It is clear that the Nigerian and India Acts have no

provisions for registration of Copyright works as a condition precedent for the enjoyment of

the Copyright. This is also the case with the English Act. This is indeed commendable as

there is no Copyright target which this requirement is set to achieve. It is suggested that the

U.S. Act be urgently amended to delete this deposition requirement.

Apart from the deposition requirement, it is noted that in compliance with International

Standard in the book industry, the National Library of Nigeria encourages all publications

emanating from Nigeria to obtain a code identifying that particular publication; which code is

either ISBN

204

for books, or ISSN

205

for serials, such as magazines and Journals. The

numbers are represented as a ten or thirteen-digit string of numbers allocated for each edition

of a work and divided into four parts; the country or group of countries;

206

the publisher; the

title; while the fourth which serves as a control digit used to validate the reminder of the

code.

207

The numbers under discussion are administered and controlled in every country by a

201

Ibid. Section 48.

202

C.R.A.I. Section 14.

203

Section 44.

204

Meaning „International Standardized Book Number‟.

205

Meaning „International Standardized Serial Number‟.

206

(978 is for Nigeria).

207

J Asein, Nigerian Copyright Law & Practice (supra) p. 103; P Frank „New Protection and New Rules

for Internet Service Providers‟, Intellectual Property and Technology Law Update,Vol.2 Issue

1. March, 1999, 22.

59

national authority. In Nigeria, they are administered by the National Bibliographic Control

Department of the National Library of Nigeria. These numbers do not on their own, confer

Copyright on creators of works.

It is submitted that since this requirement does not serve any useful purpose either in the

conferment or enforcement of Copyright, the continued observance of same is baseless and

an effort in futility. This may be the reason for the absence of this requirement in the Acts

under consideration.

Another requirement for Copyright protection is Copyright notice. Under the Universal

Copyright Convention, a Copyright notice is requires to be fixed on every work in order to

gain protection in another member country different from the one in which it is published or

made.

208

The Convention provides that any contracting state which under its domestic law,

requires as a condition of Copyright, compliance with formalities such as deposit,

registration, notice, notorial certificates, payment of fees or manufacture or publication in that

contracting state, shall regard these requirements as satisfied with respect to all works

protected in accordance with this Convention and first published outside its territory and the

author of which is not one of its nationals, if from the time of the first publication, all the

copies of the work published with the authority of the author or other Copyright proprietor

bear the symbol (c) accompanied by the name of the Copyright proprietor and the year of first

publication placed in such manner and location as to give reasonable notice of claim of

Copyright.

209

The notice serves as sufficient compliance with and obviates the need to

comply with any other formalities or deposit requirement that may be imposed by the

domestic laws of member countries. Copyright notice is usually placed at the first page of

monographs, the Copyright page of a book, or the foot of a one page work. The phrase „All

Rights Reserved‟ or „Copyright Reserved‟ with or without the Copyright symbols is

208

Article 111 of Universal Copyright Convention, 1952.

209

Ibid.

60

popularly used by authors, although the Copyright notice alone would suffice. Both phrases

derive from the Bueno Aires Convention under which an author who secures Copyright in his

country enjoys Copyright protection in the other Convention countries so long as the notice is

placed on the work.

210

On the other hand, the „c‟ in a circle (c) prescribed under the

Universal Copyright Convention suffices in countries that are members of both the Buenos

Aires Convention and the Universal Copyright Convention.

It must be stressed that although Nigeria is a member of the Universal Copyright Convention,

no provision appears to exist in the Nigerian Copyright Act requiring the mandatory use of

Copyright notice. Nigeria is also a member of the Berne Convention and therefore under an

obligation not to require any formalities as a precondition for the enjoyment of Copyright

protection. Incidentally, virtually all the member countries of the Universal Copyright

Convention are now members of the Berne Convention.

It is worthy to note that while (c) is used in relation to literary works, (p) is used in sound

recordings. Rome Convention provides that where compliance with formalities are required

as a condition for protecting the rights or producers of phonograms or performers in relation

to phonograms, these shall be considered as fulfillment if all the copies of the phonogram in

commerce or their containers bear a notice consisting of the symbol (p), accompanied by the

year and date of first publication, placed in such a manner as to give reasonable notice of the

claim of protection.

211

Accordingly, the Copyright Act of the United States provides that

whenever a work protected under this title is published in the United State or elsewhere by

authority of the Copyright owner, a notice of Copyright as provided by this section may be

placed on publicly distributed copies from which the work can be visually perceived, either

directly or with the aid of a machine or device.

212

In fact, the notice and other requirements

210

Bueno Aires Convention on Literary and Artistic Copyright, 1910.

211

Article 11 of Rome Convention, 1961.

212

U.S.C. Section 40 (a).

61

relating thereto discussed earlier in this work apply to United States mutatis muntandis.

213

Accordingly, the U.S. Act provides that if a notice of Copyright in the form and position

specified by the Act appears on the published copy or copies to which a defendant in a

Copyright infringement suit had access, then no weight shall be given to such a defendant‟s

interposition of a defence based on innocent infringement in mitigation of actual or statutory

damages except as provided in the Act regarding fair use of such works.

214

However, where a

Copyright notice is omitted, a person who innocently infringes Copyright in that work by

reason of that omission before the effective date of the Berne Convention Implementation

Act of 1988 incurs no liability for actual or statutory damages.

215

Again, for any infringing

acts committed before receiving actual notice that registration of the work has been made

under the Act are excusable if the infringer proves that he or she was misled by the omission

of the notice.

216

The Court may allow or disallow recovery of any of the infringer‟s profits

attributable to the infringement, and may enjoin the continuation of the infringing

undertaking; or may require, as a condition for permitting the continuation of the infringing

undertaking, that the infringer pays the Copyright owner a reasonable license fee on an

amount and on terms fixed by the Court.

217

However, the protection granted by the Act

regarding Copyright notice is not affected by the removal, destruction or obliteration of the

notice without the authorization of the Copyright owner, from any publicly distributed copies

or phonorecords.

218

It is submitted that no matter how laudable the provisions of the U.S. Act relating to

Copyright notice may seem, it is a clear basis for the denial of rights of authors who

expended huge sums of money, energy and time to create such works. Little wonder the other

213

Ibid. Subsection (2) (b).

214

Ibid. Sections 401 to 406.

215

Ibid. Section 401 (d

216

Ibid. Section 504

217

Ibid. Section 405 (3) (b).

218

Ibid.

62

Acts under consideration have no such provision. It is therefore suggested that the U.S. Act

be amended to delete the relevant sections embodying the requirement of Copyright notice in

the Act.

It is also required in some jurisdictions that Copyright works be registered before they will be

accorded protection. It is a common misconception to confuse Copyright registration with the

granting of Copyright.

219

Copyright in most countries today is automatic upon fixation in any

tangible medium of expression.

220

This standard is established internationally by a

Convention which most countries of the world are signatories to.

221

Registration may be

required by the domestic laws of these countries before they joined the Berne.

222

It is a well

known fact that the Nigerian Act does not require registration of eligible works as a pre-

condition for protection; though, as a purely administrative initiative, the Nigerian Copyright

Commission has a voluntary Copyright notification scheme under which owners and assigns

of Copyright may voluntarily deposit works with the Nigerian Copyright Commission.

223

Such deposition is not conclusive proof of authorship or ownership of Copyright in such

works.

224

This administrative procedure can only be seen as a certificate attesting to the fact

that such work has been brought to the notice of the Commission. Such deposit may however

have evidentiary value and could be helpful in proving the date of the authorship of such

deposited works.

In the United States, Copyright is registrable. The U.S. Act states that at any time during the

subsistence of the first term of Copyright in any published or unpublished work in which the

Copyright was secured before January 1, 1978, and during the subsistence of any Copyright

219

U.S. Copyright Office, „Copyright Law of the United States‟www.copyright.gov/circs/circl/htm. accessed

10/10/17.

220

Ibid.

221

Berne Convention, 1886.

222

U.S. Copyright Office, „Copyright Law of the United States‟www.copyright.gov/circs/circl/htm. Op.Cit.

223

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 104

224

Ibid.

63

secured on or after the date, the owner of Copyright or of any exclusive right in the work may

obtain registration of the Copyright claim by delivering to the Copyright Office the deposit

specified by this section, together with the application and fee specified by the Act.

225

It

further states that Copyright protection is accorded to every eligible work upon creation even

though such works may be registered and certificate issued in that behalf.

226

However, except

for an action brought for a violation of the rights of an author under the relevant section of the

Act,

and subject to the provisions regarding the rights of attribution and integrity of visual

authors, no civil action for the infringement of the Copyright in any United States work shall

be instituted until pre-registration of the Copyright claim has been made in accordance with

the title.

227

Moreover, no award of statutory damages or attorney‟s fees shall be recovered by

the Copyright owner where such works are not registered within three months of their first

publication.

228

In any case, where the deposit, application, and fees required for protection

have been delivered to the Copyright Office in the proper form and registration has been

refused, the applicant is entitled to institute a civil action for infringement if notice thereof,

with a copy of the complaint is served on the Registrar of Copyrights.

229

The Registrar may if

he so wishes, become a party to the action with respect to the issue of registrability of the

Copyright claim by entering an appearance within sixty days after such service, though the

Registrar‟s failure to become a party shall not deprive the Court of jurisdiction to determine

that issue.

230

The Indian Act provides for the registration of Copyright works in the Register of

Copyright.

231

The Act mandates that a Register of Copyright be kept in the Copyright Office

in which may be entered the names or titles of works and the names and addresses of authors,

225

U.S.C. Section 408 (a).

226

Ibid.Section 410.

227

Ibid.Section 411 (a).

228

Ibid.Section 412.

229

Ibid.

230

Ibid.

231

C.R.A.I. Section 44.

64

publishers and owners of Copyright and such other particulars as may be prescribed.

232

Such

registration must be made upon the application in the prescribed form, accompanied by the

prescribed fee to the Registrar of Copyright by the applicant.

233

Upon receiving such

application in respect of any work, the Registrar of Copyright, may after holding such inquiry

as he may deem fit, enter the particulars of the work in the Register of Copyrights.

234

However, the registration contemplated here is a mere entry of works in the register by

printers as mandated by the Nigerian Act. Thus, Copyright registration is not applicable in

India.

It is submitted with greatest respect that it will serve the best interest of Copyright if authors

are allowed to enjoy the rights attached to their works upon creating those works, whether

such works are registered or unregistered. It is commendable that in Nigeria, India and

England, qualified works automatically enjoy Copyright protection by operation of the

law.

235

It is therefore recommended that the U.S. Act be amended to eliminate the

requirement of registration of Copyrightable works.

232

Ibid.

233

Ibid.Section 45 (l).

234

Ibid.Subsection (2).

235

U.S. Copyright Office, „Copyright Law of the United States‟ www.copyright.gov/circs/circl/htm.

accessed 10/10/17.

65

CHAPTER THREE

3.0 SCOPE OF COPYRIGHT PROTECTION

3.1 Ownership of Copyright

It is necessary to identify with certainty the real creator or author of a work contemplated and

protected by Copyright Laws. This will help to determine who is entitled to enjoy the various

rights granted by Copyright law to owners of qualified works; or who can validly transfer or

transmit such rights. The inquiry as to the identity of the real author will help solve the

problem arising from the computation of the Copyright terms in certain works. For example,

the term of Copyright in literary, artistic, except photographs, or musical work is defined

under the Nigeria Copyright Act with reference to the life of the author of the work.

236

It is

therefore important that the author of the work be first known to help ascertain whether he is

alive or dead. Moreover, moral rights are conferred on the author irrespective of the transfer

or separate existence of the economic rights. For instance, the Nigerian Act provides that:

237

Copyright conferred by sections 2 and 3 of this Act, shall vests

initially in the author.

Notwithstanding subsection (6) of section 11 of this Act, where a

work-

a. is commissioned by a person who is not the author‟s employer

under a contract of service or apprenticeship; or

b. not having been so commissioned, is made in the course of the

author‟s employment, the Copyright shall belong in the first

instance to the author, unless otherwise stipulated in writing under

the contract.

The question now is who is an author? An author may be understood to mean the person who

originated the protectable elements of the work, or the person who created, selected or gathered

together the detailed concepts, data or emotions used in making the work. It is clear from the

definition that ownership of Copyright is not the same as authorship, although both may co-exist

in the same person. For while the author of a work is the creator or maker of the work, the

236

C.R.A.N. First Schedule.

237

Ibid. Section 10.

66

Copyright owner is the person conferred with the right to control the doing of any of the

restricted acts in relation to the Copyright work whether he or she is a human being or an

artificial person. Except the U.S. Act, the Copyright Acts of the jurisdictions under consideration

specific definitions of authorship in the different categories of works protected by them in

virtually the same manner, even though these definitions are in many cases, inadequate.

238

For

example, under the Nigerian Act, „author‟ of literary, artistic or musical works means the creator

of the work; the author in the case of a photographic works is the creator of the work; the author

of a sound recording is the person by whom the arrangements for the making of the sound

recordings were made; the author of a sound recording of a musical work means the artist in

whose name the recording was made, unless in either case, the parties to the making of the sound

recording, provide otherwise by contract; „author‟ in the case of a broadcast transmitted from

within any country, means the person by whom the arrangements of the making or the

transmission from within that country were undertaken.

239

In a case where more than one person made contributions to the creation of the work, the

authorship can be determined by identifying the resultant work to know who was responsible

for ascertaining the necessary skill and labour as a result of which the work attracted

protection under the law.

240

Where all that was contributed by a person is no more than an

idea which is subsequently clothed by another, in his own words or other forms of

expression, the Copyright in the work shall subsist in the person who has clothed the idea so

received in a protectable form.

241

Similarly, if a man employs the services of a ghost writer to

write his biography based on the materials supplied by the subject, the Copyright in the final

product would belong to the ghost writer.

242

In Donoghue v Allied Newspapers Ltd., the

238

C.R.A.I. Sections 2 (d).; C.R.A.N. Sections 51 (1); C.D.P.A. Section 9.

239

C.R.A.N. Section 51 (1).

240

J Asein, Nigerian Copyright Law & Practice (2

nd

Ed, Abuja: Books and Gravel Ltd. 2012) p.116.

241

Ibid.

242

Evans v Hulton & Co. Ltd. (1923-28) Mac. C.C. p.51; Chaplin v Leslie Frewin (Publishers) Ltd. (1966) Ch.

67

defendant‟s newspaper published a series of articles written by its employees, detailing the

racing career of the plaintiff.

243

The plaintiff gave several interviews sharing his experience

and also supplied materials for the articles. Manuscripts for the articles were read over to him

from time to time and he suggested alterations which were not always adopted in the final

version of the articles. The articles were duly published by the defendant who later gave

consent for their use in another publication with the title: „My Racing Secrets by Steve

Donoghue‟ and made to appear as if they had been authorized by the plaintiff. The Court

noted that this raised a statutory presumption of authorship and placed the onus on the

defendant. It nevertheless came to the conclusion that the plaintiff was not the author and

subsequently could not maintain the action. The Court had also held that the mere fact that a

person was the subject matter of a production, in that the story was an incident from his life,

for which he provided the materials, did not make him a joint author if he did not take any

part in producing the express matter which is the original literary work, the subject matter of

Copyright.

244

Special provisions are made under the Acts in relation to ownership of Copyright in

commissioned works and works made in the course of the author‟s employment.

245

It follows

from the above provision that an author can only be divested of his initial ownership of

Copyright by the prior written contract entered into between him and his employer or the

commissioner of the work in that regard. This can be achieved through a „vesting‟ clause in

the contract of employment or contract of commission; or the parties may enter into a

separate vesting agreement supplemental to an existing contract of employment or

commission.

246

This is also the position in the United States.

247

It was also held in National

p.71.

243

(1938) Ch. p.106.

244

Evans v Hulton & Co. Ltd. supra. p.71.

245

C.R.A.N. Sections 2; U.S.C. Section 20 (b).

246

Joseph Ikhuoria v Campaign Services Ltd. & Anor. [1986] F.H.C.L.R. p.308; C. P. L. Industries Ltd.

v Glaxo Smithkline Consumer Nigeria P.L.C. & Anor. I.P.L.R. p.247.

68

Bank (Nig) Ltd. v Compagne Franssist that an author who enters into an agreement to confer

ownership of Copyright on another could be compelled in equity to make good his promise

on the ground that equity looks on that as done which ought to be done.

248

This is because

equity imputes an intent to fulfill and obligation.

249

The Court may also declare an implied

trust where for instance, an employee creates a work in the course of his employment using

the time and materials of his employer. In Antocks Laim Ltd. v 1. Bloohn Ltd., the Court

declared a trust in favour of the company and held that although the managing director owned

the Copyright in the drawings he made, the company was entitled to have them assigned to

it.

250

Similarly, in Merchant Adventures Ltd. v. M. Grew & Co. Ltd., the Court was of the

view that since the defendant had been paid for the work he produced, it would be inequitable

for him to retain the Copyright therein; and that the plaintiff was entitled in equity to the

assignment of the Copyright to him under the principles of implied trust.

251

It has been held

that the requirement that an agreement to vest the initial ownership of Copyright in a work on

another person other than the author under the Nigerian Act should be in writing and that this

is in accord with the general principle that no assignment of Copyright and no exclusive

license to do an act the doing of which is controlled by Copyright shall have effect unless it is

in writing.

252

It is the law that where a person commissioned to do a work sub-contracts the whole or a part

thereof, the person who ultimately pays for the commission is the owner of Copyright in the

work.

253

It should be noted that while an independent contractor is one employed under a

contract of services, his employee counterpart in the course of his employment is employed

under a contract for service. Although the distinction between the two types of employment is

247

U.S.C. Section 201 (b).

248

(1948) 19 N.L.R. p.4.

249

Ojule v Okoya (1968) 2 All N.L.R. p.349 at p.388.

250

(1971) F.S.R. p.490.

251

(1971) 2 All E.R. p.675.

252

Adenuga v Ilesanmi & Sons (Nig) Ltd. [1991] NWLR (Pt. 189) p.82 at p.98.

253

James Arnold & Co. Ltd. v Miafern Ltd. (1980) R.P.C. p.397.

69

often very tenuous, decided authorities appear to have identified the basic difference between

them. In Stevenson Jordan & Harrison Ltd. v Macdonald & Evans Ltd., lord Denning

propounded what has come to be known as the „organizational test‟ as follows:

254

One feature which seems to run through the instances is that under a

contract of service, a man is employed as part of the business and his work

is done as an integral part of the business, whereas under a contract for

service, his work although done for the business is not integrated into it,

but is only accessory to it.

It is noted that special provisions are made by the Nigerian Act in respect of the ownership of

Copyright in a literary, artistic or musical work made by an author in the course of his

employment by the proprietor of a newspaper, magazine or similar periodical under a

contract of service or apprenticeship. In such a situation, Copyright vests initially in the

proprietor in the absence of any agreement to the contrary, provided that the Copyright

relates to the publication of the work in „any‟ newspaper, magazine or similar periodical or to

the reproduction published.

255

In this regard, the work must be made for the purpose of such

publication in a newspaper, magazine or similar periodicals. This means that apart from the

proprietor‟s right in this connection, all other rights in the work such as the right to control

the dramatization, exhibition or performance of such work belong to the author in the first

instance.

It is apposite to state at this juncture that the concept of ownership of Copyright in

commissioned work is the same in both England and India

256

except that the English Act

expressly states that the section under consideration does not apply to Crown Copyright,

Parliamentary Copyright, or Copyright relating to certain International Organizations

mentioned by the Act.

257

254

(1952) 1 L.T.R. p.101.

255

C.R.A.N. Section 10(3).

256

C.R.A.I. Section 17; C.D.P.A. Section 11.

257

C.D.P.A. Section 11 (3).

70

Situations may arise where a work is created by more than one person. For example, where

the work was brought about through the combined efforts of more than one person. Under

such circumstances, there is need to determine whether all persons who are so involved are

joint authors. The Nigerian Act does not define „co-authorship‟ but inference can be drawn

from the Act to the effect that the phrase co-owners are persons who share a joint interest in

the whole or any part of a Copyright, or if they have interest in various Copyrights, in a

composite production.

258

It should be noted that although Act uses the phrase „co-owners‟,

reference is made in other sections to joint authors. This simply shows that the phrases are

synonymous. The meaning and the definition of these terms are similar in the Acts under

consideration.

259

Once a person claiming joint authorship of a work establishes that he made

significant and original contributions to the creation of the work and that he had done so

pursuant to a common design, the Court will hold that he is a joint author.

260

It has been

rightly held that a person does not become a joint author of a work by merely suggesting or

making constructive criticisms towards the improvement of a play.

261

Ordinarily, a part owner of Copyright does not have the power to assign or grant a license

with respect to a work of joint authorship without the concurrence of the other co-owner.

262

This is because such a joint author is deemed not to be in a position to do the acts reserved for

the Copyright owner without the concurrence of the co-author; otherwise he would be in

breach of Copyright.

263

The Nigerian Act provides that an assignment or license granted by

one Copyright owner shall have effect as if granted by his co-owner also, and, subject to any

258

C.R.A.N. Section 11 (6).

259

C.R.A.N. Section 51 (1); U.S.C. section 101; C.R.A.I. Section 2 (Z); C.D.P.A. Section 10A (1).

260

Godfrey v Lees [1995] E.M.L.R. p.307.

261

Wiseman v Weindenfeld & Nicholson Ltd. [1985] F.S.R. p.525.

262

Powel v Head [1879] 12 Ch. D. p.686.

263

Cescinky v George Routledge & Sons Ltd. (1916) 2 K.B. p.325.

71

contract between them, fees received by the grantors shall be divided equitably between all

the co-owners.

264

In the case of compilation, the compiler could qualify as the author of the work even though

he did not make any direct written contribution to the compilation.

265

Such a compilation

must satisfy the basic requirements of eligibility, including originality; and must not be a

mere copy.

266

It has been rightly held that though the compilers are not the original authors of

the work, this should not be viewed as authority for denying authorship to them.

267

However,

slightly different rules apply to composite works such as Encyclopedias or collection of

Essays where separate Copyrights exist in the work and in each of the components works

respectively. In such cases, the person responsible for the entire work, eg, the general editor

will pass as the author of such work as a whole, while each contributor remains the author of

his own separate contribution with distinct Copyright.

268

On the other hand, a work may be a derivate or an adaptation of a pre-existing work. The

resultant work will qualify for separate Copyright protection as such if sufficient skill and

labour has been invested in its production. In that case, the author of the new work will be the

person who has brought about the new work through his skill and labour.

269

Similarly, where

a computer is used to produce a copyrightable work, the computer is no more a mere tool by

which the work is produced to instructions. The Copyright in the work shall belong to the

persons that gave instructions to the computer.

270

However, where the aspect of the work was

entirely created by the computer without human intervention, the English Act expressly

provides that the author should be taken to be the person by whom the arrangements for the

264

C.R.A.N. Section 11(5).

265

Copinger and Skone on copyright quoted by Asein, from p.119.

266

I.C.I.C.(Directory Publishers) Ltd. Ekko (Nig.) Ltd. (1977)F.R.C.R. p.346.

267

Black Ltd. v Claude Stacey Ltd. (1929) Ch. p.177.

268

Barfield v Nicholson (1824) 2 Sim &St. p.1.

269

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.116.

270

Express Newspapers Plc. v. Liverpool Daily Post and Echo Plc. (1985) F.S.R. p.306.

72

creation of the work were undertaken.

271

It is only the English Act that contains this laudible

provision. It is suggested that this provision be incorporated into the other Acts of the

jurisdictions under consideration through amendment.

Other classes of Copyright owners are the heirs, assignees and licensees of Copyright.

Copyright, being a property is transmissible by assignment, by testamentary disposition, or

by operation of the law as movable property.

272

It has been stressed that there is a clear

difference between the Copyright in a work and the materials object embodying the right.

273

The transfer of any material object, including the copy or phonorecord in which the work is

first fixed does not in itself convey any rights in the Copyrighted work embodied in the

object; nor in the absence of an agreement does any transfer of ownership of a Copyright or

any exclusive rights under a Copyright convey proprietary right in any material object.

274

It

has been held that by virtue of the provisions of the Nigerian Act, it is the right of every

Nigerian to make a will and to freely dispose of his property irrespective of his personal

law.

275

Copyright can therefore be disposed through testamentary disposition. Since the

testamentary disposition of property only takes effect upon the death of the testator rather

than the date probate was granted, Copyright so granted only passes to the heir upon the

death of the testator. However, where the author died intestate, Copyright owned by him

would be passed to his heirs in accordance with the personal law of the deceased.

276

If the

deceased contracted a marriage under the Act, his movable properties including Copyright,

will pass in accordance with the general rules of intestacy under the Act. But, where he

271

C.D.P.A. Section 9(3).

272

C.R.A.N. Section 11(1); U.S.C. Section 201 (d) (i).

273

U.S.C. Section 202.

274

Ibid.

275

Yinusa v Adesubokan (1971) N.N.L.R. p.77.

276

C.R.A.N. Section 11(8).

73

contracted a marriage under the native law and customs, he is subject to the rules of intestacy

and succession applicable under customary law.

277

As in the case of testamentary disposition of Copyright, the law recognizes the transfer of

Copyright or any of the constituent rights by way of assignment. An assignment involves a

transfer of ownership, whether partial or limited, from the assignor to the assignee.

278

An

assignment must be given or must have been made by the owner of the Copyright or with his

specific or general authority.

279

This means that the law of agency will be applicable when

determining a case of assignment of Copyright with the authority of the owner. Thus, an

agent

who acted in excess of the authority conferred on him by his principal will not succeed in

assigning rights not within the scope of the authority conferred on him. On the other hand,

where a partial assignment of Copyright has been made to an assignee, he is deemed to be the

owner of the Copyright mentioned in the assignment and therefore entitled to take the

necessary steps to prevent an infringement of the rights so conferred on him.

280

A license is a valid permission to do certain things or acts which otherwise would have

constituted infringement of the Copyright in a work owned by the creator of such work. The

position of an assignee is radically different from that of an exclusive licensee under the

Nigerian Act. Although the Act renders an infringement actionably by the owner/assignee or

exclusive licensee of the Copyright, the assignee‟s position is superior where concurrent

rights of action in the subject matter of infringement vest in both the owner of the Copyright

and the exclusive licensee.

281

In such a case, the owner or the exclusive licensee is required

277

Dawodu v Danmole (1962) 1 All N.L.R. p.702.

278

C.R.A.N. Section 15(1).

279

Beloff v Pressdram Ltd. (1973) 1 All ER. p.241.

280

British Actors Film Co. Ltd. v Glover ({1918} I.K.B. p.299.

281

C.R.A.N. section 16 (1).

74

by law, with the leave of Court, to join the other as a plaintiff or defendant in the action.

282

It

is thus very clear that an assignee steps into the position of the Copyright owner upon the

assignment of the right to him, while an exclusive license does not.

It must be pointed out that the formal requirements for the transfer of interest in case of

assignment and licenses are clearly set out by law. According to the Nigerian, Indian and

U.S. Acts, no assignment of Copyright, and no exclusive license to do an act the doing of

which is controlled by Copyright shall have effect unless it is in writing.

283

Thus, a verbal

assignment of Copyright to an assignee by the owner is ineffective. However, any assignment

that does not satisfy the formal requirements stipulated by law may still be upheld as an

equitable assignment; though it will be inferior to a subsequent legal assignment and will not

bind an innocent purchaser for value who takes in good faith without notice; as well as any

person deriving title from him.

284

It is interesting to note that the Nigerian, English and Indian Acts permit the granting of an

assignment or license in respect of a future work or an existing work in which Copyright does

not yet subsist; and the prospective Copyright in any such work would be transmissible by

operation of the law.

285

It is intended that the legal ownership of Copyright in such work

automatically vests in the assignee from the very moment it comes into being. Such

Copyright can be assigned.

286

This provision is the opposite of the common law rule to the

effect that the assignment of a work which is yet to come into existence would be no more

than equitable assignment or at best, an agreement to assign.

287

It is submitted that the

recognition of assignment of future Copyright is a welcome development which goes to

282

Ibid. Section 16(2).

283

C.R.A.N. Section 11(3); C.R.A.I. Section 19(1); U.S.C. section 204(3).

284

Roban Jig & Jool Co. Ltd. v Taylor (1979) F.S.R. p.130, at p.143.

285

C.R.A.N. Section 11 (7); C.D.P.A. Section 91; C.R.A.I. Section 18 (1).

286

C.D.P.A. Section 91; C.R.A.I. Section 18 (1).

287

Wah Sang v Takmay [1980] F.S.R. p.303; Performing Right Society Ltd. v London Theatre of Varieties

Ltd.[1924] A.C. p.1

75

substantiate the precepts of intellectual property law. It is very unfortunate that the U.S. Act

has no such provision. It is therefore suggested that the U.S. Act be urgently amended to

incorporate this laudable concept.

It is noted that apart from the requirement of formality under the Acts regarding assignment

and exclusive license, there is need to comply with the general rules of the law of contract

particularly as it concerns proper execution;

288

capacity;

289

consideration;

290

and permissible

limits of fairness.

291

It must be stated that even though an assignee is free to assign or grant a license unless

expressly prohibited under a contract;

292

a licensee is generally disallowed from transferring

where there is some elements of personal rights, skills or reputation involved in the grant of

the license to him.

293

It is obvious that the Acts under consideration do not demand or dictate

any particular phrase or words to be use to effect an assignment or exclusive license. Thus,

the Court will have to decide if the words used by the parties are capable of being construed

as an assignment or as an exclusive license depending on the circumstances of each and

peculiarity of each case. The Court will resort to the rules of construction in determining the

nature and extent of the rights assigned or licensed.

294

On the other hand, a non exclusive license may be written, oral or inferred from the conduct

of the parties.

295

It has also been judicially confirmed that a non exclusive license does not

pass any interest but only makes an action lawful which without it would have been

288

Wah Sang v Takmay spura. p.303.

289

Chaplin v Leslie Frewin (Publishers) Ltd. {1960} Ch. p.71.

290

A. Schroeder Music Publishing Co. Ltd. v Macaulay {1974} 3 All E.R. p.616 (HL).

291

Messager v B.B.C. [1929] A.C. p.151 at p.156.

292

Hole v Bradbury {1879} 12 Ch. D. p.886.

293

Redwood Music Ltd. v B. Feldman & Co. Ltd. & Ors. {1979} R.P.C. p.385.

294

Hospital for Sick Children v Walt Disney Productions Inc. [1966] I W.L.R. p.1055.

295

Blair v Candiware [1980] F.S.R. p.352.

76

unlawful.

296

Like an exclusive licensee, a non exclusive licensee may not assign or grant

such license if his license was based on personal consideration or his own reputation.

297

Therefore, since a non exclusive licensee does not have legal interest in the right, he cannot

maintain an action without joining the owner of Copyright as a party in an infringement suit.

298

In Banier v News Group Newspaper Ltd.,

299

the defendant claimed in its defence that it

was the practice of newspapers in anticipation of a subsequent grant with retrospective effect,

to publish Copyright photographs before obtaining a license if the same photographs had

already been published by another newspaper.

In rejecting this claim, the Court held that such

a practice may have been one which they normally got away with, but it was plainly

unjustified and unlawful.

It is interesting to note that transmission of Copyright by way of conveyance, operation of the

Law, bequeathal by will, as discussed under the Nigerian Act are virtually the same in the

other jurisdictions under consideration.

300

However, it must be pointed out that while it is

required under the English Act that only an exclusive license must be in writing;

301

under the

U.S. and Indian Acts, only transfer must be evidenced in writing.

302

The license granted by

the owner of a future Copyright to an assignee is binding on his successor-in-title, except

where there is a purchaser in good faith for valuable consideration and without notice.

303

Similarly, the Acts under consideration recognize the concept of transmission, assignment

and licenses as contained under the Nigerian Act.

304

The assignment contemplated herein may

be whole or partial.

305

296

Frisby v BBC [1967] Ch. p.932.

297

Ibid.

298

Ibid.

299

[1997] F.S.R. p.812.

300

C.D.P.A. Sections 90-93; C.R.A.N. Sections 11 (2); C.D.P.A. Section 91 (2); C.R.A.I. Section 18;

U.S.C. Section 201 (d) (2).

301

C.D.P.A. Section 92.

302

C.D.P.A. Section 91; C.R.A.I. Section 18.

303

C.R.A.I. Sections 18 &30; U.S.C. Section 201 (d) & 204 (a); C.R.A.N. Section 20 (1); C.R.A.I. Sections 19.

304

C.D.P.A. Sections 91 (3); C.R.A.I. Section 18 &30; U.S.C. Section 205 (e); C.R.A.N. Section 11 (4).

305

C.R.A.N. Section 6.

77

3.2 Rights Conferred by Copyright

Copyright consists of the exclusive rights of the owner to control the doing of certain

specified acts in respect of the copyrightable work subject to certain exceptions. The exact

nature of the rights conferred on Copyright owner depends on the type of work involved. The

Copyright Act of Nigeria provides that:

306

subject to the exceptions specified in the Second Schedule to the Act,

Copyright in a work shall be the exclusive right to control the doing in

Nigeria of any of the following Acts, that is-

a. in the case of a literary or musical work, to do and authorize the

doing of any of the following acts:

i. to reproduce the work in any material form;

ii. to publish the work;

iii. to perform the work in public;

iv. to produce, reproduce, perform or publish any translation of the

work;

v. to make any cinematograph film or a record in respect of the

work;

vi. to distribute to the public, for commercial purposes, copies of

the work, by way of rental, to lease, hire, loan, or similar

arrangement;

vii. to broadcast or communicate the work to the public by a loud

speaker or any other similar device;

viii. to make any adaptation of the work;

ix. to do in relation to a translation or an adaptation of the work,

any of the acts specified in sub-paragraphs (i)-(vii) of this

paragraph;

(b) In the case of an artistic work, to do or authorize the doing of any

of the following acts, that is-

i. to reproduce the work in any material form;

ii. to publish the work;

iii. to include the work in any cinematograph film;

iv. to make any adaptation of the work;

306

Ibid.

78

v. do in relation to an adaptation of the work any of the acts

specified in sub-paragraphs (i) to (iii) of this paragraph;

(c) In the case of cinematograph film, to do or authorize the doing of

any of the following acts, that is-

i. to make a copy of the film;

ii. to cause the film, in so far as it consists of visual images to be

seen in public and, in so far as it consists of sounds, to be heard

in the public;

iii. to make any record embodying the recording in any part of the

sound track associated with the film by utilizing such sound

track;

iv. to distribute to the public, for commercial purposes copies of

the work, by way of rental, lease, hire, loan or similar

arrangement.

The Act specifically provides that the right of the owner to control the doing of any of the

above mentioned activities extends to the whole or a substantial part of the work either in its

original form, or in any form recognizably derived from the originals.

307

It is further provides

that Copyright in a work of architecture shall also include the exclusive right to control the

erection of any building which reproduces the whole or a substantial part of the work either in

its original form, or in any form recognizable derived from the original, but not the right to

control the re-construction in the same style as the original of a building to which the

Copyright relates.

308

The Act also provides that Copyright in a sound recording shall be the

exclusive right to control in Nigeria, the direct or indirect reproduction, broadcasting or

communication to the public of the whole or a substantial part of the recording either in its

original form or in any form recognizably derived from the original; the distribution to the

public for commercial purposes of copies of the work by way of rental, lease, hire, loan or

similar arrangement.

309

In the same vein, the Act provides that Copyright in broadcast shall

307

Ibid. Subsection (2).

308

Ibid. Section 8.

309

Ibid.

79

be the exclusive right to control the doing in Nigeria any of the following acts:

310

the

recording and the re-broadcasting of the whole or a substantial part of the broadcast;

a. the communication to the public of the whole or a substantial part

of a television broadcast, either in its original form or in any form

recognizably derived from the original; and

b. the distribution to the public for commercial purposes, of copies of

the work, by way of rental, lease, hire, loan or similar

arrangement.

An owner of a Copyright in television broadcast shall also have the exclusive right to control

the taking of still photographs from the broadcast.

311

It therefore follows that any person who

without the license or authorization of the Copyright owner, does or causes any other person

to do any of the acts enumerated above will be liable for infringement of Copyright.

312

It can be gleaned from the provisions of the Act stated above that the primary rights granted

to Copyright owners consist mainly of the exclusive rights of reproduction, publication,

performance, adaptation, commercial distribution and broadcasting. It is clear that not all

forms of exploitations mentioned by the Act are appropriate for every kind of work. For

while a literary or musical work may be the subject of public performance, artistic works are

not.

313

It is also noted that the Act employed different expressions as the context demands

which suggest the same meaning. For example, literary works and cinematograph films are

protected against unauthorized reproduction. In the case of literary works, the rights

expressed are the rights to reproduce the work in any material form.

It must also be pointed out that the rights conferred on authors by Copyright are not restricted

to the exploitation of their works as discussed above. There are some other rights enjoyed by

authors such as the right to claim authorship, right to privacy, right to share in the proceeds of

sale/right to remuneration.

310

Ibid. Section 15 (1).

311

J Asein, Nigerian Copyright Law & Practice Op. Cit. p.172.

312

C.R.A.I. Section 14; U.S.C. Section 106; C.D.P.A. Section 16.

313

C.R.A.N. Section 6.

80

It is noted that there is harmony in the meaning and purport of the exploitations of

copyrightable works in all the other jurisdictions under study.

314

Thus, in discussing these

forms of exploitations as shall be done below, only the Nigerian Act shall be mostly

considered.

3.2.1 Publication of Literary and Musical Works

Although literary and musical works are treated together and defined to have the same nature

and scope, all the rights reserved for the exclusive control of the Copyright owner do not

apply equally to both.

315

For instance, the right conferred in respect of a literary or musical

work includes the publication or performance of a translation of the work.

316

It is

inconceivable that a musical work can be translated. The only part of the work that can be

translated are the lyrics which itself, constitutes a literary work different from the

accompanying music. This difference notwithstanding, it is safer to go into the consideration

of the rights granted to a Copyright owner bit by bit.

The first right granted to a Copyright owner of a literary or musical work is the right to

publish the work. According to the Nigerian Act, a work shall be deemed to have been

published if copies of it have been made available in a manner sufficient to render the work

accessible to the public.

317

Where a part of the work is published, that part so published is

treated for the purposes of the Act as a separate work.

318

Publication here involves the

entrepreneurial activity of producing and distributing copies of a work in the sense of a

„music publisher‟ or „book publisher‟.

319

Asien rightly submitted that publication may or

may not involve prior reproduction of the same person; and that what really matters is the

314

Ibid. Subsection (1) (a) (iv).

315

Ibid. Section 51 (2) (A).

316

Ibid. Paragraph (b).

317

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.172.

318

Ibid.

319

Ibid.

81

making of the work available to the public either for sale or gratuitously.

320

In Adenuga v

Ilesanmi Press & Sons (Nig.) Ltd., the Appellant had in 1977 submitted the manuscript of a

book to the Respondent without expressly authorizing its publication, although he consented

to its being printed.

321

He even corrected the page proofs of the manuscripts but appeared not

to have heard from the respondent again until a few years later when he discovered that the

respondent had printed the book and that copies of it were being sold to the public. The Court

of Appeal expressed the opinion that a person might have the authority to publish a book by

another without infringing the Copyright of that person if there had been an assignment of the

Copyright to him, or a grant of an exclusive or non-exclusive license by the owner of the

Copyright. Since the respondent in this case was both a publisher and a printer, the Court held

that all that the appellant did could be construed as evidence that he requested the book to be

printed rather than published, that is to say, an implied grant of license to reproduce rather

than one authorizing publication. The Court rightly held that the defendant was liable for

Copyright infringement because the publication was unauthorized.

322

This decision confirms

that in determining whether the defendant is liable for infringement, there may be no need for

actual distribution of the work. There is also no need to establish sale of the work so

published to the public in order to incur actual liability. Merely giving away copies of the

work to the public is sufficient publication. Thus, the sale to the public or display, and or free

gift of copies of a work constitute the commonest acts of publication.

323

3.2.2 Reproduction of Literary and Musical Works

Reproduction is the making of one or more copies of a literary, musical or artistic work,

cinematograph film or sound recording.

324

„Copy‟ means reproduction in written form, in the

320

Ibid.

321

[1991] 5 N.W.L.R. p.82.

322

Ibid.

323

Merchant Adventures Ltd. v M Crew & Co. Ltd. [1972] 1 Ch. p.242.

324

C.R.A.N. Section 51 (1).

82

form of a recording or cinematograph film, or in any other material form, so however that an

object shall not be taken to be a copy of an architectural work unless the object is a building

or model.

325

It is crystal clear from the above definition that the reproduction of a literary

work for purposes of the Act, needs not be in the conventional written format, although it

must be in a material form. Accordingly, the Court held in Kabushiki Kaisha Sony Computer

Entertainment Inc. v Ball that a RAM chip containing a Copyright work constitutes a

reproduction in a material form under the current English Copyright Act and that the mere

fact that it did not retain the Copyright protected data for more than a very short time was of

no significance.

326

This authority buttresses the fact that a temporary storage or downloading

a Copyright work with a computer through its Random Access Memory

327

would constitute

reproduction within the meaning of the Act.

3.2.3 Public Performance, Broadcasting or Communication to the Public of Literary

and Musical Works

The Nigerian Act does not define „public performance‟ but it states that „communication to

the public‟ includes, in addition to any live performance or delivery, any mode of visual or

acoustic presentation, but does not include a broadcast or re-broadcast.

328

The Act does not

also define the term „public‟ which is the operating word with respect to performance of work

under consideration. However, the Courts have attempted to lay down general guidelines

recognizing that the determination of what amounts to a public performance must necessarily

be a question of fact with no fixed criteria. In Harms Ltd & Chapel Ltd. v Martans Club

Ltd.,

329

the Court considered the performance of the plaintiffs‟ musical work played by an

Orchestra at a club established primarily for dining and dancing. The audience comprised one

hundred and fifty members and fifty guests, although the club had a total membership of one

325

Ibid.

326

[2004] E.C.D.R. p.33 (Ch. D).

327

Hereinafter referred to as „RAM‟.

328

C.R.A.N. Section 51 (1).

329

[1927] I Ch. p.526.

83

thousand, eight hundred ladies and gentlemen of high social standing. By the rules of the

club, there was no limit on the number of guests a member could introduce, but visitors

introduced after 9pm had to pay 10 shillings. The Court held that there had been an infringing

performance in public of the work in question, noting that the audience at the club comprises

a number of people belonging to the class likely to go to a similar performance if an entrance

fee were required. In Performing Right Society Ltd. v Hauthorns Hotel Ltd.,

330

the Court

considered the performance of a musical work in a lounge of a residential hotel, the audience

being mainly resident guests. The plaintiff‟s official had been admitted to dine at the hotel in

the company of a friend and subsequently they both listened to the music. The defendant

contested the claim of Copyright infringement arguing that the performance was of a

domestic or quasi-domestic nature and not public. The Court rejected this claim on the

ground that any member of the public so desiring would have been admitted to dine and go

into the lounge to listen to the performance of the music. The Court further held that the

performance was therefore open to any member of the public and hence, a public

performance.

331

In Performing Right Society Ltd. v Hammond’s Bradford Brewery Co. Ltd.,

332

what came up for consideration was whether the use of a radio receiver and loudspeaker

to receive live broadcast of a musical show amounted to public performance.

The plaintiff

had a licensing agreement with the British Broadcasting Corporation authorizing the latter to

broadcast its musical works for domestic and private reception. The defendant had its radio

set and recorder installed for wider audibility; this in the view of the trial Court, amounted to

giving or authorizing a performance within the meaning of Copyright Act of England, 1911.

The license from the British Broadcasting Corporation did not cover making the musical

work audible to members of the public through a radio receiver and loudspeaker. The English

Court of Appeal upheld this view expressing the opinion that the reception at the hotel

330

[1933] Ch. p.855.

331

Ibid.

332

[1934] I Ch. p.121.

84

constituted a separate performance and could not be seen as a mere extension of the cinema

audience. It further held that the defendant has by its device, expanded the audience and since

these people were outside its domestic circle, the performance was an infringing public

performance.

333

In Performing Right Society Ltd. v Camelo,

the defendant‟s radio set was in a

living room adjoining another room which was being used as a public restaurant.

334

Evidence

showed that the set was often loud enough to be heard in the restaurant and that the plaintiff

had complained against this as an unauthorized performance. It was also shown that

customers paid attention to the music from the set. The Court rightly upheld the plaintiff‟s

claim and held that the performance, although in a private living room, extended beyond and

was audible in the public part of the building.

It is submitted that in determining whether a public performance has occurred, the character

of the audience is crucial, although the Courts are free to approach each case bearing in mind

the surrounding circumstances. In Turner Electrical Instrument Ltd. v Performing Right

Society Ltd.,

335

the proprietor of a factory, in order to prevent boredom and increase the

efficiency and output of his workers, relayed to the workers programmes of music broadcast

by the British Broadcasting Corporation and also played gramophone records which were

replayed by loudspeakers in the factory. The audience comprised only the workers as

strangers were excluded from the factory. In determining the test to be applied in a case of

this nature, the honourable Court restated its earlier view in Jennings v Stephens

336

that the

primary consideration in determining the character of an audience was the relationship of the

audience to the owner of the Copyright, rather than the relationship of the audience to the

persons allegedly performing the music publicly. The Court stated that the monopoly

conferred by the Copyright Act was intended to be real and not an illusory right of property.

333

Buck v Jewell. La Salle Reality Co. [1931] 283 U.S p.191.

334

[1936] 3 All E.R. p.557.

335

[1943] I Ch. p.167.

336

[1936] Ch. p.469.

85

It is therefore important to consider whether a particular performance, the character of which

is in issue, is of a kind calculated to whittle down that monopoly to any substantial extent.

The Court also considered the argument on the implication of this conclusion for the

thousands of factories where music is similarly performed for millions of employees. It

reasoned that to hold otherwise would mean that employers would be giving to their

employees without payment, the fruit of the brains, skill, imagination and taste of the author,

or the property of his successor-in-title without paying any remuneration. By so doing, the

employer would be getting the advantage of that work, taste and skill in obtaining increased

or improved output at the expense of the author or his successor-in-title. Furthermore, in

Performing Right Society Ltd. v Rangers F.C. Supporters Club,

337

the Court considered the

relationship between the audience and the Copyright owner in a case where the performance

had been in a private club which was not established for profit.

The membership of the club

was selective and there was no invitation to the public. Based on this fact, the Court of first

instance was of the opinion that the entertainment provided had the favour of a private rather

than a public performance. In reversing this decision, the English Court of Appeal rightly

held that the performance was in public and went ahead to reason that although the club made

no profit, the circumstances were more similar to a public place like a dance hall or club, than

a domestic environment. In Performing Right Society Ltd. v Harlequin Record Shops Ltd.,

338

the defendants played music in their record shops purportedly in order to promote sales of the

records.

In defending the allegation of infringement through public performance, the

defendant contended that the public performance benefited the authors through increased

sales and royalties. It was also the contention of the defendants that their actions did not

adversely affect the composer, nor did it interfere with their proprietary rights and

particularly, that the performance was not given to the „owners public‟. The Court rightly

337

[1927] 1 Ch. p.526.

338

[1979] 2 All E.R. p.828.

86

rejected these arguments and stressed that the decisive factor in these cases is the character of

the audience. In the opinion of the Court, a performance given to an audience consisting of

persons present in a shop which the public at large are permitted, and indeed encouraged, to

enter without payment or invitation and with a view to increasing the shop owner‟s profit can

only properly be described as a performance in public.

3.2.4 Adaptation and Translations of Literary and Musical works

The exploitative rights of the Copyright owner in a literary or musical work to control the

production, reproduction, performance or publishing of the work do not end with the original

work itself. The owner also has the exclusive right to control the production, reproduction,

performance and publishing of any translated version of the work; or the right to do in

relation to any translation or any adaptation of the work, any of the acts prohibited in relation

to the original work.

339

Adaptation simply means the modification of an existing work from

one genre of work to another; and may involve the alteration of the composition of work as,

for instance, the adaptation of a story to a film script or play.

340

An adaptation will

necessarily differ from the original work in some respects as in a case where a novel is

dramatized without taking the exact words from the novel if the incidents are reproduced; or

where a story is adapted into a ballet.

341

Thus, the concept of adaptation does not derogate

from the point earlier made that the law does not protect mere ideas. It also confirms the thin

divide between the expressions of ideas and the ideas themselves, particularly with reference

to the plot of a story.

The Copyright in any adaptation of a literary or musical work is vested on the person who

made such adaptation, whether or not he is the author of the original work, so long as that

adaptation qualifies for protection under the Act. For example, if a man writes a script

339

C.R.A.N. Section 6 (1) (a) (iv).

340

Ibid. Section 51 (1).

341

Holland v Vivian Van Damm Productions Ltd. [1935-45] Mac. C.C. p.69.

87

adapting Flora Nwapa‟s novel „Efuru‟ for a movie or screen play, Copyright in such script

resides in the maker of such work so long as the adapted work fulfils the elements of

originality, fixation, and author or work connection principle under the Act. But if such

adaptation is made without the consent of the author of the original work, it will constitute an

infringement of the Copyright in such original work. It should also be noted that a second

derivative work may be made from an adaptation of an original work. For example, a movie

produced from a script made from a novel qualifies as such and is protectable as a

cinematograph film. Copyright in such work resides in the maker of the film who would

ordinarily have obtained the consent of the script writer to make such further adaptation.

In any event, the protection accorded to a derivative work extends only to the original

contribution of the maker who has no right to authorize someone else to use those parts of the

derivative work that were taken from the original. It needs not be stressed that the Copyright

owner in derivative works also enjoys the entire rights incidental to Copyright as has already

been discussed in this work in relation to original works.

3.2.5 Commercial Distribution of Literary and Musical Works

Copyright is a property right with economic values. It is considered that the right to distribute

the work to the public for commercial purposes or by way of rental, lease, hire, loan or

similar arrangement resides with the author or owner of the Copyright in such work.

342

It is

therefore an offence for any person to distribute the work for commercial purposes without

the authorization of the Copyright owner.

343

This is because it will be unfair to give a person

who is not the Copyright owner the advantage of exploiting the economic benefits accruing

from the work without the authorization or license of the owner. Normally, the Copyright

owner is deemed to have granted an implied license where he makes his work available to

342

C.R.A.N. Section 6.

343

J Asein, Nigerian Copyright Law & Practice Op. Cit. p.194.

88

distributors and retailers for the purpose of sale.

344

But this authorization does not cover

commercial rental, lease, hire and loan of the work to the public.

345

It can be stated categorically that as far as Nigeria is concerned, it is uncommon to see where

literary works are subject of lending, loan, hire, except in libraries which is not done with any

economic consideration. The only thing that applies to literary works here is massive

reproduction by way unauthorized photocopying and reproduction. Most often, musical

works and films are usually rented or loaned in rental shops. This practice is actually

flourishing and poses great threat to the economic interests of right owners. It should be noted

that the provisions of the Act does not cover distributions to the public for commercial

purposes by way of sale.

346

This might be a deliberate avoidance of the implication of the

first sale doctrine, although this has been whittled down by the provision relating to

publication.

3.2.6 Broadcasting or Communicating of Literary and Musical Works to the Public

Nigerian Courts have not drawn a clear distinction between the two forms of exploitation,

namely performance of a work in public, and broadcasting the work in public. In Musical

Copyright Society of Nig. Ltd.v D.P.Lekki Ltd.,

347

the plaintiff was held to have established

that its musical works were publicly performed through hired bands and by means of

mechanical devices;

while in Musical Copyright Society Nig. Ltd. v Nigeria Hotels Ltd.,

348

the

performance was held to amount to infringement by means of devices as tapes, recorders,

radio and television sets and also over loudspeakers. One thing that is clear in both forms of

exploitations is that the Act does not prohibit a private or domestic performance; or

344

Ibid.

345

Ibid. p.195.

346

C.R.A.N. Section 6 (1) (b).

347

FHC/L/168/90 quoted by J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.186.

348

FHC/L/43/95. Quoted by J. Asein, Nigerian Copyright Law & Practice, Op. Cit. p.365.

89

communication of a work even by loudspeaker. Thus, a private reception of a broadcast or

rebroadcast does not fall within the meaning of public communication.

3.2.7 Exploitative Rights in Artistic Works

The Nigerian Act states that subject to certain exceptions, Copyright in an artistic work shall

be the exclusive right to do or authorize the reproduction of the work in any material form;

the publication of the work; the inclusion of the work in any cinematograph film; making any

adaptation of the work; doing in relation to an adaptation of the work, any of the acts

specified by the Act in relation to the work.

349

This provision reveals a few obvious

departures from the provisions relating to literary work, which may have been necessitated by

the peculiar nature of artistic works. Most often, artistic works co-exist with literary works

even in the same medium. For instance, a magazine, text book or newspaper may contain text

materials as well as illustrations of drawings, paintings or photograph. This may pose

problem when determining ownership of such works in the event of infringement.

It is noted that as is the case with literary and musical works, the Nigerian Act only confers

on an author rights in respect of the whole or a substantial part of the work either in its

original form or in any form recognizably derived from the original.

350

3.2.8 Reproductions of Artistic Works

Much of what was discussed in relation to the rights of a Copyright owner of literary and

musical work applies to the rights enjoyed by an owner of an artistic works especially as it

concerns reproduction. Thus, where a copy or reproduction of a work is not exact, the Court

must examine the degree of semblance to determine whether infringement has actually

occurred. In Bauman v Fussel, the appellant, a reputable photographer, had gone to Cuba and

there took a photograph of a cock-fight, which was published subsequently in the illustrated

349

C.R.A.N. Section 6 (2).

350

Ibid.

90

Magazine Picture Post.

351

The first respondent, an artist, saw this photograph, cut it out of the

magazine and painted it in a vigorous style. The artist admitted that the idea for his painting

was indeed taken from the picture. The second set of respondents, who are art dealers,

displayed the picture in their showroom and subsequently sold it to the third respondent. The

appellant brought this action claiming damages for the infringement of Copyright and for

delivering up of the painting to him. Although the Court accepted the possibility of an

infringement in a case like this, the question was whether the painting was a substantial copy

of the appellant‟s photograph. While agreeing with the fact that an infringement has occurred,

the Court held that the general colour of the birds was broadly similar and their positions the

same although the general effects of both pictures were different. In Brooks v Religious Tract

Society,

352

it was contended that part of an engraving of a collie dog had been copied and part

altered. The Court held that the defendant had not only taken the dog but also „the feeling and

artistic character of the plaintiff‟s work‟. In Bradlbury Agnew v Day,

353

the Court considered

whether the defendant‟s living pictures infringed the plaintiff‟s Copyright in a cartoons.

The

Court rightly held that breach of Copyright was established under the 1911 Copyright Act of

England which made living pictures possible subjects of infringement.

In the United States case of Kish v Ammirati & Puris Inc.,

354

the facts involved two

photographs which were taken in the same corner of a night club with the same background

and the underlying tone, mood lightening, camera angle and position appearing similar.

In

denying the defendant‟s motion to dismiss the plaintiff‟s claim for Copyright infringement,

the Court rightly held that there were sufficient similarities in both pictures to prove copying.

It went further to hold that it did not matter that the first photograph was a woman holding a

concertina while the second was of a man holding a bottle. In the Nigerian case of Ukaoha v

351

[1895] A.C. p.20 at p.27.

352

[1897] 45 N.R. p.476.

353

[1916] 32 T.L.R. p.349.

354

657 F. Supp. p.380 (S.D.N.Y. 1987).

91

Broad-Based Mortgage Finance Ltd.,

355

the plaintiff sued the defendants for the infringement

of his Copyright in a 17 story building model.

He alleged that he had loaned the building

model to the defendants for display in the latter‟s conference room until he could complete

the model of a bungalow which the second defendant had specifically requested him to make.

Although the defendants neither made drawings nor actual buildings from the model, the

plaintiff‟s complaint was that the defendants had caused several photographs of the model to

be published in newspapers without his consent and that the model was described by the

defendants as their proposed corporate headquarters in Abuja. This was after the defendants

had, at the formal commissioning of its Lagos Office, exhibited the same model to members

of the public. The plaintiff also alleged that the authorship of the model in one of the

newspaper publications was wrongly attributed to another firm. The Court correctly held that

the acts done or caused or permitted to be done by the defendants amounted to Copyright

infringement.

It should be noted that artistic works include works of architecture in the form of building

models; and that Copyright in a work of architecture includes the exclusive right to control

the erection of any building which reproduces the whole or a substantial part of the work

either in its original form, or in any form recognizably derived from the original.

356

Thus, the

right of the Copyright owner of a work of architecture is qualified under the Act by excluding

the right to control the reconstruction in the same style as the original of a building, to which

the Copyright relates. In line with this provision, the United States District Court rightly held

in the case of Altken & Ors. v Empire Construction Co. that neither the developer nor the

constructor had Copyright in an architect‟s drawings.

357

Therefore, when an architect

prepares a building plan at the request of a client, the Copyright remains vested in law in the

architect. What the client obtains is the right to construct his house in accordance with the

355

[1992] 2 F.H.C.L.R. p.477.

356

C.R.A.N. Section 6 (2).

357

542 F. Supp. p.252; 218 USPQ p.409.

92

plan and neither the client, nor the builder, can reproduce that plan or any substantial part

thereof except with the license of the architect, express or implied. In Blair v Osborne &

Anor.,

358

lord Denning succinctly put the position thus:

Where the owner of a building plot employs an architect to

prepare plans for a house on that site, the architect impliedly

promises that, in return of his fees, he will give a license to the

owner to use the plans for the building on the site. The Copyright

remains in the architect, so that he can stop anyone else from

copying his plans or making a house from them, but he cannot

stop the owner who employed him from doing a work on the site

in accordance with the plan. If the owner employs the builder or

another architect, the implied license extends so as to enable them

make copies of the plans and to use them for that very building on

the site but for no other purpose. If the owner should sell the site,

the implied license extends so as to avail the purchaser also.

3.2.9 Publication, Inclusion in a Cinematograph Film, and Adaptation of an Artistic

Work

As is the case of literary and musical work, an artistic work is published if copies of the work

have been made available in a manner sufficient to render the work accessible to the

public.

359

It must be pointed out that a Copyright owner of an artistic work reserves the right

to include such work in any cinematograph films.

360

The owner of the artistic work also has

an exclusive right to the exploitation of that work as an animated character.

361

In the same

vein, photographs, which the Act includes in the definition of artistic works, may be includes

in a cinematograph film as footage.

362

The Act however states that the rights conferred on the

author of an artistic work under the Act does not include the rights to control the inclusion in

a film or a broadcast of an artistic work situated in a place where it can be viewed by the

public; or an incidental inclusion of an artistic work in a film or broadcast.

363

An incidental

inclusion would suggest the inclusion of an artistic work in the background or general

358

[1971] 2 Q.B. p.196.

359

C.R.A.N. Section 51 (1).

360

Asein, Nigerian Copyright Law & Practice, Op. Cit. p.202.

361

Ibid.

362

Ibid.

363

C.R.A.N. Paragraphs (c) & (e) of the Second Schedule.

93

scenery not having any significant connection with the principal subject of the film.

364

It is

worthy to note that what has been discussed with respect to adaptations of literary and

musical works also apply to artistic works.

3.2.10 Exploitative Rights in Cinematograph Films

The rights granted by the Nigerian Act to a Copyright owner of a cinematograph film

includes the right to do or authorize the making of a copy of the film, causing the film, in so

far as it consists of visual images to be seen in the public and, in so far as it consists of

sounds, to be

heard in public; making any recording embodying the recording in any part of the sound track

associated with the film by utilizing such sound track; the distribution to the public, for

commercial purposes copies of the work, by way of rental, lease, hire, loan or similar

arrangement.

365

The Act further provides that the doing of any of the acts referred to in the

relevant section of the Act in respect of the original form or in a form recognizably derived

from the original.

366

However, the Act does not expressly provide for the rights in relation to

an adaptation of the cinematograph film as is the cases with literary, musical and artistic

works. Asien argued that since an adaptation does not necessarily involve copying, merely

making an adaptation of a film will not constitute an infringement of Copyright in the film.

367

However, this argument is unsustainable as there is no basis for thinking that the taking of a

still photograph from single frames of a cinematograph film should not amount to making

copies of the work. This is because as far as the Nigerian Act is concerned, copy means „a

reproduction in written form, in the form of a recording or cinematograph film, or any other

material form‟.

368

The Court is saddled with the responsibility of determining whether the

copy in any particular instance is substantial enough to constitute an infringement of the

364

Ibid.Section 51 (1).

365

Ibid. Section 6 (1) (b) (iii).

366

Ibid. Subsection (2).

367

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.203.

368

C.R.A.N. Section 51 (1).

94

Copyright of the owner. In Spelling Goldberg v B.P.C. Publishing Ltd.,

369

the plaintiff was

the producer of some detective films and owned the Copyright in them. The defendant had

produced the photographs and a display poster derived from the film without the plaintiff‟s

authorization. As still photographs, they were in fact, a reproduction of single frames from

the film. The plaintiff argued that the reproduction of a single frame of the film was in effect

the making of a copy of the film. The Court of first instance wrongly rejected this argument

and held that the copy of a film meant a sequence of images capable of being shown as a

moving picture. In reversing this decision, the English Court of Appeal rightly held that a

single frame taken from a film was an integral part of that film and its reproduction in any

material form constituted the making of a copy. The honourable Court remarked that it was

indeed difficult in the ordinary use of languages to say that a single frame taken from all the

frames contained in a cinematograph film was not itself, part of that film.

The Court further

held that a still photograph was a copy of a cinematograph film. In adopting this approach,

lord Justice Buckley opined that “this view does not seem to be surprising when one

remembers that under the old law, every single frame in a film constituted an individual

photograph for Copyright purposes.

370

The Court correctly held in this particular case that a

newspaper publication of still photographs taken from a video recording constituted an

infringement of the Copyright in the work.

It is observed that the rights granted to Copyright owners of cinematograph films are not as

wide as the rights granted to Copyright owners in television broadcasts which the Act defines

to include „the right to control the making of still photographs from the broadcast‟.

371

It is

suggested that the Nigerian Act be amended to expand the rights granted to Copyright owners

of cinematograph film to be as wide as the rights granted to owners of the right in broadcasts.

369

(1981) R.P.C. p.283; (1979) F.S.R. p.494.

370

Hyde Park Residence Ltd v Yelland [2001] Ch. p.143.

371

C.R.A.N. Section 8 (2).

95

It should however be noted that as is the case with the performance of musical work in

public, it is a question of fact to be determined by the Court depending on the circumstances

of each case whether the audience to which a film is shown or the sound is played constitutes

a public in relation to public performance. The crucial factor is the relationship between the

viewing or listening audience and the owner of the film, rather than the relationship between

the audience and the person exhibiting the film.

372

There is however a presumption of law to the effect that where the owner of the Copyright in

a literary, musical or artistic work authorizes a person to incorporate his work in a film and

such film is broadcast by a broadcasting authority, the owner of the Copyright in the

underlying work is deemed to have authorized the broadcast; which presumption can be

rebutted by showing that there was no express agreement to the contrary between the owner

of the underlying work and the person incorporating the work in a film.

373

3.2.11 Exploitative Rights in Sound Recordings

A Copyright owner of a sound recording is conferred with the exclusive to control in Nigeria

the direct or indirect reproduction, broadcasting or publication to the public of the whole or a

substantial part of the recording either in its original form or in any form recognizably

derived from the original; the distribution to the public for commercial purposes of copies of

the work by way of rental, lease, hire, loan or similar arrangement.

374

The Act also states that

the exceptions specified in the Second Schedule to the Act shall apply to the Copyright in

sound recording in like manner as they apply to Copyright in literary, musical or artistic work

or a cinematograph film.

375

Thus, the exploitative rights in sound recording are similar to the

372

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.205.

373

C.R.A.N. Section 9 (1).

374

Ibid. Section 7 (1).

375

Ibid. Subsection (2).

96

rights earlier discussed in this work concerning literary, musical artistic or broadcast works.

The arguments proffered in respect of these works are applicable to sound recordings.

In Gramophone Co. Ltd. v Cawardine & Co. Ltd.,

376

the plaintiff, a manufacturer of

gramophone records on which sound recordings were embodied, sued the defendant for

playing one of the records in its tea rooms which was a place of entertainment.

The plaintiff‟s

action was for an injunction restraining the defendant from performing the record otherwise

than in private. The Court upheld the plaintiff‟s sole right under the Copyright Act to use the

record for public performance. What the Court did in this case is a welcome development

which is also in line with the provision of the Nigerian Copyright Act to the effect that the

owner of the Copyright in the work continues to have the right of control even after the sale

of the work. However, the position in Nigeria is somewhat different from what exists in

England where the rights granted to Copyright owner of a sound recording work are now

subject to more exceptions unlike in Nigeria. For example, in the English case of C.B.S. Inc. v

Ames Records and Tapes Ltd.,

377

the plaintiff‟s company, on behalf of a number of

Copyright owners in sound recordings, sued the defendant company as the owner of a chain

of retail shops operating record lending library as an alternative to direct sale.

The library lent

out records and simultaneously offered blank tapes for sale at a discount. The Court held that

this does not constitute authorization of infringement of Copyright in the records. The

defendant could not be said to have sanctioned or encouraged home taping, so its activities

did not constitute infringement. The Court further held that the purchaser of a record was free

to sale, hire or destroy it at will. The Court cautioned against stretching the Copyright law to

give protection to creative talents and activities, the protection of which was probably never

in the contemplation of those who made the law.

376

[1934] I Ch. p.450.

377

[1982] Ch. p.91.

97

It is important to clarify when one is dealing with a live performance and when one is dealing

with a sound recording. One can be said to have violated the rights of the owner of a sound

recording only when the work has been fixed in a format, although it would still amount to an

infringement even where the illicit reproduction is made from a broadcast of the sound

recording as against a live broadcast. In the same vein, where a broadcasting authority

broadcasts a cinematograph film in which a musical work is incorporated, the owner of the

right to broadcast the musical work is entitled subject to the provision of the Act, to a fair

compensation from the broadcasting authority.

378

In the absence of any agreement on the

amount of compensation payable, then the matter would have to be determined by the Federal

High Court of Nigeria.

379

3.2.12 Exploitative rights conferred on an owner of a broadcasting Work

According to the Nigerian Act, Copyright in a broadcast shall be the exclusive right to control

the doing in Nigeria of any of the following acts:

380

(a) the recording and the re-broadcasting of the whole or a

substantial part of the broadcast;

(b) the communication to the public of the whole or substantial part of

a television broadcast, either in its original form or in any form

recognizably derived from the original; and

(c) the distribution to the public for commercial purposes, of copies of

the work, by way of rental, lease, hire, loan or similar

arrangement.

Copyright in a television broadcast also includes the right to control the taking of still

photographs from the broadcast.

381

These rights granted to authors of broadcasts are subject

to five basic exceptions provided for in the Second Schedule to the Nigerian which shall be

378

C.R.A.N. Section 9 (2).

379

Ibid. Subsection (3).

380

Ibid. Section 8 (1).

381

Ibid. Subsection (2).

98

treated later in the next chapter under exceptions to Copyright control.

382

The exploitative

rights relating to broadcast shall be considered below.

3.2.13 Recording and Re-broadcasting of Broadcasts

The rights given to the owner of a work of broadcast are the rights to record and re-broadcast

the television broadcast. It is submitted that there is no cogent reason why broadcast under

the provisions of the Nigerian Act should have be limited to television broadcasts. Asein

argued that television broadcast here could be understood in its very broad sense to mean the

broadcast of vision as against audio.

383

It may well be that the drafters of the Act foresaw that

it will amount to duplication to assign the same rights already given to owners of works of

sound recording to owners of works of broadcast if the provisions of the Act relating to

broadcast are not limited to television broadcast. Thus, only video works are contemplated

under this Section of the Act, while audio works are contemplated under another section of

the Act. It is suggested that the Nigerian Act be amended to include radio broadcast in the

category of works protected as broadcast.

3.2.14 Communication to the Public of Broadcasts

The Nigerian Act grants owners of works of broadcasts the right to communicate the work to

the public of the whole or a substantial part of a television broadcast, either in its original

form or in any form recognizably derived from the original.

384

In Cable News Network Inc. v

S.A. Hoteliere Novotel Paris Les,

385

the plaintiffs sued the defendant hotel for the

broadcasting of their programmes without license. The hotel, by means of a parabolic antenna

directed towards the satellite transmitting CNN broadcasts and by using technical equipment,

transmitted the signals by cable to the room. The defendant argued in its defence that its

activity was merely a „passive reflection of TV programmes and not broadcasting by cable‟.

382

Ibid. Subsection (3).

383

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.208; C.R.A.N. Section 8 (1).

384

Ibid. Section 51(1).

385

[1996] E.C.E. p.370.

99

The Court of first instance dismissed the plaintiff‟s claim and held that a hotel room is a

private place which could not be classified as a place open to the public. The Court of Appeal

rightly reasoned that although the clients of a hotel each occupied separate rooms, taken

together they constitute a public to whom CNN broadcasts were communicated in the

exercise and for the purpose of its trade. It went ahead to hold that it was not necessary to

prove that the broadcast had in fact been listened to and watched by the hotel clients, since

the very fact of providing such clients with the wherewithal to receive them constituted the

communication. In Entidad De Gestion De Derechos De Los Productions Audiovisuales v

Hosteleria Asturiana SA,

386

the European Court of Justice rightly reached the same

conclusion that the reception by a hotel of satellite or terrestrial television signals and their

distribution by cable to its rooms was an „act of communication to the public‟ or reception by

the public.

Similarly, in Mornington AB v STIM,

387

it was held that:

The provision of radio and television sets in hotel bedrooms

constitutes a performance for Copyright purposes and that

performance is public where the hotel rooms are freely available to

the public albeit for free. It did not matter that the signals were

received directly over the air or via a community antenna and;

whether or not the individual hotel guests make use of the sets.

It can be gleaned from these legal precedents cited above that once there is reception of

broadcast whether audio or visual, via electrical gadget in a public place, such a transmission

or reception constitutes broadcast of the work in the public. It is immaterial that nobody

actually watched or listened to the broadcast, or that it was watched or listened to by a good

number of persons capable of being addressed as the public. Moreover, Mornington‟s case

quoted herein is an authority in support of the fact that the broadcast contemplated under the

act is not limited to television broadcast, but embraced audio broadcast.

386

[2000] E.M.L.R. p.523.

387

[1982] E.C.C. p.17.

100

It should also be noted that broadcast can be communicated wholly or partially to the public

either in its original form or an adaptation of it. The communication of the original work or a

form recognizably derived from the original has been fully discussed in this chapter in

relation to other protected works which works are similar to broadcast. There is therefore no

need to repeat such arguments herein to avoid repetition.

3.2.15 Commercial Distribution of Copies of Broadcasts

As stated earlier in this research work, a copy to means „a reproduction in written form, in the

form of a recording or cinematograph film, or in any material form‟.

388

This means that the

broadcast must be embedded in some material form. For example, an audio recording of a

radio broadcast or, in the case of a television broadcast, a video or audio recording. Whatever

be the case, the materials in question must qualify as copies of the broadcast which in this

case would include both television and radio broadcast. Similarly, the rights granted to the

owner of broadcast include the right to distribute the copies embodying the broadcast to the

public for commercial purposes in the form of rental, lease, hire, loan or similar

arrangement.

389

It should be noted that these modes of distribution enumerated above imply a

temporary transfer of possession of copies, usually with a condition of payment in return.

It is submitted that the phrase „similar arrangements‟ mentioned by the Nigerian Act in

relation to the commercial distribution of broadcast works should be read to mean the

arrangements similar to the ones specified by the Act. Thus, it is not restricted to the acts

specified, but does not include any other kind of commercial distribution such as outright

sale.

388

C.RA.N. Section 51(1).

389

Ibid. Section 8 (1) (c).

101

3.2.16 Taking of Still Photographs from Works of Broadcasts

The taking of still photograph from works of broadcasts is one of the rights conferred on an

owner of a broadcast work.

390

Thus, unauthorized taking of a still photograph of a broadcast

by another is prohibited even if the still photograph is a snapshot. It will be of no

consequence to argue that such still snapshot would not ordinarily qualify as a substantial part

of the broadcast. It is however commendable that the Act does not require that the photograph

or snapshot taken from the broadcast should have been distributed or otherwise dealt with

commercially. This suggests that strict enforcement is contemplated by the drafters of the

Nigerian Act. It is submitted that this is a welcome development especially in view of the

ongoing indiscriminate violations of Copyright.

3.3 Right to claim authorship

The Nigerian Act provides that:

391

the author of a work in which Copyright subsists has the rights to:

a. claim authorship of his work, in particular that his authorship be

indicated in connection with any of the acts referred to in section 6 of

this Act except when the work is included incidentally or accidentally

when reporting current events by means of broadcasting;

b. object and to seek redress in connection with any distortion,

mutilation or other modification of, and any other derogating action in

relation to his work, where such action would be or is prejudicial to

his honour or reputation.

It has been stated earlier in this work that a creator of a work who spent a lot of energy,

resources and time in creating a work is entitled to reap the economic benefits accruing from

the work. He has the right to do or cause any other person to do on his behalf any of the acts

enumerated in the Nigerian Act, ie, the right to reproduce, publish, perform the work in

public, broadcast, make any adaptation of the work, etc. These rights are conferred not only

on the author of the work but on the heir or heirs, as well as the successors-in-title of the

390

Ibid. Section 8 (2).

391

Ibid. Section 12.

102

author.

392

The rights of the author enumerated above are so sacrosanct and inalienable that the

law empowers the author to claim authorship of his work and to stop people from using his

work without indicating his authorship except when such work is included incidentally or

accidentally when reporting current affairs or events by means of broadcasting. These rights

are perpetual, inalienable and imprescriptible.

393

Under the Indian Act, the author continues to enjoy these rights independently of his

Copyright and even after the assignment either wholly or partially of the Copyright.

394

However, the author has no right to restrain or claim authorship in respect of any adaptation

of a computer programme to which the provisions of the Act on the exception for the use of

works for fair use apply.

395

Similarly, the English Act provides that authors of published and

issued works enjoy the rights similar to the rights provided by the Nigerian and Indian

Acts.

396

However, the right is not infringed unless authorship has been asserted in accordance

with the relevant provisions of the English Act.

397

Authorship of a work is asserted generally,

or in relation to any specified act or description of acts by including a statement that the

author or director asserts his right to be identified as the author of the work.

398

This assertion

must be in writing and signed by the author or director as the case may be.

399

The assertion

may be contained in the instrument of assignment, license, etc.

400

It should be noted that

under the English Act, the right to be identified as the author or director does not apply in

relation to computer programme; the design of typeface; and any computer generated

392

Ibid. Subsection (3).

393

Ibid. Subsection (2).

394

C.R.A.I. Section 57.

395

Ibid.

396

C.D.P.A. Sections 77 & 80.

397

Ibid.

398

Ibid. Section 78 (2).

399

Ibid.

400

Ibid. Subsection (1) & (2).

103

work.

401

Furthermore, the right to claim authorship does not apply to works produced by

employees in the course of their employment.

402

The Act further provides that:

the right is not infringed by an act which by virtue of the following

provisions would not infringe Copyright in the work:

403

(i) Section 30 (Fair dealings);Section 31 (incidental inclusion of work

in an artistic work, sound recording, film or broadcasting);

(ii) Section 45 (Parliamentary or Judicial proceedings);

(iii) Section 46 (1) or (2) (Royal Commissions and Statutory Inquiries);

(iv) Section 51 (Use of designs documents and models);

(v) Section 52 (effect of exploitation of design derived from artistic

work);

(vi) Section 57 or 66A (acts permitted on assumptions to the expiry of

Copyright).

The right is also not infringed by an act done for the purposes of an examination which by

virtue of any provisions of the Act would not infringe Copyright.

404

However, the right does

not apply in relation to the publication in a newspaper, magazine or similar periodicals; or an

encyclopedia, dictionary, year book or other collective work of reference of a literary,

dramatic, musical or artistic work made for the purposes of such publication or made

available with the consent of the author for the purposes of such publication.

405

In the same

vein, the right does not apply in relation to a work in which crown Copyright or

Parliamentary Copyright subsist; or a work in which Copyright is originally vested in an

International Organization.

406

In all cases, the right to object to the derogation of the work is

also subject to a similar exception discussed above.

407

Furthermore, an author has the right

not to have a work falsely attributed to him.

408

401

Ibid. Section 79.

402

Ibid. Subsection (3).

403

Ibid. Subsection (4)-(7).

404

Ibid. Subsection (4A).

405

Ibid. Subsection (5).

406

Ibid. Subsection (7).

407

Ibid. Sections 81 & 82.

408

Section 84.

104

On the other hand, the U.S. Act provides for the author‟s right to claim authorship of the

work; right to prevent intentional distortion, mutilation, or modifications of his work in a way

that is prejudicial to his honour or reputation, or which violates his rights; and the right to

prevent destruction of a work of recognized stature, and any intentional or grossly negligent

destruction of such work.

409

However, the right to claim authorship only avails an author or

co-author of a work of visual arts. The author also reserves the right to prevent the use of his

name in such a derogatory work.

410

The Act also empowers an author to prevent the use of his

name in a derogatory visual work.

411

It further provides that:

412

right and the right to claim authorship provided under subsection (1) of

the Act shall not apply to any reproduction, depiction, portrayal, or any

use of a work in, upon, or in any connection with any item described in

subparagraph (A) or (B) of the definition of „work of visual art‟ in

Section 101, and any such reproduction, depiction, portrayal, mutilation,

or other modification described in paragraph 3 of subsection (a) thereto.

It is submitted that where a work is alleged to have been distorted or modified, the test to be

applied by the Court in determining whether such act is prejudicial or derogatory to the

owner of the work, is the objective test. Thus, if the distortion or modification is one which

ordinarily is in favour of advancement of education, research and science and the author is

acknowledged therein, such work having passed the test of originality, will qualify as an

authentic work of the new author. What the law should frown at is the mutilation of the

authorship of a work.

It is further submitted that any attempt to qualify or limit the author‟s right to claim

authorship of his work, the right to object to the derogatory use of his work by another, and

the right to object to the false attribution of such derogatory work to him will be tantamount

to a departure from the true concept of Copyright. It is therefore suggested that the elaborate

409

U.S.C. Section 106A.

410

Ibid.

411

Ibid. Subsection (2).

412

Ibid.

105

restrictive provisions made in this wise by the English, Indian and the U.S. Acts be deleted

through immediate amendment along the line of the Nigerian Act. Thus, these rights will be

enforced whether asserted or not; or whether the work is published in a newspaper, periodical

or any article.

3.4 Right to Privacy of Certain Photographs and Films

The English Act has a unique provision which protects a person who for private and domestic

purposes, commissions the taking of a paragraph or the making of a film wherein Copyright

subsists.

413

Such a person has the right not to have copies of the work issued to the public; or

the work exhibited or shown in public; or the work communicated to the public.

414

A person

who does any of these acts without the authority of the owner of the right in the work shall be

deemed to be in violation of Copyright.

415

However, the right so granted by this provision is

not infringed by any person who ordinarily would be exempted by the Act, that is to say;

incidental inclusion of a work in an artistic work, film or broadcast; parliamentary and

judicial proceedings; Royal Commissions and Statutory inquiries; acts done under statutory

authority; acts permitted on assumptions as to expiry of Copyright.

416

It is observed that only the English Act provides for this Copyright friendly right to privacy.

It is submitted that the right to privacy is so fundamental that virtually all the Constitutions of

the nations of the world entrenched its principle in them. It is therefore surprising that such

provision is not contained in the Nigerian, Indian and U.S. and Acts. It is suggested that these

Acts be urgently amended along the pattern of the aforementioned English Act.

3.5 Right to Share in the Proceeds of Sale/Right to Remuneration

It has been stated in this work that a labourer deserves his wages. Thus, an author who spent

precious time, labour and money in creating his work is ordinarily entitled to the economic

413

C.D.P.A. Sections 85.

414

Ibid.

415

Ibid.

416

Ibid. Subsection (2).

106

benefits accruing therefrom by way of remuneration or by sharing in the proceeds of the sale

of such works. The Nigerian Act agrees with this principle when it provides that:

417

notwithstanding any assignment or sale of the original work, the

author of graphic works, three dimensional works and manuscripts

shall have an inalienable right to share in the proceeds of any sale

of that work or manuscript by public auction or through a dealer

whatever the method used by the latter to carry out the operation.

The works contemplated by this section are some artistic and literary works sold by way of

auction or sold through a dealer. Furthermore, the right to share in the proceeds of sale exists

in relation to original works only.

418

This right is not available to authors of architectural

works or works of applied art.

419

The right is conferred on the author or where the author is

not alive, the heir to the author or his successor-in-title.

420

Most importantly, the conditions

for the exercise of this right shall be determined by regulations to be made by the Nigerian

Copyright Commission.

421

This means that if the Nigerian Copyright Commission fails to

make any such regulations contemplated by the Act, the right of the author to share in the

proceeds of the sale of his work will be kept in abeyance.

It is observed that while the Nigerian Act guarantees the right of authors to share in the

proceeds of sale which is not mentioned by the other Acts under consideration, it does not

expressly mention the author‟s right to remuneration as obtained in the English Act. The

latter Act expressly provides that an author who has transferred his rental right concerning

sound recording or film to a producer still retains the right to equitable remuneration for the

rental.

422

Thus, the right to share in the proceeds of sale as contained in the Nigerian Act is

synonymous with the right to remuneration provided by the English Act. However, it cannot

be said that the English Act contains a comprehensive provision for the protection of the

417

C.R.A.N. Section 12 (1).

418

Ibid. Section 13 (2).

419

Ibid. Subsection (4).

420

Ibid. Subsection (5).

421

Ibid. Subsection (1).

422

C.D.P.A. Section 93A & 93B.

107

authors‟ right to remuneration as under the Nigeria Act. It is therefore suggested that the Acts

be urgently amended to allow authors enjoy this right in all protectable works.

It is noted that even though the Acts of India and United States contain no express provision

regarding the protection of authors‟ right to share in the proceeds of sale/right to

remuneration, it is implied in the Acts that these rights are duly protected. This is because the

Acts contain provisions for the payment of royalties to authors from the proceeds generated

from the sale of their works.

423

This position is further buttressed by the fact that Copyrights

Societies operate in the jurisdictions under consideration with the purposes of securing

economic benefits accruing to authors, as well as enforcing authors‟ rights to remuneration.

It is submitted that the failure of the Indian and United States Copyright Acts to expressly

provide for the authors‟ right to remuneration is a grave omission which is capable of leading

to confusion and obscurity. It is further submitted that the trusting of the right to economic

reward of authors into the hands of the Nigerian Copyrights Commission which is less active

and which dispenses its duties with lukewarm attitude, is tantamount to compromising the

main aim of Copyright which is the creation of works through the enjoyment of the economic

benefits flowing from their works. Again, even though the right to share in the proceeds of

sale is a laudable one, the Nigerian Act confers this right only on creators of some named

artistic and literary works, thereby excluding authors of musical, broadcasting, and other

forms of literary and artistic works not mentioned in the relevant section under consideration,

from the enjoyment of this right. It is further submitted that this omission is an injustice

aimed at discouraging creation. It is therefore suggested that the Nigerian Act be amended to

make the right to share in the proceeds of sale available to authors of protected works under

the Act and to make the right to be automatic upon sale without having recourse to any

423

U.S.C. Section 801; C.D.P.A. Sections 93A & 93C.

108

regulations made or to be made by the Nigerian Copyright Commission. It further suggested

that the other Acts under consideration be amended in accordance with this suggestion.

3.6 Right of Authors to Relinquish Copyright

It was been stated earlier in this work that Copyright is transmissible by assignment,

testamentary disposition or operation of the law as personal or movable property.

424

Such

assignment may be whole or partial.

425

In the same vein, where a license has been granted by

a Copyright owner, it is binding on any of his successors-in-title to his interest in the

Copyright work.

426

It is observed that the Indian Copyright Act has a novel provision which is

not contained in the other Acts under consideration, to the effect that the author of a work has

the right to relinquish all or any of the rights comprised in the Copyright in such work.

427

He

may do so by giving notice in the prescribed form to the Registrar of Copyrights; or by way

of public notice, and such rights shall cease to exist from the date of the receipt of such

notice.

428

Upon the receipt of such notice, the Registrar of Copyrights shall cause the notice to

be published in the official gazette in such manner as he may deem fit.

429

Fourteen days from

the publication of the notice on the official website of the Copyright Office, such work shall

remain in the public domain for a period of not less than three years.

430

However, the

relinquishment of all or any of the rights in the Copyright in a work shall not affect the rights

subsisting in favour of any person on the date of the notice referred to in the Act.

431

It is opposite to state at this juncture that this laudable provision is made to aid the

dissemination of knowledge and information to the public. It is therefore suggested that this

424

C.R.A.N Section 11 (1); C.D.P.A. Sections 90-98; U.S.C. Section 201(d); C.R.A.I. Sections 18-21.

425

C.R.A.N. Section 11 (2).

426

Ibid. Subsection (4).

427

C.R.A.I. Section 21 (1).

428

Ibid.

429

Ibid. Subsection (2).

430

Ibid. Subsection (2A).

431

Ibid. Subsection (3).

109

gesture be emulated by the other three jurisdictions under consideration by entrenching this

Copyright friendly provision in these Acts through amendment.

3.7 Rights of Authors to Bequeath, Assign or License Copyright in their Works

As earlier stated this research work. Copyright, being a tangible right is transmissible by

assignment, by testamentary disposition, or by operation of the law as movable property.

432

Thus, authors are allowed to bequeath, assign or license their Copyright in works as of right.

Since justice has been done to the subject of this topic in sub paragraph 3.1 of this chapter of

this research work, there is no need to revisit same for want of time and space.

3.8 Copyright Infringement

Copyright infringement, also known as piracy, is the use of works protected by Copyright law

without permission, thereby violating certain exclusive rights granted to the Copyrights

holder, such as the right to reproduce, distribute, display or perform the protected work, or to

make derivative therefrom. These rights are automatically conferred on authors upon the

creation of works in order to allow them reap the economic benefits accruing from their

creation. The law confers Copyrights holders with the power to invoke legal and

technological measures to prevent and penalize Copyright infringement, subject to the

exceptions to Copyright control discussed in chapter four of this work. The various classes of

infringement shall be fully discussed hereunder.

3.8.1 Primary Infringement

Copyright owners are conferred with the exclusive rights to control the use and exploitations

of their works in the manner specified by the Nigeria Act. These primary rights granted to

Copyright owners include the right reproduction, publication, performance, adaptation,

commercial distribution, public performance and broadcasting of works.

433

It therefore

432

C.R.A.N. Section 11(1); U.S.C. Section 201 (d) (i).

433

Ibid. Section 6.

110

follows that any person who without the license or authorization of the Copyright owner,

does or causes any other person to do any of the acts enumerated above will be liable for

infringement of Copyright.

434

This class of infringement is usually referred to as primary civil

or direct infringement. It must be pointed out that primary/direct infringement is strict

liability in nature as there is no requirement of any guilty knowledge or adverse motive. It

must be pointed out that what constitutes reproduction, publication, performance, adaptation,

commercial distribution, public performance and broadcasting of works in relation to

exclusive rights of Copyright owners and the acts that violate these rights have been fully

discussed earlier in this chapter of this research work. Therefore, only secondary and criminal

infringement of Copyright shall be discussed herein.

3.8.2 Secondary Infringement

The Nigerian Copyright Act provides that:

435

Copyright is infringed by any person who without the license or

authorization of the owner of Copyright:

(a) imports or causes to be imported into Nigeria any copy of a work

which if it had been made in Nigeria would be an infringing copy

under this section of the Act;

(b) exhibits in public any article in respect of which Copyright is

infringed under paragraph (a) of this subsection;

(c) distributes by way of trade, offers 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;

(d) makes or has in his possession, plates, master tapes, machines,

equipment or contrivances used for the purpose of making infringed

copies of the work;

(e) permits a place of public entertainment or business to be used for a

performance in the public of the work, where the performance

constitutes an infringement of the Copyright in the work, unless the

person permitting the place to be so used was not aware, and had no

434

Ibid. Section 15 (1) (a); Nigeria Copyright Commission v Edolo 6 I.P.L.R. 41;

Musical Copyright Society v Adeokin Records & Anor. 6 I.P.L.R. 55.

435

Ibid. Section 15(1) (a) to (g).

111

reasonable ground for suspecting that the performance would be an

infringement of the Copyright;

(f) performs or causes to be performed for the purposes of trade or

business or as supporting facility to a trade or business, any work in

which Copyright subsists.

It must be noted that there is nothing in the Nigerian Act that suggests the requirement of any

particular knowledge in the case of secondary infringement, although the Act makes

reference to the defendant‟s state of mind in respect of a person permitting a place of public

entertainment or business to be used for a performance in public.

436

It has been rightly

suggested that what needs to be proved in a case where such knowledge is required, is the

notice of facts such as would suggest to a reasonable man that a breach of Copyright was

being committed.

437

This leaves open the question whether indirect Copyright infringement,

like direct infringement, is a strict liability tort. It is however suggested that since reference to

the knowledge of the defendant was expressly made in this provision of the Act, the Act

should be read to exclude knowledge in the other provisions of the Act relating to secondary

civil infringement.

The Nigerian Act‟s prohibition on the importation of infringing copies of works is limited to

importation of such copies into Nigeria.

438

Obviously, this provision speaks only of the

infringement “under the Act”. It does not adequately cover cases where the acts constituting

infringement was done outside Nigeria prior to importation. On the other hand, the English

Acts provides that Copyright in a work is infringed by a person who, without the license of

the Copyright owner, imports into the United kingdom, otherwise than for his private and

domestic use, an article which is and which he knows or has reason to believe is, an

infringing copy of the work.

439

This provision is similar to the position in Nigeria prior to the

436

Ibid. Section 15(1) (f).

437

Albert v. Hoffung (1922) 22 S.R. (N.S.W.) p.75, at p.81.

438

C.R.A.N. Section 15(1) (b).

439

C.D.P.A. Section 22.

112

1992 Amendment of the Act. The difference is that the requirement of private and domestic

use has been eliminated by the aforestated amendment. Similarly, both Acts do not require

the proof of guilty knowledge and motive of the defendant. Hence, there is no requirement of

proof that the defendant had fore-knowledge or had actual knowledge that the copy being

imported would have been an infringing copy if it had been made either in Nigeria or United

Kingdom.

There is no doubt that the strict application of the provisions of the Nigeria Copyright Act

relating to secondary infringement discussed above may create problems for a person who is

an importer and who imports the work which is lawfully made in the country of origin but

which work would nevertheless have been infringing copy if it had been made in Nigeria.

This is because the Act requires that the importer should have the knowledge that the work is

an infringing one and that the importation should not be for commercial purpose. In C.B.S.

Ltd. v U.K. Record Distributors Ltd.,

440

a United States company who is also the owner of the

United States and United Kingdom Copyright in some sound recordings, granted an exclusive

license to the plaintiff, a wholly owned United Kingdom subsidiary to manufacture and sell

the sound recording in the United Kingdom. The defendants, a record distribution company,

lawful purchased in the United States, copies of the work made by the American company

and imported them for sale into the United Kingdom. Upon the plaintiff‟s motion for

injunction, the question before the Court was „whether the defendants were in breach of the

English Copyright Act, 1956‟.

441

The Court reasoned that it was the American Company as

the owner of the United Kingdom Copyright that is also the owner of the recording rights in

the United kingdom for the purposes of the Act; and that it would not have been an

infringement for the American company to manufacture the recordings in the United

kingdom. The Court rightly held that the maker hypothesized in that section of the Act was

440

[1986] R.P.C. p.273.

441

section 16 (2) and (3), which is in tandem with C.R.A.N. Section 15 (1).

113

the person who actually made the article abroad and for that reason, there was no

infringement within that section where records manufactured abroad by the American

company were imported into the United Kingdom, provided that the American company

either owned the Copyright or had an exclusive license to manufacture both in the United

States and the United Kingdom.

It should be noted that it is not easy to determine what constitutes importation under the

relevant sections of the Acts under discussion. In Gramophone Co. of India Ltd. v Pandley,

442

the Indian Supreme Court considered the word „import‟ in the context of section 53 of the

Indian Copyright Act. The Appellant in this case upon getting information from the Customs

Authorities that a consignment of pre-recorded cassettes, many of them pirated, had arrived

Calcutta Port by sea and was awaiting dispatch to Nepal, approached the Registrar of

Copyright to exercise his powers to prohibit their importation and to confiscate the

consignment. The Appellant obtained interim order initially but on appeal, the Appellant‟s

writ was dismissed on the ground that what the consignee had done did not amount to

„importation‟ under the Indian Copyright Act. On a further appeal to the Supreme Court, the

Court cautioned that the same word could mean different things in different enactments and

in different contexts, implying that the correct approach would be to look at the sense of the

Statute. Following this approach, the Court concluded that to „import‟ for the purposes of the

relevant sections of the Copyright Act, should be understood to mean bringing into India

from outside „India‟ including importation for transit across the country. The Court reasoned

that since the section in question did not expressly limit the prohibition to „importation for

commerce‟ there is no justification for reading those words into it. In Penguin Books Ltd. v

Indian Book Distributors,

443

the High Court of India held that section 53 of the Indian Act,

applied to copies made out of India which if made in India, would infringe Copyright;

442

[1985] FRS p.136.

443

[1985] F.R.S. p.120.

114

arguing that „infringing copies‟ could not have a different meaning in sections 51 (b) (iv) and

53 of the Act. Considering the fact that the Indian Act makes it an infringement for any

person to import, except, for the private and domestic use of the importer, into India,

444

these

precedents cited above represent the correct position of the law.

It is well noted that even though the U.S. and Nigerian Acts do not distinguish between

importation for private/domestic use and importation for commercial use, as is the case with

the English and Indian Acts.

445

There are a lot of concerns about innocent importers who may

not have known that they could be in breach of Copyright by importing such works in a place

like the United Kingdom where the aforementioned distinction is made. Responding to these

concerns, Jessel rightly noted in the case of Cooper v Whittingham that the English Act

simply says „import‟ and that people who import for sale or hire must carry on business at

their own peril.

446

He reasoned that such persons were not like ordinary people who import

for their own private use and reading, but are people engaged in business who are bound to be

on the look-out and to see that the book they import for sale are not pirated. This goes to

supports the well known principle of law that ignorance of the law is not an excuse.

It must be pointed out that the U.S. Act only mentions the importation of phonorecords into

the United States in violation of the Act.

447

No other form of illegal importation of work is

mentioned in the Act. It is suggested that the Act be amended to incorporate the provisions of

the Indian Act relating to this arm of secondary infringement.

Another form of secondary infringement is the unauthorized exhibition of work in the public

as contained under the Nigerian Act.

448

The prohibition envisaged under this subsection

extends to the infringing copies of the work or any other work or articles which, although not

444

C.R.A.I. Sections 51 (b) (iv).

445

C.R.A..I. Section 51 (a) (iv), C.D.P.A. Section 22; U.S.C. Section 506.

446

(1880) L.R. 15 Ch.D. p.501, at p.504- p.505

447

U.S.C. Section 501.

448

C.R.A.N. Section 15 (1) (c).

115

copies in the strict sense, but nevertheless embody the object of infringement. The Act does

not require that such exhibition in public must be by way of trade. In the same vein, the

defendant needs not have knowledge that the article being exhibited infringes Copyright in

any work. It is submitted that since the Act does not require the actual sale or commercial

exposition of the Copyright material in order to prove liability, a mere display or exhibition

of the work even for promotional purposes would constitute an infringement.

Under the English Act, it is a prohibited act to exhibit in public or distribute in the course of a

business or to distribute otherwise than in the course of a business, a work without the license

of the Copyright owner to such an extent as to affect prejudicially the owner of the

Copyright.

449

Therefore, in an infringement action, the defendant must know or has reason to

believe that such work is an infringing copy.

450

This provision is similar to that of the Indian

Act except that in the latter, there is no requirement of guilty knowledge or reasonable belief

that the article is an infringing one.

451

Similarly, the U.S. Act provides that the exhibition

must be for commercial distribution, financial advantage, or private financial gain; and that

the infringement must be willful.

452

Thus, for exhibition to amount to violation, the work

must have been exhibited in public by way of trade. For example, the English Act requires

that in an infringement action, it must not only be proved that the defendant exhibited the

infringing work in the public, it must be shown that such exhibition is in the course of trade;

or though not in the course of business, the exhibition was to such an extent as to affect

prejudicially the owner of the Copyright. Above all, the defendant must know or has reason

to believe that such work or article is an infringing one, contrary to the requirements of the

Indian and Nigerian Acts. In Van Dusen v Kritz,

453

the defendant who is a tailor had made

use of drawings and exhibited them at various public places and his shop. The plaintiff

449

C.D.P.A. Section 23 (c) & (d).

450

Ibid. Section 23.

451

C.R.A.I. Section 51 (iii).

452

U.S.C. Section 506 (a) (l).

453

[1936] 2 K.B. p.176.

116

complained against this and sued the defendant for damages and account. It was in evidence

that the defendant withdrew the offending materials within a reasonable time after the

plaintiff‟s solicitors informed him about the infringement. The Court held that in the

circumstances of the case, there was no exhibition by way of trade of a work that the

defendant knew to be an infringement of the plaintiff‟s Copyright as required under the Act.

The phrase „has reason to believe‟ as used by the English Act

454

was interpreted in the case of

L.A. Gear Inc. v Ifi-Tec Sports Plc.

455

to involve the concept of knowledge of facts from

which a reasonable man would arrived at the relevant belief, having been giving sufficient

time to evaluate the facts. Thus, in Hoover Plc. v George Hulme (Stock Port) Ltd.,

456

the

defendant‟s managing director was held not to have the requisite knowledge under section (3)

of the 1956 English Act,

457

as the defendant had not been afforded reasonable time to access

the claims of the plaintiff.

The Copyright law frowns at the unauthorized distribution, offering for sale or hire of work

as constituting secondary infringement. Accordingly, the Nigerian Act provides that it is an

infringement for a person who does not have the license or authorization of the owner of the

Copyright to distribute by way of trade, offering 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 the relevant provisions of the Act.

458

The English and Indian Acts contain

similar provision except that the Indian Act does not contemplate „injurious‟ distribution,

while the English Act requires proof of reasonable knowledge.

459

However, the U.S. Act‟s

provision seem to be narrow in that it only talks of the willful infringement of Copyright for

purposes of commercial advantage or private financial gain by way of reproduction and

454

C.D.P.A. Sections 22.

455

[1992] FSR. p.121.

456

[1982] F.S.R p.565.

457

This provision is in pari materia with the current English Act.

458

C.R.A.N. Section 15 (1) (d).

459

C.D.P.A. Sections 23 (b) & (24) (1) (d); U.S.C. Section 51 (ii).

117

distribution of such works, without more. It is submitted that this latter lukewarm provision is

not Copyright friendly and this will make it impossible for the Act to effectively combat

violations of Copyright in this 21

st

century. It suggested that the U.S. Act be amended along

the line of the other three Acts under consideration.

It is very clear from the provisions of the Nigerian Act considered above that the prohibited

act of distribution must be „by way of trade‟. It should not be read to simply mean the

prohibiting, distribution or any „injurious‟ distribution for that matter. The Court has

interpreted the phrase „by way of trade‟ to mean „in the course of trade‟ and not merely „via

trade‟.

460

The latter would have made the mere purchase of infringing copies from a trader an

infringement of Copyright. Thus, the emphasis should always be on the quality of possession

and not the source of the offending material. According to the Court, a person who bought

any infringing material for his own consumption should not be held liable under the section

but the plaintiff has to prove that a person in possession of infringing copies with full

knowledge, had them for the purposes of trading with them, either by selling or hiring them

in the course of business.

It is observed that the phrase „or for any purpose prejudicial to the owner of the Copyright‟

used by the Nigerian Act must be taken to mean activities outside the course of trade. The

English Act has somewhat similar provision but it uses the phrase „distributes otherwise than

in the course of business to such an extent as to affect prejudicially the owner of the

Copyright‟.

461

This prohibits non-commercial or gratuitous distribution which even though

not for profit making, but yet are prejudicial to the owner of the Copyright. Thus, under the

English Act, it is immaterial that the defendant did not know that the copies were infringing;

that harm was not intended, or that the defendant did not intend any benefit. The English Act

further prohibits a person who without the license of the Copyright owner transmits the work

460

Reid v Kennet (1986) 83 Cr. App. p.63.

461

C.D.P.A. Section 23 (1) (d).

118

by means of a telecommunications system, otherwise than by communicating to the public,

knowing or having reason to believe that infringing copies of the work will be made by

means of the reception of the transmission in the United Kingdom or elsewhere.

462

It is noted

that the U.S. and Indian Acts have provisions equivalent to this provision of the English

Act.

463

It is therefore suggested that the Nigerian Act be amended in line with the more

elaborate and Copyright friendly English Act, in order to ensure the effective protection and

enforcement of Copyright.

Copyright laws prohibit the unauthorized making or being in possession of contrivances used

to commit piracy. According to the Nigerian Act, a person who, without the license or

authorization of the Copyright owner, makes or has in his possession, plates, master tapes,

machines, equipment or contrivances used for the purpose of making infringing copies of a

work is liable for infringement.

464

The English Act also prohibits the making, importation to

the United Kingdom, selling or letting for hire, or offering or exposing for sale or hire an

article specifically designed or adapted for making copies of the work, in the course of

business, knowing or having reason to believe that it is to be used to make infringing

copies.

465

It seems these provisions of the Acts seek to assist right owners who may not be

able to prove actual infringement by pre-empting infringing activities. However, it does

appear that in order to succeed under these provisions, the plaintiff must prove that the

material found in the defendant‟s possession have indeed been used to infringe his work. The

Nigerian Act does not require that the article or contrivance be specifically designed or

adapted for making copies of that work, although that may have been the intention of the

infringer. The Act expressly requires that the equipment or contrivances must be used for the

purposes of making infringing copies of the work.

462

Ibid. Section 24 (2).

463

U.S.C. Section 506 (1) (a) & (b); C.R.A.I. Section 51.

464

C.D.P.A. Sections 24 (1) & 107.

465

C.R.A.N. Section 15 (1) (e).

119

It is submitted that there is no reason why this provision should be read to mean something

that is merely capable of being used for making infringing copies or that they have been used

to infringe some other works, other than the work of the Copyright owner. If the plaintiff is

allowed to do otherwise, it would mean giving to the plaintiff a remedy beyond the limit of

his rights.

It is well noted that under the English Act, it suffices if the defendant is found with any

contrivance designed or adapted for making copies of the plaintiff‟s works so long as he does

so in the course of his business; or if he has knowledge or has reason to believe that such

contrivance is to be used to make infringing copies.

466

This is a welcome development

worthy of emulation. It is suggested that this provision be incorporated into the Nigerian Act

through amendment. It is however surprising that both the India and United State Copyright

Acts failed woefully to provide for this form of infringement. It is suggested that these Acts

be urgently amended along the line of the English Acts in order to ascribe efficacy to these

Acts.

Another form of secondary infringement is illegally permitting the use of a place to be used

for a performance to the public of a work. The Nigerian Act provides that Copyright is

infringed by any person who without the license or authorization of the owner of Copyright

permits a place of public entertainment or of business to be used for a performance to the

public of the work, where the performance constitutes an infringement in the work unless the

person permitting the place to be used was not aware and has no reasonable ground for

suspecting that the performance would be an infringement of the Copyright in such work.

467

Even though this provision is absent in the U.S. Act, the Indian Act prohibits a person to

permit for profit, any place to be used for the communication of the work to the public where

466

C.D.P.A. Section 24.

467

C.R.A.N. Section 15 (1) (f).

120

such communication constitutes an infringement of the Copyright in the work, unless he was

not aware and had no reasonable ground for believing that, such communication to the public

would be an infringement of Copyright.

468

The position of the English Act is that where the

Copyright in a literary, dramatic or musical work is infringed by a performance at a place of

public entertainment, any person who gave permission for that place to be used for the

performance is also liable for the infringement unless when he gave permission he believed

on reasonable grounds that the performance would not infringe Copyright.

469

These

provisions of the two Acts adumbrated above share semblance except that the English Act

enumerated only three kinds of works, viz; literary, dramatic and musical works, while the

Nigerian Act contemplates all works protected under the Act. Again, for there to be an

infringement under the Indian Act, the use of the premises must be for profit making

ventures. Thus, under the Nigerian, Indian and English Acts, liability is subject to knowledge.

In the wisdom of the Courts, the knowledge contemplated by the Acts has to be actual and

not merely constructive.

470

However, this does not mean that the Court may not infer

knowledge on the part of the defendant since by the ordinary rules of evidence, a man may be

presumed to be possessed of the ordinary understanding expected of persons in his line of

business.

471

Furthermore, it is clear from the express provisions of the Acts that in order to prove

infringement under this provision, it must be shown that the place in question is a place of

public entertainment or of business, and not a private or domestic premises. The Nigeria Act

does not define the term „a place of public entertainment‟. However, under the English Act,

the term includes „premises which are occupied mainly for other purposes but are from time

468

C.R.A.I. Section 51 (a) (ii).

469

C.D.P.A. Sections 25 (1).

470

Van Dusen v. Kritz [1938] 2K.B. p.176; R.C.A. Corp. v Custom Cleared Sales Pty. Ltd. [1978] F.S.R. p.576.

471

J Asein, Nigerian Copyright Law & Practice , Op. Cit. p.221.

121

to time made available for hire for purposes of public entertainment‟.

472

This definition is

good enough to be made applicable to the other Acts under consideration so that the

determinant factor will not be the original character of the place or premises, but the fact that

it is being used at the material time for public entertainment. In interpreting the phrase „place

of dramatic entertainment‟ under the Dramatic Copyright Act, 1833, the Court rightly

expressed the view that the public performance of a dramatic entertainment would render a

place for, the time being, to fall within the definition.

473

It is worthy to note that except in the case of sound recordings, the Nigerian Act exempts

from Copyright control any communication to the public of a work, in a place where no

admission fee is charged in respect of the communication, by any Club whose aims is not

profit making.

474

It is however submitted that even though this exception is supposed to apply

to other categories of works apart from sound recording, the restriction of the exception to

Clubs suggests limited application. Thus, other places of public entertainment are not covered

by that exception. In Phonographic performance Ltd. v South Tyneside Metropolitan

Borough Council,

475

the Court refused to accept a local authority as an „organization‟ within

the contemplation of the current English Act

476

which provides for Clubs and Societies. The

Court reasoned that the latter groups comprised individuals who were bound together in a

common activity or enterprise, while a local authority had a different character as an entity

with specific statutory powers and duties including the raising of money and provision of

administrative services and functions for a particular area.

It is observed that the Nigerian and India Acts do not clearly spell out who is to be held liable

for breach of the Copyright in relation to the exemption under discussion apart from the

472

C.D.P.A. Section 25 (2).

473

Wall v Taylor [1882] 11 Q.B.D. p.102.

474

C.R.A.N. Paragraph (o) of the Second Schedule.

475

[2001] E.M.L.R. p.17.

476

C.D.P.A. Section 67 (1).

122

person who permitted the use of the place for the alleged illegal purpose. However, the

position is not the same under the English Act which provides that where Copyright in a work

is infringed by a public performance of the work, or by the playing or showing of the work in

public, by means of apparatus for playing sound recordings, showing films, or receiving

visual images or sounds conveyed by electronic means, the following persons shall be held

liable for the infringement:

477

(i) a person who supplied the apparatus, or any substantial part of it is

liable for the infringement if when he supplied the apparatus or part-

(a) he knew or had reason to believe that the apparatus was likely to be

used as to infringe Copyright; or

(b) in the case of an apparatus whose normal use involves a public

performance, playing or showing, he did not believe on reasonable

grounds that it will not be so used to infringe Copyright;

(ii) or in the case of an apparatus whose normal use involves a public

performance, playing or showing, he did not believe on reasonable

grounds that it would not be so used to infringe Copyright;

(iii) the occupier of the premises who gave permission for the apparatus to

be brought into the premises, if when he gave permission, he knows or

had reason to believe that the apparatus was likely to be so used to

infringe Copyright;

(iv) a person who supplied a copy of a sound recording or film used to

infringe Copyright, if when he supplied it, he knew or had reason to

believe that what he had supplied, or a copy made directly or indirectly

from it, was likely to be used to infringe Copyright.

This shows that in all cases of infringement contemplated by the provisions of the English

Act under consideration, the infringer is to be held liable only if he knew or had reason to

believe on reasonable grounds that infringement of the Copyright in the work will occur, or

that the copy procured or supplied will be used to infringe Copyright.

It is submitted that the permission herein could be given either expressly or by implication.

However, for such permission to be offensive, it must be more than a mere general

477

C.D.P.A. Section 26.

123

authorization to use the place for the public performance of the work.

478

Thus, once a

performance that infringes Copyright in a work is permitted, it is immaterial that no fee was

collected from the audience, or that such performance is not for gain. This is the position

under the Acts under consideration except the Indian Copyright Act which requires that such

performance must be profit oriented. This provision in the latter Act is to say the least, anti

Copyright. It is therefore suggested that the Indian Act be urgently amended along the line of

the Nigerian and English Acts to delete the requirement of profit for such performance.

It is observed that under the Nigeria Copyright Act, Copyright is infringed by any person who

without the license or authorization of the owner of the Copyright, performs or causes to be

performed for the purposes of trade or business or as supporting facility to a trade or

business, any work in which Copyright subsists.

479

It is clear that the performance

contemplated by this provision needs not be public. The main aim of this provision is to

prohibit performances aimed at promoting trade or business; or providing supporting

facilities to trade or business which otherwise would not come within the meaning of

performance in public earlier discussed in this work. In this context, the activities of business

enterprises such as Banks, Service Providers, Microsoft companies and Mobile Phone

Dealers etc, which play music to entertain their workers and customers, may be caught up by

this provision. Similarly, commercial advertisement jingles with background music may be

constructed as supporting facility to trade or business if such supporting music is inserted

without the consent of the Copyright owner.

Bearing in mind that the Nigerian Act had dealt with public performances of works as earlier

discussed in this work which conveniently covers this and of Copyright violation

contemplated under this heading, one wonders the rationale behind the inclusion of this

478

Performing Right Society Ltd. v Ciryl Theatrical syndicate Ltd. [1924] 1K.B.1. p.38; Wall v Taylor supra.

p.102.

479

C.R.A.N. Section 15 (1) (g).

124

category of infringement under this section of the Act. It is submitted that this inclusion

serves no useful purposes. Little wonder no such provision exists in the Copyright Acts of the

other jurisdictions under consideration. It is therefore suggested that the Nigerian Act be

urgently amended to expunge this provision of the Act.

3.8.3 Criminal Infringement

The first indigenous Copyright Act of Nigeria of 1970 had no provisions for criminal

infringement of Copyright. Criminal infringement was then provided for under the general

criminal laws of Nigeria.

480

It was then an offence for any person to knowingly do any of the

following Acts:

481

(a) make for sale or hire any infringing copy of a Copyright work;

(b) sell or let for hire any infringing copy of a Copyright work;

(c) distribute infringing copies of a Copyright work for the purposes of

trade or to such extent to affect prejudicially the owner of the

Copyright; or by way of trade, exhibit in public, any infringing

copy of a Copyright work.

The Codes also prohibit any person to make or posses any plate for the purposes of making

infringing copies of a Copyright work, or to knowingly cause any such work to be performed

in public without the consent of the owner of the Copyright.

482

The current Copyright Act of

Nigeria expressly repealed the provisions of the Criminal Code Act relating to Criminal

infringement and incorporated a replica of these provisions into the Copyright Act.

483

While

doing so, the Act does not make any mention of similar provisions in the Penal Code thereby

leaving everyone in doubt as to whether these provisions of the Penal Code are still operating

in competition with the Copyright Act.

480

Sections 491-493 of the Criminal Code (Cap 77), Laws of the Federation of Nigeria, 1990 & sections 426-

427 Penal Code (Cap P3), Laws of the Federation of Nigeria, 2004.

481

Ibid

482

Ibid.

483

C.R.A.N. Section 52.

125

It is submitted that this omission cannot by any stretch of imagination be said to be

intentional, or that the drafters of the Copyright Act intended to allow the parallel operation

of these sections of the Penal Code in Northern Nigeria while prohibiting same in Southern

Nigeria. It is further submitted that this omission is an oversight. It is therefore suggested that

these provisions of the Panel Code under consideration be expressly repealed via immediate

amendment of the Copyright Act of Nigeria. This will make for uniformity in the application

of the Copyright Act Nationwide.

The Nigerian Act provides that any person who:

484

(a) makes or causes to be made for sale, hire, or for the purposes of trade or

business any infringing copy of a work in which Copyright subsists, or

(b) imports or causes to be imported into Nigeria a copy of any work which

if it had been made in Nigeria would be an infringing copy; or

(c) makes, causes to be made, or has in his possession, any plate, master

tape, machine, equipment or contrivances for the purposes of making

any infringing copy of any such work;

shall, unless he proves to the satisfaction of the Court that he did not

know and had no reason to believe that any such copy was an

infringing copy of any such work, or that such plate, master tape,

equipment or contrivance was not for the purpose of making infringing

copies of any such work, be guilty of an offence under this Act and

shall be liable on conviction to a fine of an amount not exceeding

N1,000 for every copy dealt with in contravention of this section or to

a term of imprisonment not exceeding five years, or to both such fine

and imprisonment.

The Act further provides that

485

any person who-

(a) sells or lets for hire or for the purposes of trade or business, exposes

or offers for sale or hire any infringing copy of any work in which

Copyright subsists; or

(b) distributes for the purposes of trade or business any infringing copy of

any such work; or

(c) has in his possession, sells, lets for hire or distribution for the

purposes of trade or business or exposes or offers for sale or hire any

484

Ibid. Section 20 (1) (a)-(c); N. C. C. v Madu (Unreported Suit No. FHC/L/40

c

/2015, judgment delivered on

14

th

Feb., 2017, by Oguntoyinbo, J. at Federal High Court, Lagos Division).

485

C.R.A.N. Section 20 (2).

126

copy of a work which if it had been made in Nigeria would be an

infringing copy;

(d) has in his possession other than for his private or domestic use, any

infringing copy of any such work-

shall unless he proves to the satisfaction of the Court that he did not

know and had no reason to believe that any such copy was an

infringing copy of any such work, be guilty of an offence under this

Act and shall be liable on conviction to a fine of N100 for every copy

dealt with in contravention of this section, or to a term of

imprisonment not exceeding two years or in the case of an individual,

to both such fine and imprisonment.

The Act also prohibits a person who without the consent of the owner of the Copyright,

distributes in public for commercial purposes, copies of the work by way of rental, lease,

hire, loan or similar arrangement, and renders him or her liable upon conviction to a fine of

N100 for every copy dealt with or imprisonment for six months or to both such fine and

imprisonment.

486

It is a good defence to the offences provided in this section of the Nigerian

Act under discussion that the accused person never knew and had no reason to believe that

the copy concerned was an infringing copy of any such work, or that such plate master tape,

machine, equipment or contrivance was not for the purposes of making infringing copies of

such work. In Ubi Bassey Eno v N.C. C.

487

the Appellant who was convicted by the Court of

first instance for being in possession of smart cards and other equipment for illegal

rebroadcasting of signals argued on appeal that since he lawfully obtained the smart card and

equipment, their possession cannot be said to be unlawful. In interpreting the provision of the

Act under discussion,

488

the Court of Appeal held that the section makes it an offence to

possess the equipment for the purpose of making infringing copies.

The Court went ahead and

concluded that the equipment in the present case were in fact used for illegal rebroadcasting,

which is a reproduction of a broadcast and since it is illegal, each rebroadcast is an infringing

copy.

489

Similarly, in Nigerian Copyright Commission v Nwankwo,

490

the accused person

486

Ibid. Subsection (3).

487

6 I.P.L.R. p.93.

488

Copyright Act, 1988, section 18 (1) (c), now C.R.A.N. Section 20 (1) (c).

489

Ibid.

127

was sentenced to a fine of one hundred naira for each copy of the five hundred and four

infringed copies of DVD/CD possessed and presented.

It is worthy of note that as with the other criminal trials, each of the elements of the offences

provided under this section must be proved beyond reasonable doubt.

491

It is not sufficient to

show that the accused person had done wrong. Infringing actions must be linked with the

particular Copyright work and related to a right that is preserved thereto.

492

For the accused

person to succeed on the plea that he did not know and had no reason to believe that the copy

he dealt with was an infringing one, it is not enough for him to merely assert this plea, rather,

the facts must line up with the plea. The facts of the case may also compel the Court to draw

an inference that the accused person did not know or had reason to believe that the work

found on him was infringing. In Federal Republic of Nigeria v Asika,

493

the accused person

who was a bookseller in the city of Kano was charged with the offence of unlawfully offering

for sale infringing copies of Copyright work contrary to and punishable under the Copyright

Act.

494

The publisher‟s representative discovered pirated copies of his principal in the accused

person‟s shop and then purchased a copy. He came back a month later and purchased six

more copies of the work and was issued with receipt by the accused person which was

admitted by the latter under cross examination. He however told the police that he bought the

pirated copies from Kenneth and gave his address, though Kenneth was never found. He

maintained in his defence that if he knew that the books were pirated books; he would not

have sold them to a representative of the publisher whom he foreknew in that capacity before

the transaction. The Court found that the physical elements of the offence were proved. It

however held that it was not proved beyond reasonable doubt as required in criminal cases

490

Unreported Suit No. FHC/ABJ/CR/14/2010 quoted by J. Asein, Nigerian Copyright Law & Practice, Op.Cit.

p.227.

491

Eno v Nigeria Copyright Commission 6 I.P.L.R. p.93; Compact Disc Technologies Ltd. & 2 Ors. v

Musical Copyright Society of Nigeria G.T.E. 6 I.P.L.R. p.199.

492

Musa v Le Maitre [1987] F.S.R. p.272.

493

Suit No. FHC/K/2CR/92, quoted by J. Asein, Nigerian Copyright Law & Practice, Op. Cit. p.230.

494

Nigerian Copyright Act, 1988, section 18 (2) now C.R.AN. Section 20 (2) (g).

128

that the accused person knew that the books he was selling or had in possession were pirated

books or had been printed by unauthorized persons. It has also held in a similar case that:

495

there is need for the prosecution to prove against an accused person

charged under section 20 of the Act that (i) Copyright subsisted in the

work; (ii) the article in respect of which the charge was brought was in

the possession of the accused person by way of trade; (iii) the article was

an infringing copy; and (iv) the accused person had reason to believe

that the article was an infringing copy.

It is apposite to state at this juncture that criminal infringement of Copyright is provided for

by the Indian Act. The Act expressly provides that:

496

any person who knowingly infringes or abets the infringement of the

Copyright in a work; or any other right conferred by this Act except the

rights conferred by section 53A shall be punishable with imprisonment for

a term which shall not be less than six months but which may extend to

three years and with fine which shall not be less than fifty thousand rupees

but which may extend to two Lakh rupees; provided that where the

infringement has not been made for gain in the course of trade or business,

the Court may, for adequate and special reasons to be mentioned in the

judgment, impose a sentence of imprisonment for a term less than six

months or a fine less than fifty rupees.

This Act also provides that any person who knowingly makes or has in his possession any

plate for the purpose of making infringing copies of any work in which Copyright subsists

shall be punishable with imprisonment which may extend to two years and shall also be liable

to fine.

497

The Act enhanced the penalty on second and subsequent convictions.

498

It thus

provides that whoever that has already been convicted of an offence under section 63 and is

again convicted of any of such offences shall be punishable for the second and for every

subsequent offence, with imprisonment for a term which shall not be less than one year but

which may extend to three years and with fine which shall not be less than one Lakh rupees

but which may extend to two Lakh rupees.

499

The Act also prohibits the unauthorized use of

495

Musa v Le Maitre supra. p.272.

496

C.R.A.I. Section 63.

497

Ibid. Section 63.

498

Ibid. Section 63A

499

Ibid.

129

computer programme in the same manner and circumstances stated under the Act discussed

above.

500

The English Act provides for criminal infringement of Copyright almost in the same manner

as the Nigerian Act,

501

save that the English Act punishes a person found with contrivances

for making infringing copies of works on summary conviction to imprisonment for a term not

exceeding three months or a fine not exceeding fifty thousand pounds or both; or on

conviction on indictment to a fine or imprisonment for a term not exceeding two years or

both.

502

It must be pointed out that one striking similarity between the Nigerian, Indian and English

Acts is that knowledge is of essence in the commission of the offences under the sections

embodying criminal liability. Moreover, the infringement must have occurred in the course of

business, though the English and Indian Acts further provide that the accused is liable even

though the breach occurred not in the course of business; or for gain in the course of trade or

business, or where the infringement has not been made for gain in the course of trade or

business.

It must be pointed out that where criminal infringement is committed by a body corporate in

the jurisdictions under consideration, the body corporate and every person who is in charge of

it at the time of the offence was committed would be held liable for the offence so long as the

offence was committed with the knowledge of that person.

503

Thus, it must be proved that the

offence was committed with the consent or connivance of any of the officers of the body

corporate. However, nothing in the English Act shall render any such person or officer of the

body corporate liable to any punishment if he proves that the offence was committed without

500

Ibid. Section 63B.

501

C.D.P.A. Section 107.

502

Ibid. subsection (4A).

503

C.R.A.N. Section 22 (1); C.D.P.A. Section 110; C.R.A.I. Section 69.

130

his knowledge or that he exercised due diligence to prevent the commission of such

offence.

504

It submitted that the provisions of the Acts considered above are adequate and Copyright

friendly. It is however disappointing that the U.S. Copyright Act does not contain elaborate

provision on criminal infringement of Copyright. It merely provides that:

505

any person who willfully infringes Copyright shall be punished as

provided under the Criminal Code of the United States of America, if the

infringement was committed-

(a) for purposes of commercial advantages or private financial gain;

(b) by the reproduction or distribution, including by electronic means,

during any 180-day period, of 1 or more copies or phonorecords of 1 or

more Copyrighted works, which have a total retail value of more than

$1,000; or

(c) by the distribution of a work being prepared for commercial

distribution, by making it available on a computer network accessible to

members of the public, if the person knew or should have known that

the work was intended for commercial distribution.

The Code went ahead to prescribe various terms of imprisonment for such offenders.

506

It

further criminalizes unauthorized fixation and trafficking in sound recordings and music

videos of live musical performances; and unauthorized recording of motion pictures in a

motion picture exhibition facility.

507

Thus, the provisions of the U.S. Copyright Act regarding

criminal infringement are duplications of the provisions of the U.S. Criminal Code,

.508

This

means that criminal infringement of Copyright in the United States is regulated by the two

Acts abovementioned.

It is submitted that this situation is bound to generate confusions as it is unclear under which

of the two statutes a suspect/infringer should be charged. It is therefore suggested that the

504

C.D.P.A. Section 110.

505

U.S.C. Section 506.

506

Section 2319 (2) Title 18, U.S. Criminal Code.

507

Ibid. subsection (2).

508

Ibid.Section 23 19A & Section 2319B.

131

U.S. Act be urgently amended to expunge from the Criminal Code, the powers and authority

to regulate Copyright infringement proceedings of any sort.

3.8.4 Copyright Infringement and the Internet

With the development of the internet in the 1980s and the growth of online services such as

the World Wide Web,

509

electronic mail, and file transfer protocol servers,

510

Copyright

Law faced major challenges.

511

Internet services, together with other digital technologies

enabled very easy reproduction and worldwide disseimination of Copyright protected works

in high speed quantities with almost no expenses and loss of quality. Moreover, because of

specific and innovative nature of the internet, the process could hardly be controlled by the

Copyright holders. One can now obtain a music file, video record, visual or literary work for

free and without license given by the right holder. Traditional Copyright enforcement

mechanisms failed in the fight against international and widespread online piracy. The

implications of the operations which take place on or through the internet on Copyright

cannot therefore be over emphasized. According to Olueze, the Copyright consequences of

operations on the internet may be tabulated as follows:

512

i). the digitization of a Copyright work for the purpose of storage in

computer- held databases linked to the internet;

ii). the actual storage of the Copyright work in the computer- based data

bases;

ii). the act of downloading or uploading of such working computer based

databases whether intentionally;

iv). exploiting or appropriating the work, for example, making copies or

reproduction, giving public performance of the work etc, without the

consent or authorization of the Copyright owner.

Similarly, software can be transported to a computer user through the interstate telephone

lines of the World Wide Web, just as it can travel on the interstate highways in the back of a

509

Hereinafter referred to as „www‟.

510

Hereinafter referred to as „ftp‟.

511

R Matulionyte, „Copyright on the internet : Does a User Still Have any Rights at All‟ Hanse Law

Review (Hansel R.) [Vol. 1 No. 2]. p.177.

512

M Olueze, Copyright Law(Lagos: Maglink International Ltd. 1998) p.11.

132

truck to a computer store and the eventual end user.

513

In this manner, the internet and more

traditional means of transportation such as highways serve the same purpose of moving

goods across state lines.

514

The result is that digitization of information has created more

access to copyrightable works, in most cases unauthorized access, to the detriment of the

right owners.

515

These critical issues revolve around a number of problems ranging from how

to identify or determine what constitutes unauthorized exploitation of works vide the internet,

to who may be liable therefor;

516

how will liability be determined in the long chain of

information transmission ranging from content provider via several service providers,

network operators and access providers to the end user?

517

Olueze stated that where site

operator merely hyperlinks to another website which has obtained the license of the owner of

Copyright in respect of a work to post the work on the internet, it poses some difficulties to

ascertain who is guilty for Copyright infringement

518

Is it the Site Operator who posted or

uploaded that work on the internet; or the Manager of the website, or the internet service

provider?

519

Possibly, these acts involve the doing of the acts exclusively reserved to the

Copyright owner. It therefore follows that where a site operator makes an unauthorized copy

of a drama for instance, and downloads same on his website, he has prima facie infringed

Copyright in the work, ie, reproducing the work in any material form. Very often however, it

is difficult to ascertain which activities or operations amount to such infringement.

520

Assafa

questioned whether the storage of information in a database placed at the disposal of those

with the means of access constitutes publication?

521

He stated that:

522

513

Ibid.

514

Ibid.

515

Ibid.

516

M Ozioko, „Copyright Provisions Impacting on Access to knowledge: A Comparative Analysis‟, UNIZIK

Law Journal, Vol 7 No. 1 2010.p. 65.

517

Ibid.

518

M Olueze, Copyright Law, Op. Cit.. p.11.

519

Ibid.

520

Ibid.

521

Assafa Endeshaw, „Reconfiguring Intellectual Property for the Information Age: Towards Information

Property‟, http:/iissrn.com/abstract=461180 Access 10/05/10.

133

Most offering on the internet so far have been free and without any

preconditions attached. Most sites are at the stage of practically soliciting

and praying for visitors, hence the competition currently being in terms of

how many hits any site received each day or hour. Consequently, any

suggestion that the offer of any material on the internet amounts to

publication will fail even on the basis of traditional Copyright as payment

would not have been a precondition. There are ongoing attempts by

commentators, Courts and other relevant authorities to grapple with the

problems.

Stretching this argument further, Martens and Halpern observed that Courts reach various

conclusions when dealing with the liability for the posting and uploading of materials on the

internet depending on the facts of the case.

523

While some Courts found liability where a

person merely created and managed a bulletin board onto which infringing materials are

posted by others without the knowledge of the bulletin board operator, others require

something more than mere creation of the forum in order to impose liability. Still other

decisions have declined to find liability due to traditional Copyright defences such as fair

use.

524

In Marobie-FL Inc. v National Association of Fire Equipment Distributors,

525

the

plaintiff sued the defendant for unauthorized copying of its clip art and joined the online

service provider, Northwest Nexus Inc. The Court held that the service provider by merely

providing the facilities for public use by third parties was not liable to the plaintiff for the

Copyright infringement act of the defendant. It was stated in Aclu v Reno thus:

526

Unlike a „brick and mortar outlet‟ with a specific and geographic locate,

and unlike the voluntary physical making of material from one geographic

location to another… the uncontroverted facts indicate that the web is not

geographically constrained. Indeed, and of extreme significance, is the

fact… that web publishers are without any means to limit access to their

sites based on the geographical location of the particular internet user. As

soon as information is published on a website it is accessible to all other

web visitors…

522

.Ibid.

523

Don Martens & S Halpern, „Copyright Law in Cyberspace‟, International business lawyers, April 1999

Vol. 27. No. 4. p.152 quoted by M Ozioko, „Emergence of Digital Technology: Implication for

Copyright Protection in Nigeria‟, Op. Cit. p.26

524

Ibid.

525

983 F. Supp. p.11167, 45 US PQ 2d. p.1236.

526

217 F. 3d p.162 (3d circle 2000).

134

What emerges from the above is that the relative non existence of or difficulty in maintaining

direct supervision over Surfers by the owners of the displayed information transforms the

internet into a visual no man's land.

527

Besides, save for the development of technical devices

that restrain or limit the amount of copying and manipulation, any attempt to keep records of

illegitimate access in order to pursue potential infringers will be costly and counterproductive

in the end.

528

O'Connor opined that „the cyberspace undeniably reflects some form of

geography; chat rooms and websites, for example exist at fixed locations on the internet thus

making it possible to construct barriers on the cyberspace and use them to screen for identity

making cyberspace more like the physical world‟

529

. Accordingly, in Intel Corp v Hamidi,

530

the Court found the defendants action as amounting to the invasion of the plaintiffs

proprietary e-mail system a trespass. Similarly, in Register Com. Inc. v Veno Inc.,

531

the

Court held that the defendants scraping of WHOIS data from the plaintiff's public website

constitutes an unauthorized access to the website and thus computer trespass.

Another trouble associated with Information technology especially on the internet concerns

what has been described as „multimedia‟ which is a convergence of technologies from which

many information technology products have emerged giving rise to a wide range of

possibilities hitherto achievable in the information and technological sector with very vast

implications for the Copyright regime.

532

The new possibility of amalgamating or combining

a diversity of both traditional and entrepreneurial works into one multimedia work seems to

confound existing forms and categories of Copyright. For instance, Compton‟s encyclopedia

consisting of 9 million words of text, 15,000 still images, 45 moving image sequences and 60

527

M Ozioko, „Emergence of Digital Technology: Implication for Copyright Protection in Nigeria‟, Op. Cit.

p.261.

528

Ibid.

529

ACLU v RENO supra. p.354.

530

114.Col. Rptr. 2d p.244.

531

126. F. Supp. 2d 238. p.251 (S. D. N. Y. 2000).

532

M Ozioko, „Emergence of Digital Technology: Implication for Copyright Protection in Nigeria‟, Op.

Cit. p. 265.

135

audio minutes has been put on one CD-ROM disk.

533

Under the Nigerian Copyright Act, the

9 million words of text will be protected as literary works; the photographs as artistic works;

the 45 moving-image sequences as cinematograph films; the 60 audio minutes will be

covered by Copyright in sound recordings, while the underlying computer programs will also

enjoy protection as literary works. The duration of protection for each work will however

vary with the nature of the work. Furthermore, with modern media technology, works or

portions thereof can be altered. It has been reported that a Diet Coke's commercial was made

in which actors Humphrey Bogart and James Cagney; and the musician Louis Armstrong

joined Elton John and other actors in a bar.

534

Bogart was in actual fact not present at the

scene because he was dead and buried at that time.

It is not in doubt that the ultimate end

multimedia product being a derivative work ought to enjoy protection, the form of such

protection being dependent on the nature the work substantially takes. However, the right to

make an adaptation of any work being one of the exclusive rights granted to the owner of

Copyright in such work, it implies that the maker of a multimedia work must necessarily seek

the consent of the owner of the Copyright in the work adapted to create the multimedia

work.

535

Similarly, the protection afforded to the multimedia work extends to only the

original contribution of the maker. The parameters for determining the quantum of such

original content in order to attract protection for the end product might be difficult to

determine because the present Copyright Act of Nigeria does not provide for separate

protection of a work made up of a combination of other protectable works as distinct from the

protection afforded to constituent works. It is submitted that it is imperative to clarify in the

relevant provisions of the Act that a protectable work can consist of the combination or

merger of different individual works. This would ensure that the prerequisites for protection

are not examined separately but in relation to the multimedia work as a whole.

533

Ibid.

534

Ibid.

535

Ibid.

136

Another multimedia type of application is „colorization‟ which is a process that facilitates the

conversion of films initially shot in black and white to be altered such that they seem to have

been shot in colour. This obviously involves an alteration of the original work which requires

the consent of the owner of the Copyright in the original work. The work so altered will

attract protection in favour of the maker so long as sufficient effort was expended in making

same to give it an original character.

536

It has been observed that one of the main characteristics of digital exploitation of works is

that it is not limited to one single national territory but in many cases crosses borders.

537

Cate

aptly observed that:

538

Digital information not only ignores national borders, but also those of

states, territories and even individual institutions... governments are finding

it increasingly difficult, and in some cases impossible to regulate

information effectively, at the very time that the economic power of

information is increasing the political pressure for them to do so. The

globalization of information may be rendering the traditional concept of

sovereignty of the nation states obsolete.

Thus, legally, and economically, cross-frontier distribution of off-line Media is not

distinguished from distribution of traditional analogue copies of works such as books,

records, etc. This development promptly re-echoes the need for the establishment of National,

Regional and International Copyright Courts. It is however submitted that in attempting to

resolve the conflicting jurisdictional issues involved in the above scenario, a distinction must

be made between making available of a work in digital form off-line and making it available

on-line. Besides, the act of reproduction is generally governed by the law of the country in

which the reproduction takes place.

539

In the case of Cross-border distribution of off-line

536

C.R.A.N. Section 2(1).

537

ACLU v RENO, supra. p.354.

538

F Cate: "Introduction: Sovereignty and the globalization of intellectual property" Indiana Journal of

Global Legal Studies. Vol. 6. No. 1 at<http://ijgls.indiana.Edu/archive/06/01/cate.shtml> Accessed

30/09/2005.

539

M Ozioko, „Emergence of Digital Technology: Implication for Copyright Protection in Nigeria‟, Op.

Cit. p.265.

137

media, for instance, CD-ROM, it is submitted that the laws of each country in which the

copies of the protected work are distributed are applicable.

However, during the previous decade, the situation seems to have turned in the opposite

direction. Firstly, technological development fostered the development of the Digital Rights

Management system

540

and technological measures which gradually enabled right holders to

physically control access and use of a work made available online.

541

Nowadays, remedial

concepts have been developed to avert online piracy. These include the use of encryption and

watermarking techniques to protect data and other multimedia works stored on digital video.

Similarly the use of devices that detect or deter production or use has also gained popularity

in the Copyright industries. For instance, in 1997, the Association of American Publishers

proposed the use of a digital object identifier system to indicate the origin and ownership of

online material, as well as Copyright restrictions those accessing it are subject to‟.

542

A tag is

thus placed in the online material such as books or articles, and accepted by users clicking on

an icon which would transport them to the relevant publisher‟s homepage.

543

Aside from

these mechanisms, certain types of technological enforcement mechanisms have emerged to

deal with the problem of sovereignty and jurisdiction, ie, the creation of electronic borders

around a state to secure compliance with laws and policies; imposition of electronic

blockades; and the imposition of electronic sanctions to punish violators.

544

Electronic

borders entail the blocking of states of outsiders from entering the state online through packet

interception of filtering.

545

A number of countries such as China and Saudi Arabia have

established the equivalent of online national borders by requiring service providers to filter

540

Hereinafter referred to as „DRM‟.

541

Committee on Copyright and Other Legal Matters (CLM) „Limitations and Expectations to Copyright and

Neighbouring Rights in the Digital Environment : An Intellectual Library Perspective‟.

http://Hla.org/111/clm/pl/ilp.htm Accessed 20/09/18.

542

Assafa Endeshaw, „Reconfiguring Intellectual Property for the Information Age: Towards Information

Property‟. Op. Cit. p.20.

543

Ibid.

544

Ibid.

545

Ibid.

138

internet traffic

546

These electronic borders replicate general national boundaries on the

internet.

547

By creating an electronic border, a state prevents communication with prospective

offenders and isolates those offenders outside the state.

548

As a corollary to an electronic internet border, states may initiate police action to stop an

offender‟s transmission from going outside the offender‟s country.

549

This type of blockade

prohibits an offender from participating on the internet outside the offender‟s country; and is

the equivalent of incarceration and home confinement. In effect, the enforcing state creates

an electronic prison that is co-extensive with the host country.

550

Again, states may

electronically sanction offenders by using technologies to penalize or destroy the offender‟s

online resources.

551

Such sanctions may include denial of service or seizure of offender‟s

web pages or indeed crippling of the offender‟s host server.

552

As a matter of fact, the role

and importance of DRM in the enforcement of Copyright cannot be overemphasized. Apart

from the use of Public/Private Keys, technical protective techniques such as encryption and

watermarking employed by Digital Management Systems may serve as Digital Certificates

which are similar to the physical reality where a person has to identify himself upon

payment, a person has to prove his virtual identity in the e-market with the help of a digital

certificate.

553

The digital certificate is actually the link between the person and his virtual

certificate. Digital certificate is created using a cryptographic technique that connects a

person‟s identity with his or her public cryptographic key. Digital signatures are issued by

certificate authorities that offer guarantees that the public key belongs to the person whose

546

Ibid.

547

Ibid.

548

Ibid.

549

Ibid.

550

Ibid.

551

Henry, M.Image „Watermarking Hidden Bits:A Survey of Techniques For Digital Watermarking‟

http://www.vu.union.edu/shoemakc/watermarking/html. Accessed 12/04/2016.

552

Ibid.

553

Ibid.

139

name is in the certificate.

554

Furthermore, technical protection may create Access Control.

Copy protection attempts to find ways of limiting the access to Copyrighted materials and/or

inhibiting the copy process itself.

555

Examples of copy protection include encrypted digital

television broadcast, access controls to Copyrighted software through the use of license

severs and technical copy protection mechanism on the media.

556

In protecting intellectual

property, Digital Rights Management Systems not only have to provide prevention from

copying, but also access control.

557

Secure Sockets Layer and Transport Layer Security are

cryptographic protocols that provide secure communications on the internet.

558

The Protocols

allow client/server applications to communicate in a way designed to prevent eavesdropping

tampering and message forgery. Intellectual Property Security is a standard for searing

internet protocol communications by encrypting and/or authenticating all Intellectual

Property Packets. It also provides security at the network layer.

559

Another method employed by DRM Systems to protect digital media is through the process

of Finger Printing. This involves the fingerprinting of each copy with the purchaser‟s

information.

560

Fingerprints present an extension to watermarking and can be both visible

and invisible.

561

Similarly, the Rights specification language presents the Mechanism for

describing the author or publisher‟s rights.

562

This data dictionary of rights terms gives a

standard vocabulary to describe the Digital Rights Management and other relevant issues. In

the same vein, the Trust Infrastructure refers to the technologies that support transport market

all the way to the consumer. On the other hand, upon purchasing a digital content on the

WEB, in presence of a doubt, a consumer should be able to check if the content is authentic

554

Ibid.

555

Ibid.

556

Ibid.

557

Ibid.

558

Ibid.

559

Ibid.

560

Ibid.

561

Ibid.

562

Ibid.

140

by performing the one-way hash function and comparing his result with the message digest

provided to him from the content provider. If both outputs are the same, the consumer can be

sure that the obtained content has not been tampered with and is authentic. This process is

called Hashing.

563

However, concerns have been raised about the danger of over legitimizing the protective

systems as they are seen as expanding the protectability of works at the expense of research

and education.

564

It is feared that the strengthening of Copyright protection in the digital field

will increasingly exclude users from the enjoyment of works and the role of libraries as

information agents in the digital age will seriously be endangered.

565

This will likely disturb

the fundamental balance in Copyright law between the scope of exclusive rights and public

domain, as well as between the restriction and promotion of competition.

566

The result of that

above analysis indicates a compelling need for an improvement in the existing legal rules

relating to Copyright protection. This has been echoed by the Nigerian Minister of Science

and Technology, Professor Turner Soun thus:

567

I dare say that the legal framework is still inadequate to cope with the fast

paced development and challenges in the ICT sector particularly the

internet.

In line with this development, the United States Congress has responded to the internet

related challenges by enacting an Act

568

which now gives internet service providers

protection from liability against claims of Copyright infringement concerning material

residing at the direction of a user or subscriber on their systems or networks; or arising from

infringing materials that a third party routes through their servers in return for making it

563

M Ozioko, „Emergence of Digital Technology: Implication for Copyright Protection in Nigeria‟, Op. Cit

p. 262

564

Ibid.

565

Ibid.

566

Assafa Endeshaw, „Reconfiguring Intellectual Property for the Information Age: Towards Information

Property‟,Op. Cit. p. 20.

567

Nigerian Laws Incapable of Combating Piracy, Business Times, December 20th, 2004, p. 31

568

Digital Millennium Copyright Act,1998, hereinafter referred to as „D.M.C.A‟.

141

easier for an infringement claim to be made and acting expeditiously to remove or disable

access to the infringing material.

569

The infringement liability limitation was achieved by an

enactment which is part of the Digital Millennium Copyright Act,

570

and which amended the

current U.S. Copyright Act, by adding section 512 thereto. To qualify for the limitation of

liability provided for by the Act, the Internet Service Provider

571

is required to register with

the U. S. Copyright Office and fulfill other conditions such as the appointment of an agent to

receive notices from persons asserting Copyright infringement.

572

The agent‟s name and

contact person must be displayed prominently on the ISP's website and be filed with the

Copyright Office.

573

If the ISP's agent receives a complaint that certain materials contained on

a subscriber's site infringes on another's Copyright, the ISP will have statutory protection if it

removes or blocks access to the material and promptly notifies the subscriber of its actions.

574

If the subscriber provides a counter notification, the ISP must promptly provide a copy of

same to the original complainant and inform that person that it will replace the removed

material or cease disabling access to it in 10 business days.

575

The ISP must then replace the

material or restore access in not less than 10 or more than 14 days unless a Court order blocks

it from doing so.

576

It is obvious that the failure of the Nigerian legislature to enact a law similar to the Online

Copyright Infringement Liability Limitation Act has contributed to the upsurge of internet

based piracy. It is therefore suggested that an Act of such nature be urgently enacted by the

Nigerian Legislature to nip online piracy on the bud.

569

Frank Peterson, „New Protection and New Rules for Internet Service Providers‟, Intellectual Property

and Technology Law Update,Vol.2 Issue 1. March, 1999.1.

570

Online Copyright Infringement Liability Limitation Act, 1998.

571

Hereinafter referred to as „ISP‟

572

U.S.C. Section 512.

573

Ibid.

574

Ibid.

575

Ibid.

576

Ibid.

142

CHAPTER FOUR

4.0 COPYRIGHT PROTECTION AND ACCESS TO INFORMATION

4.1 Exceptions to Copyright Control

In order to protect the interest of the public, the Copyright system tries to mitigate the

absolute protection of the rights granted to creators of works by striking a balance between

the interests of the public and those of Copyright owners for purposes of advancing

knowledge and information. This balance is achieved through the introduction of the various

limitations and exceptions to the statutory rights of Copyright owners. In Nigerian for

example, the right conferred in respect of a work by Section 6 of the Nigerian Act does not

include the right to control-

577

(a) the doing of any of the acts mentioned in the said sections 6 by

way of fair dealing for purposes of research, private use, criticism

or review or the reporting of current events, subject to the

condition that, if the use is public, it shall be accompanied by an

acknowledgment of the title of the work, and its authorship except

where the work is incidentally included in a broadcast;

(b) the doing of any of the aforesaid acts by way of parody, pastiche,

or caricature;

(c) the inclusion in a film or a broadcast of an artistic work situated in

a place where it can be viewed by the public;

(d) the reproduction and distribution of copies of any artistic work

permanently situated in a place where it can be viewed by the

public;

(e) the incidental inclusion of an artistic work in a film or broadcast;

(f) the inclusion in a collection of literary or musical work which

includes not more than two excerpts from the work, if the

collection bears a statement that it is designed for educational

use and includes an acknowledgment of the title and authorship of

the work;

(g) the broadcasting of a work if the broadcast is approved by the

broadcasting authority as an educational broadcast;

(h) any use of a work in an approved educational institution for the

educational purposes of that institution, subject to the condition

577

C.R.A.N. Second Schedule.

143

that if a reproduction is made for any such purpose it shall be

destroyed before the end of the prescribed period, or if there is no

prescribed period, before the end of the period of twelve months

after it was made;

(i) subject to the Third Schedule to this Act, the making of a second

recording of a literary or musical work, and the reproduction of

such a sound recording by the maker or under license from him,

where the copies thereof are intended for retail sale in Nigeria and

the work has already been previously recorded under license from

the owner of the relevant part of the Copyright whether in Nigeria

or abroad, subject to such conditions and to the payment of such

compensation as may be prescribed;

(j) the reading or recitation in public or in a broadcast by any person

of any reasonable extract from a published literary work if

accompanied by a sufficient acknowledgment:

Provided that such reading or recitation is not for commercial

purpose;

(k) any use made of a work or under the direction or control of the

Government, or by such public libraries, non-commercial

documentation centres and scientific or other institutions as may

be prescribed, where the use is in the public interest, no revenue is

derived therefrom and no admission fee is charged for the

communication, if any, to the public of the work so used;

(l) the reproduction of a work by or under the direction or control of a

broadcasting authority where the reproduction or any copies

thereof are intended exclusively for a lawful broadcast and are

destroyed before the end of the period of six months immediately

following the making of the reproduction or such longer period as

may be agreed between the broadcasting authority and the owner

of the relevant part of the Copyright in the work, so however that

any reproduction of a work made under this paragraph-

(i) may if it is of an exceptional documentary character be preserved

in the archive of the broadcasting authority (which shall for the

purpose of this paragraph be deemed to be part of the National

Archives) established under the Public Archives Act;

(ii) subject to this Act, shall not be used for broadcasting or for any

other purpose without the consent of the owner of the relevant part

of the Copyright in the work;

(iii) the broadcasting of a work already lawfully made accessible to the

public and subject (without prejudice to the other provisions of

this Schedule) to the condition that the owner of the broadcasting

144

right in the work shall receive a fair compensation determined, in

the absence of agreement, by the Court;

(m) news of the day publicly broadcast or publicly communicated by

any other means;

(n) the communication to the public of a work, in a place where no

admission fee is charged in respect of the communication, by any

club whose aim is not profit making;

(o) any use made of a work for the purpose of judicial proceeding or

of any report of any such proceeding;

(p) the making of not more than three copies of a book (including a

pamphlet, sheet music, map, chart or plan) by or under the

direction of the person in charge of a public library for the use of

the library if such a book is not available for sale in Nigeria;

(q) the reproduction for the purpose of research or private study of an

unpublished literary or musical work kept in a library, museum or

other institutions to which the public has access;

(r) reproduction of published work in Braille for the exclusive use of

the blind and sound recordings made by institutions or other

establishment approved by the Government for the promotion of

the welfare of other disabled persons for the exclusive use of such

blind or disabled persons.

These exceptions are known as fair use provisions. These exceptions shall be conveniently

broken down and discussed below.

4.2 Fair Dealings

Fair dealing, most often referred to as „fair use‟ provisions have been described variously as

perhaps the most significant, and the most venerable limitation on the Copyright holders

prerogatives.

578

This may be as a result of the potentially wide application of this exception

and its high dependence on the opinion of the judge. Fair use is a codification of a long

standing common law principle permitting the „fair use‟ of a work either for purposes of

illustration, review or criticism, purely on the understanding that the portion taken would not

unreasonably prejudice the interest of the Copyright owner.

579

In developing this particular

exception, the Courts permit unauthorized but excusable uses which they considered to be in

578

A Latman et al, Copyright in the Nineties (3

rd

edn, Virginia: Charlottesville Michie Co., 1989) p.628.

579

Asein, Nigerian Copyright Law & Practice (2

nd

edn, Abuja: Books and Gravel Ltd. 2012) p.250.

145

the interest of the society at large. The fair dealing exception applies to all works protected

under the Nigerian Act.

580

The determination of whether the act complained of was done by

way of fair dealing has to be in the context of at least one of the four activities specifically

mentioned in the Act, ie, (i) research, (ii) private use, (iii) criticism or review, and (iv) the

reporting of current events.

581

It must be pointed out that the term „fair dealing‟ has no clear definition or any consensus on

the rules to be adopted in determining fair dealings under the Copyright Act of Nigeria. This

is worsened by the fact that the defence of fair dealings has rarely been raised in the Nigeria

Courts. The only known Nigerian case where it was raised is the case of Obe v Grapevine

Communications Ltd.

582

The defendant in this case had published one of the pictures from the

plaintiff‟s photo documentary of the Nigerian Civil War. In raising the defence of fair

dealings, the defendant argued that the photographs were used „to depict a story of a

historical matter of importance and of high public interest‟ and should be exempted from

Copyright control as fair dealings under the 1970 Act of Nigeria which has similar provision

as the current Act. No further elaboration was offered to justify the claim but the defendant

drew the attention of the Court to the fact that sufficient acknowledgment was included

describing the work as; „the Biafra photos, Courtesy Daily Times of Nigeria‟. In response to

this defence, the Court merely considered the text of the acknowledgment and came to the

conclusion that it fell short of what was required. The Court went ahead to hold that since the

photographs were authored by the plaintiff and not Daily Times, the professional Courtesy

should have been given to the former. The Court also made an issue that the title of the work

was not acknowledged.

583

580

C.R.A.N. Sections 6, 7 and 8.

581

C.R.A.N. Second Schedule.

582

(2003-2007) 5 I.P.L.R. p.354.

583

Ibid.

146

It is submitted with due respect that this case should not be regarded as an authority in

relation to the establishment of the defence of fair dealings. This is because the Court ought

to have considered the fundamental issue in this matter which is „whether the defendant‟s use

of the work qualified as fair dealings in the first place‟. The Court derailed into considering

the question of adequate acknowledgment which is a secondary issue. It is suggested that a

Nigerian Courts should rely on the decisions of the much experienced English Courts in

interpreting and in deciding cases of fair dealings.

In examining the concept of fair dealings, lord Denning rightly observed that it is impossible

to define in precise terms what would constitute „fair dealing‟ so that the facts of each case

would have to be approached separately and with caution.

584

He went on to suggest a general

approach in cases of fair dealings for purposes of criticism or review thus:

585

you must consider first the number and extent or the quotations

and extracts. Are they altogether too many or too long to be

fair? Then, you must consider the use made of them. If they are

used as a basis for comments, criticism or review, that may be

fair dealing. If they are used to convey same information as the

author, for rival purpose, that may be unfair. Next, you must

consider the proportions. To make long extracts and attach

short comments may be unfair. Other considerations may come

to mind also, but, after all is set and done, it may be a matter of

impression.

Suffice it to say that one cannot lay down any hard and fast rule definition of what is fair

dealing, for it is a matter of impression, degree and impression. However, in the case of

Ashdown v Telegraph Group Ltd.,

586

the Court while refusing the plea of fair dealings on

grounds that the use complained of was neither for the purpose of criticism and review, nor

the reporting of „current events‟ endorsed the three factors to be considered in determining if

there was indeed a fair dealing, thus:

584

Hubbard v Vosper [1972] 2 Q.B. p.84.

585

Ibid.

586

[2002] Ch. p.149.

147

(i) whether the alleged fair dealing is in commercial competition with

the owner‟s exploitation of the work;

(ii) whether the work has already been published or otherwise

exposed to the public; and

(iii) the amount and importance of the work which has been taken.

Another way of determining whether a dealing is fair is by asking whether the defendant‟s

work would be seen by the purchasers as a substitute for the plaintiff‟s work? If the answer is

in the affirmative, it will defeat a plea of fair dealing. In Bradbury v Hotten, the Court rightly

held that although a defendant was free to use materials from another‟s work and even copy

from it, he was not permitted to do so if his use of the material taken was for the same

purpose as that for which the Copyright owner intended to use it.

587

However, if the activity

of the defendant has minimal commercial impact, then the plea of fair dealing stands a better

chance of succeeding.

In determining whether a plea of fair dealing will avail the defendant, there is need to

determine the amount that had been taken from the work and the importance of the amount so

taken.

588

It is not enough to establish that the amount taken from the work is substantial alone

in order to defeat a plea of fair dealings. It may still be considered to be substantial if the

amount of the work taken represents the most important portion of the work protected by

Copyright.

589

Again, it is necessary that every action taken by the defendant who relies on a

defence or plea of fair dealings must have been done within the ambit of the law regarding

the permitted use to which the work is put. In Beloff v Pressdram Ltd.,

590

the Court stated that

apart from the requirement that the use to which a work is put by the defendant must

constitute fair dealing, it must also be for the purpose of research, private use, criticism,

review, or for reporting of current events.

A plea of fair dealing must therefore pertain to one

or more of the approved purposes.

587

(1872) L.R. 8 Ex. p.1.

588

See the dictum of Lord Denning in Hubberd v Vosper Supra. p.84.

589

J Asein, Nigerian Copyright Law & Practice Op. Cit. p.253.

590

[1973] 1 All ER. p.262.

148

It is submitted that in cases involving the permitted use in relation to fair dealings, Courts

should embrace a very strict interpretation of the provisions relating thereto. This is because

it is an international norm that exceptions should apply in special cases which do not conflict

with a normal exploitation of the work and which do not unreasonably prejudice the

legitimate interests of the right holders. This falls in tandem with the contemplation of the

TRIPS Agreement to which Nigeria is a party. The Agreement provides that member states

shall confine limitations or exceptions to exclusive rights to certain special cases which do no

conflict with a normal exploitation of the work and do not unreasonably prejudice the

legitimate interests of the right holder.

591

The Court has lent credence to this provision when

it held in the case of Associated Newspapers Group Plc. v News Group Newspapers Ltd.,

592

that the defence of fair dealing for the reporting of current events would not avail a defendant

where the event in question is purely historical.

4.2.1 Criticism or Review

The exception to the use of copyrightable works allowed under this sub heading is designed

to protect critics and reviewers who use the work in good faith to illustrate their views or

criticisms. This is because the objective of a party using a Copyright work is of prime

importance and where it is shown that it is for purposes of criticism or review, then this

would touch the more fundamental constitutional guarantee of free speech.

593

For example, in

a case where the defendant claims that its objective of copying a work without authorization

was essentially to provide a listening service, the Court rejected the claim by the defendant

that it was to illustrate review or comment.

594

This clearly shows that it is not every claim of

review or criticism that will be upheld as lawful enough to authorize copying of a work

without the license and permission of the maker. In the case of Banier v News Group

591

Article 13 of TRIPS Agreement, 1995.

592

[1986] R.P.C. p.515.

593

J Asein, Nigerian Copyright Law & Practice Op. Cit. p. 256.

594

Independent Television Publications Ltd. v Time Out Ltd. [1984] F.S.R. p.64.

149

Newspapers Ltd.,

595

the plaintiff took a photograph which was published in a Newspaper. The

defendant made efforts to obtain a license for the use of the photograph but was unable to do

so before its publication deadline. It went ahead and published the photograph without

permission. Plaintiff brought an action for infringement of the Copyright in the work,

whereupon the defendant argued among other things that the publication of the photograph

and the accompanying article amounted to fair dealings for the purpose of criticism or review

and therefore excusable. In rejecting this claim, the Court held that it was totally unreal to

suggest that the objective of the publication of the photograph was to illustrate any review or

criticism of the Copyright work. In Associated Newspapers Group Plc. v News Group

Newspapers Ltd.,

596

the Court took time to consider the motive with which the material in

question was copied. In the instant case, the plaintiff had obtained the exclusive rights in an

exchange of letters between the Duke and Duchess of Windsor and printed a series of these in

Newspaper. The defendant printed one of the letters in its own newspaper without any

authorization. The defendant claimed in its defence that the publication was fair dealing for

the purpose of criticism, review and reporting of current events. The Court rightly held that

the motive behind the defendant‟s publication was to attract readers and that the

correspondence in question was only presented to the public without any criticism or review;

that the defendant‟s publication was not for reporting current events as it was not the

publication of the letters that represented the current event but the death of the Duchess. The

Court has held that in many cases, the object of the criticism or review is also important.

597

The facts of this case is that the plaintiff who was the leader of a major political party had, in

strict confidence, shown some materials including minutes of a particular important political

meeting which were from entries in his diaries to representatives of the press and publishing

houses. The defendant‟s newspaper published articles about the minutes, quoting verbatim

595

[1997] F.S.R. p.812.

596

[1986] R.P.C. p.515.

597

Ashdown v Telegraph Group Ltd., supra. p.251.

150

from a substantial part of it. The plaintiff sued the defendant for breach of confidence and for

Copyright infringement. The Court held that the copying of the plaintiff‟s exact words did not

come within the fair dealing exceptions since they were not copied to criticize or review the

confidential minutes as a work, but merely to criticize or review the actions described in it.

With respect to unpublished works, it was held in British Oxygen Co. Ltd. v Liquid Air Ltd.

598

that any criticism of an unpublished work without the consent of the author would not be fair

dealing.

With greatest respect, this view is too narrow. Lord Denning also criticized the

narrow view of the Court as having gone too far.

599

He rightly expressed the opinion that it

would be fair dealing to publicly criticize a literary work which although not published to the

world at large, had been circulated to a wide circle. The work which was the subject matter of

this case was a letter written by manufacturers to a customer offering goods at a lower price

on certain conditions. The letter was published by a rival manufacturer, together with a

covering letter of criticism. The Court was of the view that the word „criticism‟ meant a

criticism of a work as such and that it would be manifestly unfair that an unpublished literary

work should without the consent of the author, be the subject of public criticism or review.

4.2.2 Reporting of Current Event

Copying of a Copyright work without due authorization may be ordinarily allowed in the

course of reporting current events. In British Broadcasting Corporation v British Satellite

Broadcasting Ltd.,

600

the Court considered the scope of this limitation under the current

English Copyright Act and concluded that the use of extracts from broadcasts of football

matches in a sports news programme came within the fair dealing provision as use for the

purpose of reporting current events.

The Court was of the opinion that there was no

justification for limiting the defence of fair dealing under the section to the reporting of

598

[1925] Ch. p.383.

599

Hubabard v Vosper Op. Cit. p.84.

600

[1992] Ch. p.141.

151

current events in general news programmes only. The defendant‟s programmes were

considered to be genuine news reports, albeit confined to News of a sporting character, and at

the time the excerpts were broadcast, the matches were current events for purposes of the

Act. It was further held that the use of the material was short, pertinent to the news reporting

character of the programme, and accompanied by an attribution to the owners.

601

In PCR Ltd

v Dow Jones Jelerate Ltd.,

602

the plaintiff‟s report in the defendant‟s news services was

challenged as an infringement of the Copyright of the plaintiff. The Court held that the

defendant‟s articles were written for the purpose of reporting current events.

603

However, in

Hyde Park Residence Ltd. v Yelland,

604

the plaintiff‟s company was in charge of security at a

Villa which was visited by the famous lady Diana, Princess of Wales and Dodi fayed the day

before their deaths in a car accident.

The security cameras had recorded their arrival and

departure from the Villa. One of the plaintiff‟s employees took a set of the unauthorized

prints which were handed over to a newspaper in return for payment. Some of the

photographs were published with an article under the headline: „Video that shames [F‟s

father]‟. The plaintiff sued the newspaper publishers, printers, as well as the employee in

question. The defendants pleaded fair dealing for the purpose of reporting current events and

that the publication was in public interest since the stills refuted alleged lies told by Fayed‟s

father and earlier published in another newspaper. In denying the defence of fair dealing, the

English Court of Appeal held that fairness had to be judged by the objective standard of

whether a fair minded and honest person would have dealt with the Copyright work, in the

manner that the infringer did for the purpose of reporting the relevant current events. The

Court went ahead and listed some of the issues that should weigh in the mind of a judge thus:

a. the motives of the alleged infringer;

b. the extent and purpose of the use;

601

Ibid.

602

[1998] F.S.R. p.170.

603

Ibid.

604

[2001] Ch. p.143.

152

c. whether that extent was necessary for the purpose of

reporting the current events in question; and

d. if the work had not been published or circulated to the

public.

It is submitted that this judicial precedence is a welcomed development in relation to the

subject matter at hand. It is suggested that it should be adopted by Nigerian Courts when

faced with similar cases.

4.2.3 Acknowledgement

The Nigerian Copyright Act expressly provides that:

605

the right conferred in respect of Section 6 of the Act does not include the right to control-

the doing of any of the acts mentioned in the said section 6 by way

of fair dealing for purposes of research, private use, criticism or

review, or the reporting of current events, subject to the condition

that if the use is public, it shall be accompanied by an

acknowledgment of the title of the work and its authorship except

where the work is incidentally included in a broadcast.

Thus, where a work is copied without acknowledging the title of the work and its authorship,

it will not amount to a violation of the author‟s Copyright so long as the work will be used

privately and outside public domain. But where the use sought to be excused is in public,

there is a condition precedent that such work must be accompanied by an acknowledgment of

both the title of the work and its authorship.

606

It is unclear whether this condition is a

mandatory requirement for the enjoyment of the exception in every case of public usage.

However, to believe so would be unduly burdensome and may occasion hardship in

infringement proceedings. It is submitted that since there is a dearth of judicial precedent in

this regard in Nigeria, Nigeria Courts and indeed other Courts of the other two jurisdictions

under consideration should align themselves with the current trend in England where the

Courts are of the view that the omission of the author‟s name does not on itself, defeat a plea

605

C.R.A.N. Second Schedule.

606

Johnstone v Bernerd Jones Publications Ltd. [1938] Ch. pp.599- 606.

153

of fair dealing if part of the work is reproduced and criticisms are offered upon that part; and

that it is not necessary in order to bring the case within the proviso, that the name of the

author should be referred to.

607

The English Court of Appeal has also held that identification

did not mean there had to be a precisely or virtually, contemporaneous act of identification.

608

The Court noted that in a particular instance where the pictures in question were part of a

broadcast, it was sufficient that identification had been provided which was capable of

operating in relation to a later appearance of the Copyright material. It then went ahead to

hold that the identification of the author by the voice over while the pictures were on the

screen was sufficient acknowledgement.

4.3 Parody, Pastiche and Caricature

Fair dealing with a work for the purpose of caricature, parody or pastiche does not infringe

Copyright in the work.

609

A parody is a comic imitation of a speech, writing or music that

imitates the style of an author, composer, etc. in an amusing and often exaggerated way.

610

A

caricature is a picture, description or imitation of somebody or something that exaggerates

certain characters in order to amuse or ridicule.

611

A pastiche is a literary, musical or artistic

work in the style of another author, composer, etc.

612

These exceptions apply to literary

works, musical works, artistic works and cinematograph films. They do not apply to sound

recordings and broadcasts.

613

The general justification for the exclusion of these categories of

dealings from Copyright infringement is that the light-hearted use of a work is not presented

to the audience as a totally new original but as deriving from another work which is often

607

Fraser-Woodward Ltd. v. B.B.C. [2005] F.S.R. p.36.

608

Ibid.

609

C.D.P.A. Section Ibid. 30A (i); C.R.AN. Paragraph (b) to the Second Schedule.

610

A.S. Hornby, Oxford Advanced Learners Dictionary of Current English (8

th

ed. Oxford: Oxford University

Press) 2010, p.11068.

611

Ibid. p.213.

612

Ibid. p.1074.

613

J Asein, Nigerian Copyright Law & Practice Op. Cit. p. 263.

154

identified or well known to the audience of the parody or caricature.

614

Secondly, there is

very slim chance that the light-hearted work would compete in the market with the work on

which it is based.

615

Both works would have widely different stylistic appeals.

616

It is not surprising that in balancing the satirical value of the light-hearted work against the

Copyright interest of the owner of the original work, the Court would be mindful of any

threat that strict enforcement of Copyright claims may pose to the art of creation.

617

Although

the Court has held in Joy Music Ltd v Sunday Pictorial Newspapers (1920 ) Ltd.

618

that

Copyright was not infringed where a musical work was copied with intent to satiarise,

619

the

Court may disallow a parody, pastiche or caricature where the defendant engages in complete

or almost verbatim copying, It has also been held to be infringement of Copyright where the

defendant has borrowed more than is necessary to conjure the object of a parody.

620

Similarly, the Court has disallowed this exception where the defendant has the intent and

effect of fulfilling the demand for the original work.

621

It is noteworthy that the determination of what constitutes excessive copying of works under

this exception is not stated by the Nigerian Act. However, in determining whether a parody of

a literary work constitutes an infringement of the Copyright in the original work, the Court

will consider whether the writer had bestowed such mental labour upon the material he had

taken and had subjected it to such revision and alterations so as to produce an original work;

and whether the parody made use of a substantial part of the expression of the original

work.

622

In Joy Music Ltd v Sunday Pictorial Newspapers (1920) Ltd.,

623

a special newspaper

614

Ibid.

615

Ibid. p.264.

616

Ibid.

617

Ibid.

618

(1960) Q.B. p.6.

619

Benny v Loew’s Inc. 356 U.S. 43 (1958).

620

Walt Disney Productions v Air Pirates 581 F. 2d p.751 (9

th

Cir. 1978).

621

Berlin v E.C. Publications Inc., 379 U.S. p.82 2 (1964).

622

Williamson Music Ltd. v The Pearson Partnership Ltd. [1987] F.S.R. p.97.

623

Supra . p.6.

155

featured article contained a parody of a popular song titled „Rock-a-Billy‟.

The Plaintiff‟s

version had „Rock-a-Billy, Rock-a-Billy, Rock‟ while, the parody was „Rock-a-Philip, Rock-

a-Philip, Rock-a-Philip, Rock!‟ repeated the same way as the original chorus. The parody was

accompanied by an acknowledgement of the plaintiff as the owner of the Copyright. The

Court held that although the parody had its origin in the song „Rock-a-Billy‟, it had been

produced by sufficient independent new work to be in itself not a reproduction of the words

of the original song but an original work that derived therefrom. In the United States case of

Fisher v Dees,

624

the plaintiff‟s musical work was parodied by the defendant who copied the

first six of the song‟s thirty-eight bars which was considered to be the main theme of the

music.

The Court rightly agreed with the defence that the defendant‟s action was excusable

under the United States Copyright Act as fair use for the purpose of parody. Contrary to the

plaintiff‟s argument that the parody was not targeted at their work and therefore, not

excusable, the Court found that the defendant‟s version was intended to poke fun at the

plaintiffs‟ and not merely a vehicle for achieving a comedic objective related to the song. The

Court noted that parodists will seldom get permission from the owners of the works to be

parodied, hence, the defence exists to make possible a use that generally cannot otherwise be

bought.

625

It went further to admit that even a destructive parody may still play an important

role in social and literary criticism and so merit protection.

626

In Williamson Music Ltd. v The Pearson Partnership Ltd.,

627

the plaintiff‟s complaint was

against the use by the defendant of the words and music of the plaintiff claiming that they

infringed the Copyright in the song „There is nothing like a Dame‟. The defendant admitted

that the lyrics and music had been created as parodies of the song and denied Copyright

infringement. While granting the interlocutory relief sought by the plaintiff, the Court held

624

P.794 F.2d (9

th

Cir. 1986).

625

Ibid.

626

Ibid.

627

[1987] F.R.S. p.525.

156

that the test in assessing whether a parody amounted to an infringement was whether it made

use of a substantial part of the expression of the original work. Applying this test, the Court

held that there was a crucial question pertaining to the lyrics but that this could not be said

about the musical Copyright.

4.4 Inclusion in Films or Broadcasts of Works Viewable by the Public

It is noted that the Nigerian Act exempts the inclusion in a film or broadcast of a work that is

viewable by the public from Copyright control.

628

This exception strictly applies to inclusions

in films or broadcast only. It does not apply to reproductions or distributions of copies; the

latter being protected in a different section of the Act.

629

This exemption may be justified on

the ground that such artistic works that are already in public view should be treated as

forming part of the scenery or background and it would be difficult and actually

impracticable to exclude them in the course of making the film or broadcast. It may be

suggested that the use of the phrase „situated‟ envisages some fixed presence. However, this

does not in any way mean, that such work must be fixed in a particular place either

temporality or permanently.

4.5 Incidental Inclusion of an Artistic Work in a Film or Broadcast

The Nigerian Act legalizes the incidental inclusion of an artistic work in a film or

broadcast.

630

This exception closely resembles the exception immediately discussed above.

631

The only striking difference is that the defendant in the instant exception must show in his

defence that the inclusion of the artistic work was incidental and does not from the primary

object of the film or broadcast. It is not a requirement under this paragraph that such an

artistic work be situated either temporarily or permanently in a public place. In IPC

628

C.R.A.N. Paragraph (c) of the Second Schedule.

629

Ibid. Paragraph (d).

630

Ibid. Paragraph (e).

631

Ibid. Paragraph (d).

157

Magazines Ltd. v MGN Ltd.,

632

the defendant who is the publisher of a Sunday Newspaper

which included a magazine supplement had placed a television advertisement for the

supplement. The television broadcast featured an issue of the plaintiff‟s magazine with the

price tag 57p showed in a manner that compared it with the defendant‟s own supplement

which was available free with its newspaper. A black band had been superimposed across the

middle of the cover of the plaintiff‟s magazine, with the price printed on it; while the

defendant‟s was shown as free. The plaintiff sued for the infringement of its artistic

Copyright in the three elements of its cover; the logo or masthead, the layout and the

photographs. The defendant contended inta alia, that the inclusion of the plaintiff‟s magazine

was merely „Incidental‟ to the broadcast within the meaning of the current English Act,

which is equivalent to the paragraph of the Nigerian Act under discussion.

633

On this very

issue, the Court stated that the question to be answered in considering this defence was

whether the inclusion in dispute was „incidental‟ in the sense of being casual, inessential,

subordinate or merely background. The Court rightly rejected the defence of incidental

inclusion and held that the inclusion of the cover of the plaintiff‟s magazine in the instant

case was an essential and important features of the advertisement without which its impact

would have been lost. However, in Fraser Woodward Ltd.v BBC,

634

the defendant‟s

broadcast of a programme showing images of newspaper pages containing the plaintiff‟s

celebrity photograph was held not to be incidental inclusion since the juxtaposition of the

photograph in question had been deliberate and was part of the criticism and review carried

out in the programme.

It was also held that there was no infringement of the Copyright in the

work of the plaintiff as the use complained of otherwise qualified as fair dealing for purposes

of criticism and review. It is submitted that these decisions are correct precedents that should

be resorted to when dealing with Copyright infringement cases in relation to this defence.

632

[1998] F.S.R. p.431.

633

C.D.P.A. Section 31.

634

Supra. p.36.

158

4.6 Use of Work for Educational Purposes

The Nigerian Act contains special exceptions for certain uses of works for educational and

instructional in purposes. These exceptions are put in place to ensure the dissemination of

information to the benefit of the public. This confirms the fact the Copyright is not

monopolistic in nature. The law thus excuses the collection of short excerpts of works, use of

work for approved educational broadcasts, and the use of work in Educational Institutions.

These exceptions shall be treated hereunder.

4.6.1 Collection of Short Excerpts of Works

A right owner in a literary, artistic or cinematograph film is exempted from controlling the

inclusion of not more than two excerpts from his work, in a collection of literary or musical

work provided that the aforesaid collection bears a statement that it is designed for

educational use, coupled with an acknowledgement of the title and authorship of the work.

635

It should also be noted that while the Nigerian Act requires for the proper acknowledgement

of the authorship and a statement that the work created is for educational use, the English Act

requires that such work must be for educational use and must be for a non-commercial

purposes.

4.6.2 Use of Work in Educational Institutions

The Nigerian Act exempts the use made of a work in an approved Educational Institution for

educational purposes of that institution, subject to the condition that if a reproduction is made

for any such purpose, it shall be destroyed before the end of the prescribed period, or if there

is no prescribed period, before the end of the period of twelve months after it was made.

636

There is nothing in the Acts that suggests that the approved use must be by the Institution

itself. It is also apparent that this exception applies to all categories of works. It may well be

that the provision on the destruction of the work within twelve months made by the Nigerian

635

C.R.A.N. Paragraph (f) of the Second Schedule.

636

Ibid. Paragraph (h) of the Second Schedule.

159

Act was included by the drafters of the Act because the Act does not require the inclusion of

any form of acknowledgment as expressly required under the English Act.

637

Apart from the

fact that such destruction may be cumbersome and difficult to enforce, it may work hardship

in enforcement cases. Moreover, the Act does not set up or mandate any institution that will

monitor such destruction. It is therefore suggested that the Nigerian Act be amended to

eliminate the process of destruction of the aforementioned work after twelve months of the

making of same.

The Act does not make mention of Educational Institutions without enumerating or

prescribing these Institutions contemplated by them. It does not also stipulate who approves

such contemplated Institutions. It is submitted that the Educational Establishments

contemplated must be approved by the appropriate Authorities empowered by Law to

approve Educational Institutions. These authorities may include National Universities

Commission- for University, Board of Technical Education- for Polytechnics, the National

Commission for Colleges of Educations- for Colleges of Education, Primary and Secondary

Education Boards- for Primary and Secondary Schools respectively. It is therefore suggested

that in order to eliminate any confusion that may arise from the abovementioned omission,

the Nigerian Act should be urgently amended to name the Educational Institutions so

contemplated.

4.6.3 Approved Educational Broadcast

The Nigerian Copyright Act allows the broadcast of a work if the broadcast is approved by

the Broadcasting Authority as an educational broadcast.

638

Under the first indigenous

Copyright Act of Nigerian, the phrase „Broadcasting Authority‟ had a wider meaning as it

637

C.D.P.A. Section 33 (1) (b) .

638

C.R.A N. Paragraph (g) of the Second Schedule.

160

was defined to include „a broadcasting contractor operating in Nigeria‟;

639

although the Act

did not state who broadcasting contractor is. It is submitted that the phrase „Broadcasting

Authority‟ in the present Act should be read as synonymous with the „Broadcasting

Organization‟ under the former Act. This is because the phrase is used in the Act to refer to

the entity that undertakes the actual broadcast. It is further submitted that the requirement of

the express approval by a broadcasting authority be thrown to the dust bin because such

requirement came into existence at a time when the business of broadcasting in Nigeria was

undertaken by the Government as a social service. For quit sometime now, the Broadcasting

Industry has been deregulated and this led to the proliferation of private commercial

broadcasting stations. The requirement of such approval may work hardship and will amount

to a clog in wheel of creativity.

4. 7 Use for Literary Enjoyment and Documentation

The exceptions under this heading are obviously aimed at the normal non-prejudicial

enjoyment of Copyright works by members of the society.

640

These exceptions include

reading or recitation of reasonable extracts from a literary work, use by Government public

Libraries and Non-Commercial Documentation Centres, reproduction of archival materials,

copying by libraries and reproduction of unpublished works for purposes of research or

private study, as well as the reproduction of published works on Braille for the use of the

blind. These forms of exception will be considered below.

4.7.1 Public Reading or Recitation of Work

The Nigerian Act permits the reading or recitation in public or in a broadcast by any person

of any reasonable extract from a published literary work if it accompanied by sufficient

acknowledgement, provided that such reading or recitation is not for commercial purpose.

641

639

Copyright Act of Nigeria, 1970, section 19 (1).

640

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 270.

641

C.R.A.N. Paragraph (J) of the Second Schedule.

161

This exception applies only to literary works which have been legitimately published.

However, the Act does not define the degree of extract that is reasonable. In the absence of

this, it is suggested that the degree of extract that is reasonable depends on the circumstances

of each case. A Court faced with such question would take into consideration the quality and

quantity of the extract made. In the same vein, the sufficiency of the acknowledgement

required by the Act would also depend on the peculiar circumstance of each case.

4.7.2 Use by Government Public Libraries and Non-Documentation Centres.

The Nigerian Act exempts any use made of a work by or under the direction or control of the

Government or by such Public Libraries, Non Commercial Documentation Centers and

Scientific or other institutions as may be prescribed, where the use is in the public interest; no

revenue is derived therefrom and no admission fee is charged for the communication, if any,

to the public of the work so used.

642

It is noteworthy that since the promulgation of this Act,

no Public Libraries Documentation Centers or any other institutions of such nature have so

far been prescribed as required under this paragraph. This obviously renders this provision

dormant and useless. In order to make such prescription feasible and real, it is therefore

suggested that the Act be amendment to name the authority contemplated to prescribe such

bodies.

4.7.3 Archival use/ Library Copying

The Nigerian Act exempts from Copyright control the making or supplying of a reproduction

of a copyrighted work or reproduction of any such work which is in the National Archives or

the storage or custody of which provision is made by Law pursuant to this Act or Law.

643

Obviously, this exception is limited to the making or supply or reproductions of such works

contemplated pursuant to the relevant Statutes. Therefore, the thing done must be in the

course of statutory function and the exception does not apply to any other type of

642

Ibid. Paragraph (k) of the Second Schedule.

643

Ibid. Section 15 (2).

162

infringement outside making reproductions. Asein rightly suggested that since „supplying‟ as

used by the Act, is not one of the rights conferred by Copyright; it is most likely that the

Court will interpret this to mean „publishing‟ or „distribution‟.

644

The Nigerian Act also allows the making of not more than three copies of a book including as

pamphlet, sheet music, map, chart or plan, by or under the direction of the person in charge of

Public Library for the use of the Library, if such book is not available for sale in Nigeria.

645

It can be said that this exception is put in place to safeguard public interest by making

available copies of works unavailable by the reproduction of not more than three copies of

such works by or under the direction of the person in charge of a Public Library for the use of

the library and not for commercial purposes. It is submitted that the non inclusion of Private

Libraries in the category of libraries contemplated by the Act will constitute a clog on access

to information, especially now that private schools have taken over the Educational Sector in

Nigeria. It is therefore suggested that the Act be urgently amended to include Private

Libraries in the list of libraries contemplated.

4.7.4 Reproduction of Unpublished Works

The Nigerian Act permits the reproduction for the purpose of research or private study of an

unpublished literary or musical work kept in a library, museum or other institutions to which

the public has access.

646

This exception is limited to those unpublished works that are kept in

library, museum or other such institutions, for purpose of research or private use. It may be

argued that the phrase „private study‟ as used in the Act has restrictive meaning and is limited

to use by the student. It does not in any way include the circulation of the same materials to

other students. However, this would be a question of fact to be determined by the Court since

the Act left everyone in doubt as to the exact meaning of the phrase.

644

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 271.

645

C.R.A.N. Paragraph (q) of the Second Schedule.

646

Ibid. Paragraph (r) of the Second Schedule.

163

4.7.5 Reproduction on Braille

The Nigerian Act allows the reproduction of published works in Braille for the exclusive use

of the blind and sound recordings made by the institutions or other establishments approved

by the Government for the promotion of the welfare of other disabled persons for the

exclusive use of such blind persons.

647

This exception obviously relates to published works in

two categories, that is, the reproduction in Braille for the blind; and reproduction of sound

recordings for other disabled persons. It is submitted that there ought to have been some

nexus between the particular disability and the use of the sound recording as a means of

gaining access to such works. This is because a handicap in the limb for example, would not

justify the use of a sound recording of a literary work. Moreover, the Act does not consider

whether these works are available in the market before allowing this exemption. It is

submitted that this provision may lead to confusion and conflict of interest. It is suggested

that the Act be amended to stipulate the disabled persons contemplated in relation to specific

works, and to state that this exemption is only allowed if the original work is out of stock.

4.8 News and Public Interest Broadcasts

The exceptions contemplated under this sub-heading concern the broadcasting of works that

have already been made available to the public, news of the day and the communication to

the public of a work in places where no admission fees are charged. These exceptions shall be

discussed hereunder.

4.8.1 Broadcasting of Works Already Lawfully Available to the Public

The Nigeria Copyright Act permits the broadcasting of a work already lawfully made

accessible to the public subject to the condition that the owner of the broadcasting right in the

work will receive a fair compensation determined in the absence of agreement, by the

647

Ibid. Paragraph (s) of the Second Schedule.

164

Court.

648

Asein stated that this exception relates to the underlying work, e.g. a film or sound

recording, that is being broadcast and not the broadcast itself.

649

This view seems to be

correct in that the exemption is more like a statutory license allowing any work that has

already been made lawfully accessible to the public to be broadcast subject to payment of

compensation.

It is arguable that if a Broadcasting Organization is alleged to have infringed Copyright in a

work by broadcasting a music or cinematograph film which has already been made lawfully

available to the public, the best the owner of the Copyright can do is to bring an action for the

payment of fair compensation and not for infringement of the Copyright in the work; since

the only condition precedent for the applicability of this exception is that the work must have

been lawfully made accessible to the public prior to such broadcasting.

It is submitted that the inability of the Nigerian Act to define both the targeted „audience‟

contemplated by the drafters of the Act, as well as what constitutes „payment‟ by such

audience gives Copyright violators a wide margin to expand their illicit trade of infringement

of Copyright. It is therefore suggested that the Act be amended to include the said definitions.

4.8.2 Reproduction by a Broadcasting Authority

The Nigerian Act permits the reproduction of a work by or under the direction or control of a

broadcasting authority where the reproduction or any copies thereof are intended exclusively

for a lawful purpose and are destroyed before the end of the period of six months

immediately following the making of the reproduction or much longer period as may be

agreed between the broadcasting authority and the owner of the relevant part of the Copyright

in the work, so however that any reproduction of a work made under this paragraph:

650

648

Ibid. Paragraph (m) of the Second Schedule.

649

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 273.

650

C.R.A.N. Paragraph (i) of the second schedule.

165

(a) may if it is of an exceptional documentary character, be preserved in

the archives of the broadcasting authority (which shall for the purpose

of this paragraph be deemed to be part of the National Archives)

established under the Public Archives Act;

(b) subject to this Act, shall not be used for broadcasting or for any other

purpose without the consent of the owner of the relevant part of the

Copyright in the work.

Though the Act does not specify what will happen if the work is not destroyed as specified in

this section, it is a welcome development that the Act prescribes that the work may, if it of

exceptional documentary character be preserved in the Archives; and that the owner of the

work may be approached to authorize that the work be kept for such longer period as may be

agreed by the parties. This Copyright friendly provision will curb the hassles that may be

encountered in creating or recreating such a nice work upon the destruction of the original

work. However, problem may arise where the destruction contemplated is not carried out;

and without the Copyright owner being aware of this development. This is worsened by the

fact that the Act does not create or mandate any institution that will supervise such

destruction. These dangers far outweigh the importance and relevance of this exemption. It is

therefore suggested that the Act be amended to mandate an institution to monitor the

aforementioned destruction.

4.8.3 News of the Day

This exemption created by the Law relates to the broadcasting of works which have already

been publicly broadcast or publicly communicated by any other means.

651

This exemption

seems to be distinct from the provision of fair dealing for the purpose of reporting current

events.

652

It seems to concern current events, which is news of the day.

651

Ibid. Paragraph (11) of the Second Schedule.

652

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 273.

166

4.8.4 Communication by Clubs Free of Charge

The Nigerian Act exempts the communication to the public of a work in a place where no

admission fee is charged in respect of the communication, by any club whose aim is not

profit making.

653

It is submitted that this exemption is Copyright friendly since its object is to

advance the dissemination of information. This may be the reason for the incorporation of

this exemption into the Nigerian Act.

4.9 Official Use /Use of Judicial Proceedings

The Nigerian Act exempts any use made of a work for the purpose of judicial proceeding or

of any report of any such proceeding.

654

Asein rightly submitted that the use in question must

be bona fide for the purpose of judicial proceedings and that it will extend to use before the

commencement of actual proceedings, eg, it is foreseen that judicial proceedings were likely

and would or might provide evidence on a point which might be in issue in such

proceedings.

655

In A v B, the applicant and respondent were married and the husband made

photocopies of the wife‟s personal diary after she informed him that she wanted a divorce.

656

Copies of the two pages were subsequently attached to an affidavit sworn to by the husband

in divorce proceedings. In his defence to a case of Copyright infringement, he pleaded that

the copies were made for the purposes of judicial proceedings. The Court noted on this point

that the defence was not limited to copies made after the issuance of the originating process.

In its view, there was a realistic prospect of establishing the defence given that copying was

done after the applicant had told the respondent that she wanted a divorce; so that it could be

foreseen that proceedings were likely, and the documents would or might provide evidence

on a point which might be in issue in such proceedings. It is however surprising that the

Nigerian Act protects only the use of works in judicial proceedings even in this computer

653

C.R.A.N. Paragraph (o) of the Second Schedule.

654

Ibid. Paragraph (p) of the Second Schedule.

655

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 275.

656

[2000] E.M.L.R. p.1007 9 Ch,D.

167

generation where access to information is of utmost importance. It is therefore suggested that

the Act be amended to include the use of works of parliamentary and executive proceedings

as works falling under this exemption.

4.10 Making of Sound Recordings against Payment of Compensation

The Nigerian Copyright Act exempts subject to the Third Schedule to the Act, the making of

a sound recording of a literary or musical work, and the reproduction of such a sound

recording by the maker or under license from him where the copies thereof are intended for

retail sale in Nigeria and the work has already been previously recorded under license from

the owner of the relevant part of the Copyright whether in Nigeria or abroad, subject to such

conditions and to the payment of such compensation as may be prescribed.

657

It is submitted that this exemption is superfluous and unnecessary in that it is made subject to

the elaborate provisions contained in the Third Schedule to the Act. Again, the exemption is

subject to conditions and payment of any prescribed compensation; though the Act does not

prescribe anybody or institution that will carry out these duties. Till date, no conditions or

scales of compensation have been prescribed under the Act in that respect. Moreso, this

exemption would have been conveniently treated under assignments and licenses. Better still,

this exemption should have been incorporated under the Third Schedule. It is therefore

suggested that the Nigerian Act be amended to expunge this exemption from the Act.

4.11 Special Exceptions in Respect of Sound Recording of Musical Works

The Third Schedule to the Nigerian Copyright Act contains elaborate provisions on special

exemptions in respect of sound recordings of musical works which by the provisions of the

Act, are to apply to musical works in addition to other exception generally available in the

657

C.R.A.N. Paragraph (i) of the Second Schedule.

168

Second Schedule. The Act provides that

Copyright in a musical work is not infringed by a

record producer who makes a recording or an adaptation of a work in Nigeria if:

658

(a) record of the work, or, as the case may be, of a similar adaption

of the work, have previously been made in or imported into

Nigeria for the purpose of retail sale and where so made or

imported by, or with the license of the owner of the Copyright in

the work;

(b) before making the recording, the record producer gave to the

owner of the Copyright the prescribed notice of his intention to

make it;

(c) the record producer intends to sell the record by retail, or to

supply it for the purpose of its being sold by retail by another

person, or intends to use it for making other records which are to

be sold or supplied; and

(d) in the case of a record which is sold by retail, the record

producer pays the owner of the Copyright in the prescribed

manner and in the prescribed time, a royalty of an amount

ascertained in accordance with the provisions of the

Schedule.

It is clear that subject to the provisions contained in this Schedule, the royalty is an amount

equal to a percentage of the ordinary retail selling price of the record calculated in the

prescribed manner.

659

Till date, no such regulations have been made. It may well mean that

the absence of the regulations is because neither the procedure for giving the required notice,

nor the royalties payable have been prescribed by the appropriate authority. It is submitted

that the absence of the aforementioned regulations may mislead people into believing that

this exemption is not applicable in Nigeria, at least for now. Therefore, it is suggested that

this dormant provision be expunged from the Act through amendment.

It should be noted that this Third Schedule to the Act generally contains very detailed

provisions in relation to the calculation of the royalties by the Commission; apportionment of

royalties in the case of use of multiple works belonging to different owners or from diverse

658

Ibid. Paragraph (1) (a) – (d) of the Third Schedule .

659

Ibid. Paragraph (2).

169

sources, as well as the making of inquiries.

660

One other important fact to note is that the

exceptions provided in the Third Schedule to the Nigerian Act do not authorize the

importation of records which could otherwise not have been lawfully imported apart from

this Schedule.

661

The Act also provides that:

662

for purposes of any provisions of this Act relating to imported articles,

where the question arises whether the making of a record outside Nigeria

would have constituted an infringement of Copyright if the record had

been made in Nigeria, that question should be determined as if paragraph

(1) of this schedule had not been enacted.

It is submitted that the exceptions in this Third Schedule would have been more conveniently

treated under licenses or at best under assignment. It is therefore suggested that the Act be

amended to expunge the Third Schedule exceptions from the Act and incorporate same under

the Forth Schedule to the Act, which deals with licenses.

4.12 Compulsory Licensing

As a way of preventing the abuse of monopoly powers granted to authors by Copyright law in

with respect to licenses, Copyright systems provide for the grant of compulsory licenses

enabling others to do certain acts and exercise certain rights ordinarily reserved for Copyright

owners. In essence, under a compulsory license, an individual or company seeking to use

another person‟s intellectual property can do so without seeking the right holder‟s consent,

and pays the right holder a set of fee for the license. Through compulsory licensing, the

Copyright system seeks to balance the interests of right owners for increased protection in

order to give the society greater access to information and knowledge materials.

663

However,

there are still instances where the law permits the grant of licenses where the owner of

660

Ibid. Paragraphs (2)-(9).

661

Ibid. Paragraph (9).

662

Ibid.

663

J Asein, Nigerian Copyright Law & Practice (supra), p.156.

170

Copyright cannot be reached or is not willing to grant a voluntary license on reasonable

grounds.

664

All thing being equal, the grant of compulsory licenses is a legislative safeguard

to check abuse of monopoly.

665

The Nigerian Act contains elaborate provisions for three broad categories of compulsory

licenses that can be granted for the translation and reproduction of certain works. It confers

the Copyright Licensing Panel with the power to grant compulsory licenses, such as the

license to produce and publish translation; license to reproduce and publish works for certain

purposes; and license for domestic broadcasting organization.

666

It must be pointed out that

the grant of these licenses are limited to purposes of teaching, research or scholarship.

According to the Nigerian Act, the phrase „the purpose of teaching, research and scholarship‟

includes: purposes of instructional activities at all levels in educational institutions; and

purposes of all types of organized educational activity.

667

Reference to research does not

include industrial research or research carried out by body corporates including bodies

corporate owned or controlled by the Government, companies; associations or bodies of

persons carrying on any business.

668

Secondly, unlike the liberal provisions of the Third

Schedule to the Nigerian Act which is not limited by the status of the record producer, the

applicant under the Fourth Schedule must be a qualified person within the meaning of the

Act. A qualified person means „either a citizen of Nigeria or an individual domiciled in

Nigerian; or a body corporate incorporated under any written law in Nigeria‟.

669

As detailed

discussion on compulsory licensing is as stated hereunder.

664

Ibid.

665

British Leyland Motor Corporation Ltd. v Armstrong Patents Ltd. (1986) A.C. p.577; Choate et. al.

Cases and Materials on Patent Law including Trade Secrets-Copyright-Trademarks,

(Minnesota, West Publishing Co. St. Paul, 1987) p.80.

666

C.R.A.N. Paragraph 1 of the Fourth Schedule.

667

Ibid.

668

Ibid.

669

Ibid.

171

4.12. 1 License to Produce and Publish Translations

According to the Nigerian Act, any qualified person many apply to the Commission for a

license to produce and publish a translation of a literary or dramatic work which has been

published in printed or analogous forms of reproduction for the purposes of teaching,

scholarship or research.

670

An application under this paragraph shall be made in such form as

may be prescribed, and shall state the proposed retail price of a copy of the translation of the

work.

671

An applicant shall along with his application; deposit with the Commission such fee

as may be prescribed.

672

The Commission may after holding such inquiry as may be

prescribed, grant to the applicant a license, not being an exclusive license, to produce and

publish a translation of the work in the language mentioned in the application on the

conditions that the applicant shall pay to the Copyright owner appropriate royalties consistent

with the standards normally operating for licenses freely negotiated between persons in

Nigeria and owners of translation rights in the country of the owner of the right of translation.

673

The license shall not extend to the export of the copies of the translation of the work

outside Nigeria, and every copy of the work shall contain a notice in the language of the

translation that the copy is available for distribution only in Nigeria.

674

However, no license

may be granted for the translation of work into any language spoken in Nigeria other than

English until after the expiration of one year from the date of first publication of the work.

675

In the case of a license for a translation of a work into English language, a license may only

be granted after a period of three years from the date of first publication.

676

The government

is expressly excluded from the prohibition against the export of copies of translations in a

language other than English, insofar as such copies are sent to citizens or association of

670

Ibid. Para 2.

671

Ibid. Para 2 (2).

672

Ibid. Para 2 (3).

673

Ibid.

674

Ibid. Para 3 (4).

675

Ibid.

676

Ibid. Paragrsph 2 (6).

172

citizens outside the country; or meant to be used for teaching, research or scholarship and not

for any commercial purpose.

677

It must be pointed out that even though the current Nigerian

Act does not expressly define the term „government‟. The term is understood to mean

„Federal Government‟.

678

Apart from the above requirements, the Nigerian Copyright Commission will not grant a

license to an applicant unless it is satisfied that:

679

(a) no translation of the work into the language in question has been

published in printed or analogous forms of reproduction, by or with

the authorization of the owner of the right of translation or that all

previous editions in that language are out of print;

(b) the applicant had requested and been denied authorization by the

owner of the Copyright to produce and publish such translation, or

that he was, after due diligence on his part, unable to find the

owner;

(c) where the applicant was unable to find the owner, that not less than

two months before the application, he had sent a copy of his request

for such authorization by registered air-mail post to the publisher

whose name appears in the work;

(d) the applicant had at the time he submitted an application informed

any national or international centre designated for this purpose by

the government of the country in which the publisher of the work to

be translated is believed to have his principal place of business;

(e) that the applicant is competent to produce and publish a correct

translation of the work and possesses the means to pay to the owner

of the Copyright the royalties due to him under the Copyright Act;

(f) a period of six months in the case of an application for a license for

a translation into English or nine months in the case of an

application for a license for translations into any other language

spoken in Nigeria other than sub-paragraph (7) (b) of this

paragraph, or where a copy of the request has been sent under

paragraph (7) (c) of the said paragraph from the date of the sending

of such copy; and the translation of the work in the language

mentioned in the application has not been published by the owner of

the Copyright in the work or any person authorized by him within

the said period of six months or nine months, as the case may be;

(g) the name of the author and the title of the particular edition of the

work proposed to be translated are printed on all the copies of the

translation;

677

Ibid. Paragraph 2 (5).

678

Copyright Act of Nigerian, 1970, Section 19 (1).

679

C.R.A.N. Paragraph 2 (7)to the Fourth Schedule.

173

(h) if the work composed mainly of illustrations, the provisions of

paragraph 3 (dealing with reproduction and publication of works)

are complied with;

(i) the author has not withdrawn from circulation copies of the work;

and

(j) an opportunity to being heard is given, wherever practicable, to the

owner of the Copyright.

4.12.2 Reproduction and Publication for Instructional Activities

Similar provisions duplicated above are also made by the Nigerian Act for the grant of

compulsory license to reproduce and publish an edition of a literacy or artistic work for the

purposes of systematic instructional activities.

680

Generally speaking, an application for

compulsory license shall be made by any qualified person where copies of such edition are

not made available in Nigeria; or such copies have not been put on sale in Nigeria for a

period of six months by the owner of the Copyright or by any person authorized by him in

that behalf to the general public; or in connection with systematic instructional activities at a

price reasonably related to that normally charged in Nigeria for comparable works.

681

The

Commission may grant an application for the production and publication of such works in

printed or analogous forms at the price at which such edition is sold or at a lower price for the

purpose of systematic instructional activities.

682

Such an application can only be made in the

case of works relating to fiction, poetry, drama, music or arts, after a period of seven years;

and in the case of natural science, physical science, mathematics or technology, after a period

of three years from the date of first publication.

683

As in the case of translations, the

Commission may, after holding due inquiry, grant the applicant a non-exclusive license to

produce and publish a reproduction of the work subject to the conditions as those stipulated

for the reproduction and publication of a translation.

684

However, no licence to reproduce and

680

Ibid. Paragraph 3.

681

Ibid.

682

Ibid.

683

Ibid. Sub paragraph (8).

684

Ibid. Paragraph 3. (4).

174

publish the translation of a work may be granted under this heading unless such translation

had previously been published by the owner of the right of translation in a language spoken in

Nigeria.

685

Moreover, license is not available for the reproduction and publication, or

translation into a language spoken in Nigeria, of any text incorporated in audio-visual

fixations prepared and published solely for the purposes of systematic instructions.

686

It must be pointed out that the conditions for the grant of a license under this sub heading are

very much similar to those discussed in the last preceding sub-paragraph. It will therefore

amount to a waste of time and space to discuss them all over again.

4.12.3 Production and Publication by Broadcasting Organization

The Nigerian Act makes provision for the grant of compulsory license for a television or

broadcasting station that apply for such, to produce and publish the translation of literary or

dramatic work which has been published in printed or analogous forms of reproduction; or

any text incorporated in audio-visual fixation prepared and published solely for the purpose

of systematic instructional activity, for broadcasting the translation for the purpose of

teaching or for the dissemination of the results of specialized technical or scientific research

to experts in any particular field.

687

It is obvious that the various circumstances under which compulsory licenses may be granted

as shown above; all tend to promote access by the public to the relevant works and,

invariably increase access to knowledge.

688

This is a step in the right direction.

685

Ibid. Paragraph 3.

686

Ibid. Paragraph 3.

687

Ibid. Paragraph 4.

688

M Ozioko, „Copyright Provisions Impacting on Access to knowledge: A Comparative Analysis‟, UNIZIK

Law Journal, Vol 7 No. 1 2010.p. 61.

175

4.13 Copyright Terms

Copyright does not rest in perpetuity but ceases to subsist in a work by effluxion of time. The

duration of Copyright depends on the type of work and whether the authorship is ascertained,

anonymous or pseudonymous. Under the Nigerian Act, the duration of Copyright granted to

works is as set out in the Nigerian Copyright Act.

689

Copyright in a literary, musical or

artistic work, excluding photographs, is from the time of creation, for the life time of the

author and Seventy year thereafter.

690

In the case of a body corporate or where the work is

made by or under the direction or control of the government, state authority or a prescribed

international body, Copyright subsists for seventy years after the end of the year in which the

work was first published.

691

Similarly, where an author of a literary, musical or artistic work

is anonymous or pseudonymous, the Copyright in such work would subsist for seventy years

calculated from the beginning of the year immediately following the year in which the work

was first published.

692

In an action for infringement under the Nigerian Act, there is a presumption of law to the

effect that if no evidence is led to the contrary, the Court will presume that the name

appearing on a work purporting to be the name of the author is the name of such author.

693

Again, the singular fact that an author is not known does not make his work

pseudonymous.

694

A work may not be considered to be pseudonymous or anonymous unless

no name appears on the work or the name on it is obviously a pseudonym.

695

Mere initials or

pen names may be treated as pseudonymous unless they are generally understood to refer to a

known author.

696

In the same vein, Copyright in cinematograph films and phonographs ceases

689

C.R.A.N. First Schedule.

690

Ibid.

691

Ibid. Paragraph (1).

692

Ibid.

693

Ibid. Section 43.

694

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.108.

695

.Ibid.

696

Ibid.

176

to subsist after the expiration of fifty years after the end of the year in which the work was

first published.

697

Furthermore, Copyright in sound recordings ceases to subsist fifty years

from the beginning of the year in which it was first made.

698

In the case of broadcasts, the

term of Copyright is fifty years after the end of the year in which the broadcast first took

place.

699

It is very clear that Copyright terms under the Nigerian Act are above those prescribed in the

International Instrument which Nigeria is a party to. For example, the Berne Convention

provides that the term of Copyright in literary and artistic works is a term of life plus fifty

years after the death of the creators.

700

The Rome Convention stipulates that the term of

Copyright in phonographs and broadcasts is twenty years from the date of production or

publication.

701

Although the Copyright terms granted by the Nigerian Act will give authors

and their heirs a fairly long period to enjoy the proceeds of their labour, these terms are anti

Copyright in that they are too long to inhibit access to works for purposes of advancement of

knowledge and information. It is therefore suggested that the Act be amended to limit the

terms to fifty years from the publication of such works.

It must be pointed out that the Act does provide for Copyright terms in relation to

unpublished works. This should not be understood to mean that unpublished works are not

neither recognized nor protected under the Act. However, in order to eliminate any

controversy associated with the aforementioned omission, it is suggested that the Act be

amended to expressly provide for Copyright terms of unpublished works.

697

C.R.A.N. Paragraph (2) of the First Schedule.

698

Ibid. Paragraph (2).

699

Ibid. Paragraph (4).

700

Article 7 of Berne Convention for the Protection of Literary and Artistic Works, 1886.

701

Article 14 of Rome Convention For the Protection of Performers, Producers of Phonograms and

Broadcasting Organizations, 1961.

177

As a general rule, upon the expiration of Copyright by effluxion of time, the work formerly

copyrighted goes into public domain. The legal effect therefore is that such work can be

copied, published, produced and reproduced by any person without much ado. The acts which

ordinarily would have amounted to infringement would not constitute violation of Copyright

enforceable by law.

702

4.14 Copyright Enforcement

Enforcement of Copyright is the act or process of compelling compliance with the Copyright

law. There is no gain saying that without enforcement, the law would have been as good as

not existing at all, and the rights so granted by the law would also be as good as not being

protected. To achieve enforcement, effective and efficient infrastructures have to be on

ground. In line with this, the Copyright Laws of the jurisdictions under consideration put in

place proper legal institutional and regulatory mechanisms and frameworks for the effective

implementation and administration of Copyright in their respective jurisdictions. For

purposes of this research work, these enforcement mechanisms shall be divided into legal and

technical enforcement, as shall be discussed hereunder.

4.14.1 Legal Enforcement

All over the world, Copyright laws attempt to institutionalize various enforcement

bodies/mechanisms to ensure a holistic enforcement of Copyright. These bodies which are

manned by human beings quite unlike what is obtained under technical enforcement, are

vested with various powers ranging from dictating the steps to be taken to implement the

Copyright Laws relating to the assertion of Copyright, to the arrest and prosecution of

Copyright violators. As a matter of fact, the efficacy of these enforcement mechanisms

cannot be overemphasized. Hence, they are provided for by the Copyright laws of the nations

of the world.

702

Atlas MFG & Ors. v Street & Smith 204 Fed. R. p.398.

178

4.14.2 Nigerian Copyright Commission

The Nigerian Act established the Nigeria Copyright Commission

which shall:

703

(a) be responsible for all matters affecting Copyright in Nigeria as

provided for in the Act;

(b) monitor and supervise Nigeria‟s position in relation to

international Conventions and advice Government thereto;

(c) advice and regulate conditions for the conclusion of bilateral and

multilateral agreements between Nigeria and any other country;

(d) enlighten and inform the public on matters relating to Copyright;

(e) maintain an effective data bank on authors and their works;

(f) be responsible for such other matters as relate to Copyright in

Nigeria as the Minister may, from time to time, direct.

The Commission also has the following responsibilities:

a. the certification of countries that are parties to treaty obligations

for the purposes of determining whether a Copyright work may

enjoy Copyright by virtue of such International Obligations;

704

b. the regulation of conditions for the exercise of the right of an

author of graphic works, three dimensional works and manuscripts

to share in the proceed of any sale of that work or manuscript by

public auction or through a dealer;

705

c. the issuance of exemption certificate for the purpose of enabling

an otherwise unapproved Collecting Society to commence action

for the infringement of Copyright or any right under the Copyright

Act;

706

d. the prescription of anti-piracy devices for use on, in or in

connection with any work in which Copyright subsists;

707

e. the authorization of the reproduction, communication to the public

and adaptations of expressions of folklore for commercial

purposes outside their traditional customary contexts;

708

703

C.R.A.N. Section 34.

704

Ibid. Section 5.

705

Ibid. Section 3

706

Ibid. Section 17.

707

Ibid. Section 21.

708

Ibid. Section 31.

179

f. the granting of compulsory licenses in accordance with the

provisions of the Fourth Schedule to the Act, as well as the

establishment and regulation of the Copyright Licensing Panel;

709

g. the appointment of Copyright Inspectors as it may deem fit;

710

h. the approval and regulation of Collecting Societies for the

purposes of the Copyright Act;

711

i. the receipt and disbursement of funds arising from the imposition

of compulsory levy on Copyright materials;

712

j. the regulation of the conditions necessary for the operation of a

business involving the production, public exhibition, hiring or

rental of any work in which Copyright subsists under the Act;

713

k. The carrying out of such directives of a general or special

character with respect to its functions as the Minister may give.

714

The Commission being a body corporate with perpetual succession, may sue or be sued in its

corporate name.

715

In spite of these express provision of the Act, there is a statutory limitation

barring any suit against the Commission, a member, or any of its staff for an act done in

pursuance or in execution of his duties under the Act or any other enactment or law; or in

respect of any alleged neglect or default in the execution of the Act or any other enactment,

unless the suit is commenced within twelve months after the act, neglect or default

complained of, or where the damage or injury continues within twelve months after the

damage or injury arose.

716

Furthermore, a pre-action notice of three months is required before

the commencement of any suit against the Commission or any member of its staff.

717

The

notice referred to shall clearly state the cause of action, the particulars of the claim, the name

and place of abode of the intending plaintiff, and the relief which he claims.

718

Moreover, no

execution, attachment, or process in the nature thereof shall be issued against the

709

Ibid. Section 37.

710

Ibid. Section 38.

711

Ibid. Section 39.

712

Ibid. Section 40.

713

Ibid. Section 45 (4).

714

Ibid. Section 50.

715

Ibid. Section 34 (2).

716

Ibid. Section 47(2).

717

Performing & Mechanical Rights Society Ltd./G.T.E. v N. C. C. & 3 Ors. 6 I.P.L.R. p.131.

718

C.R.A.N. Section 47 (3).

180

Commission.

719

This obviously confers the powers of an emperor on the Commission. It is

interesting to note that the Federal High Court of Nigeria has held that the provision of the

Nigerian Act bordering on the limitation of actions against the Commission,

720

do not apply

to the enforcement of fundamental rights; basing its reasoning on the language of the section

and the need to preserve the constitutional provision relating to rights to personal liberty.

721

However, the same Court in another case declined the plaintiff‟s invitation for it to declare

this provision a legislative misnomer, noting that the plaintiff‟s action was not for the

enforcement of fundamental rights.

722

It then held that this is not the type of case which did

not require compliance with the pre-action provision. It is equally important to note that the

three months period for pre-action notice can be abridged by the Court pursuant to its

inherent powers. In Musical Copyright Society of Nigeria Ltd/Gte. v Nigerian Copyright

Commission,

723

the Court abridged the three months period to „not less than seven days‟ on

the ground that waiting for three months before the applicant can approach the Court may

engender serious repercussion to his business. It is submitted that this decision of Court is a

commendable improvement on the Nigerian jurisprudence which must be emulated by the

jurisdictions countries under consideration.

The Nigerian Copyright Commission is supervised by a Governing Board established under

the Act and constituted as follows:

724

(a) a chairman, who shall be a person knowledgeable in Copyright matters

and who shall not be below the rank of Director, to be appointed by the

President on the recommendation of the Minister;

(b) the Director-General of the Commission, one representative of the

Federal Ministry of Justice, one representative of the Federal Ministry

of Education;

719

Ibid. Section 49.

720

Ibid. Section 47 (2)..

721

Musical Society of Nigeria Ltd/Gte v Nigerian Copyright Commission, Unreported Suit No.

FHC/L/CS/35/2008 quote by J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.355.

722

Metro-Digital Nig. Ltd. v Nigerian, Copyright Commission, Unreported Suit No. FHC/PHC/CS/225/2008

quote by J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.355.

723

Suit No. FHC/L/678/10 quoted by J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.355.

724

C.R.A.N. Ibid.Section 36 (1).

181

(c) one representative of the Nigerian Police force, not below the rank of a

Commissioner of Police, one representative of the Nigerian Customs

Service, not below the rank of a comptroller of Customs;

(d) Six other persons to be appointed by the Minister who shall represent

as far as possible the authors of literary works; artistic works, musical

work, cinematograph films, sound recordings, and broadcasts.

The representatives of the ministries shall be officers not below the rank of Director.

725

The

Board shall adopt rules governing its procedures and method of operation.

726

The Director-

General of the Commission shall be the chief executive of the Commission and shall be so

appointed by the President on the recommendation of the Minister.

727

The Director-General

shall be liable for the day-to-day administration of the Commission.

728

Thus, the Commission

is made up of government appointees who may not have the interests of right owners at heart

but are bent on protecting the interests of their godfathers. It is not in doubt that the Nigerian

Copyright Commission is better positioned to combat piracy. It has equally made impact in

the area of enforcement of Copyright by creating awareness, seminars, symposiums,

monitoring etc. However, these efforts of the Commission have proved inadequate as a result

of corruption that has eaten deep into the Commission, as well as the manner of appointment

of its staff by the Government as. It is therefore suggested that the Nigerian Act be Amended

to bring professionalism into the Commission and to eradicate the arbitrary appointment of its

staff by the government.

5 4.14.3 Copyright Inspectors

The Nigerian Copyright Commission discharges its enforcement role primarily through the

Copyrights Inspectors, which the Nigerian Act empowers it to appoint.

729

A Copyright

Inspector has the following powers:

730

725

Ibid. Subsection (2).

726

Ibid. Subsection (3).

727

Ibid. Section 37.

728

Ibid. Subsection (2).

729

Ibid. Section 38(1).

730

Ibid. Subsection (2).

182

(a) to enter, inspect and examine at any reasonable time, any building or

premises which he reasonably suspects is being used for any activity

which is an infringement of the Copyright under the Act;

(b) to arrest any person who he reasonably believes to have committed an

offence under the Act;

(c) to make such examination and inquiry as may be necessary to

ascertain whether the provisions of the Act are complied with;

(d) to require the production of the register required to be kept under

section 13 of the Act and to inspect, examine and copy it;

(e) to require any person who, he finds in such buildings or premises to

give such information as it is in his power to give in relation to any

purposes specified in the Act;

(f) to carry out such examination, test or analysis within or outside the

premises as is required to give effect to any provision of the Act and

to take instant photographs where such examination, test, analysis or

photograph is carried out within the premises and such examination,

test, analysis or photograph shall be required to be endorsed by the

occupier of the premises or his agent. A refusal by an occupier to

endorse any document containing the result of an examination, test,

analysis or photograph shall not invalidate the result or finding of the

examination, test, analysis or photograph; and

(g) to exercise such other powers as the Commission may delegate to

him to give effect to the provisions of the Act.

The Act further empowers Copyright Inspectors to prosecute, conduct or defend before a

Court any charge, information, complaint or other proceedings arising under the Act.

731

In

Nigerian Copyright Council v Musical Copyright Society of Nigeria,

732

the accused persons

brought a preliminary objection challenging the institution of the criminal proceeding against

them by a Copyright Inspector who according to the applicants, lacked the capacity to do so

in view of the provisions of the 1999 Constitution of Nigeria.

733

In dismissing the

application, the Court held that in as much as the said provision gives the Attorney-General

power to institute and take over criminal proceedings that were „instituted by any other

authority or person‟, it presupposes that any authority or person authorized by law may

institute or undertake criminal proceedings. The Court was persuaded by the decision of the

731

Ibid. Subsection (3).

732

Suit No. FHC/L/43

C

/99 quoted by J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.357.

733

Suit No. FHC/L/43

C

/99 quoted by J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.357.

183

Court of Appeal in Olusemo v Commissioner of Police

734

where it was held that the Police

had powers to institute criminal proceedings notwithstanding the powers of the Federal and

State Attorneys-General under the Constitution. This position is in line with the Supreme

Court decision in Federal Republic of Nigeria v Osabon

735

wherein the Court upheld the

power of police officers under Section 23 of the Police Act to prosecute in superior Courts so

long as they had the right of audience in such Courts, for instance, as legal practitioners by

virtue of being called to the Nigerian Bar Association.

There is no doubt that the same

principle would be applicable to Copyright Inspectors especially considering the provisions

of the current Nigerian Copyright Act.

736

The Nigerian Act also makes it an offence to obstruct a Copyright Inspector in the

performance of his duties.

737

A Copyright Inspector is conferred with all the powers, right

and privileges of a police officer as defined under the Police Act and under any other relevant

enactment pertaining to the investigation, prosecution or defence of a civil or criminal matter

under the Copyright Act.

738

It should be noted that the powers conferred on a Copyright

Inspector under the Copyright Act including the powers of investigation; arrest and

prosecution are all limited to offences arising from the Copyright Act itself. In line with this,

the Court held in Ayika v Nigerian Copyright Commission

739

that the Commission has no

power to arrest, detain or prosecute any person or persons for any offence not covered by the

Act.

It is noted that the powers conferred on Copyright Inspectors are similar to those exercised

by the police; meaning that both exercise concurrent powers in the enforcement of Copyright.

This is a welcome development worthy of emulation. The Inspectors have been prepared

734

[1998] 11 N.W,L.R. (Pt. 575). p.547.

735

Section 174 of the 1999 Constitution of Nigeria.

736

C.R.A.N. Section38 (3).

737

Ibid. Subsection (4).

738

Ibid. Subsection (5).

739

Suit No: FCT/HC/M/5222/2011, quoted by J. Asein, Nigerian Copyright Law & Practice, Op. Cit. p.360.

184

optimally in the area of Copyright enforcement since they came into being, even though their

efficiency is being hampered by the non availability of intelligence equipment. Besides, the

Inspectors‟ efficiency/efficacy is battling with a very corrupt system inherent in the Nigerian

system.

4.14.4 Copyright Licensing Panel

In its bid to achieve a holistic enforcement of Copyright in Nigeria, the Nigerian Act

empowers the Nigerian Copyright Commission to grant compulsory licenses in accordance

with the provisions of the Act.

740

In exercising its powers under the Act, the Commission

shall in any case, in which an application is made to it, constitute a Copyright Licensing

Panel.

741

The panel shall consist of five persons at least three of whom shall be members of

the Governing Board of the Commission, and one of whom shall be designated as the

Chairman of the Panel.

742

The Commission may make regulations providing for the

procedure of the Panel under the Fourth Schedule to the Act, and providing generally for the

execution of the functions of the Panel.

743

The Act further mandates any qualified person to

apply to the Commission for license to produce and publish a translation of a literary or

dramatic work which has been published in printed or analogous forms of reproduction for

the purpose of teaching, scholarship or research.

744

Such an applicant shall along with the

application made in the prescribed manner and stating the proposed retail price or a copy of

the translation of the work, deposit with the Commission such fee as may be prescribed.

745

After holding such inquiry as may be prescribed, the Commission shall grant to the applicant

a license, not being an exclusive license to produce and publish a translation of the work in

the language mentioned in the application on the condition that the applicant shall pay

740

C.R.A.N. Section 35 (a).

741

Ibid. Paragraph (b).

742

Ibid. Paragraph (c).

743

Ibid. Paragraph (b).

744

Ibid. Paragraph (c).

745

Ibid. Paragraph (e).

185

royalties to the Copyright owner for copies of the work sold to the public, calculated at such

rate as the Commission may in the circumstances of each case, determine in the prescribed

manner.

746

However, no license shall be granted by the Commission under this paragraph

until the expiration of one year from the date of first publication of the work where the

application is for a license for a translation into any language spoken in Nigeria other than

English; or three years from the date of first publication of the work where the application is

for a license for translation into English.

747

The Commission cannot grant such license where

the owner of the Copyright had granted such license in the same manner as the one sought by

the applicant; or where the applicant failed to prove to the Commission that he had made such

request to the Copyright owner but he refused same; or he was unable to find such owner

after due diligence on his part; and that he sent a copy of such request by air mail to the

author whose name appears on the work, at least two months before the date of the

application for license.

748

The Act also empowers the Commission to grant license to produce and publish works for

certain purposes if the copies of such editions are not made available in Nigeria, or such

copies have not been put on sale in Nigeria for a period of six months by the Copyright owner

or a person authorized by him.

749

Similarly, the Act provides:

750

any Broadcasting organization in Nigeria or any qualified person who is

a holder of a license for a television or broadcasting station may apply

to the Commission for a license to produce and publish the translation

of the following works:

(a) a work referred to in paragraph 2 of the Fourth Schedule to the

Copyright Act published in printed or analogous forms of reproduction;

or

(b) any text incorporated in audio-visual fixations prepared and published

solely for the purpose of systematic institutional activities, for

746

Ibid. Paragraph 2 (1) of the Fourth Schedule.

747

. Ibid.Paragraph 2 (2) & (3).

748

Ibid. Paragraph 2 (4).

749

Ibid. Paragraph 2 (6).

750

Ibid. Paragraph 2 (7).

186

broadcasting such translation for purpose of teaching or for the

dissemination of the results of specialized, technical or scientific

research to the experts in any particular filed.

4.14.5 Collecting Societies

There is no gain repeating the fact that authors and creators of works are the primary owners

of the Copyrights in the works so created, as well as the first beneficiaries of such rights. It is

expected that the Copyright owners should be responsible for ensuring that their rights are

effectively administered and enforced. That notwithstanding, it is becoming near impossible

for these owners to effectively administer and protect all their rights individually. This is

because some of the right owners may either not be able to monitor the numerous points

where their works are being exploited, or the exploitation may be one they may find

economically disadvantageous to stop. This necessitated the idea of collective management of

Copyright which was first

propounded by a French playwright, Pierre-Augustin Caron de Bea

Umarchais in the 1700s.

751

Thereafter, he created the General Statutes of Drama in Paris,

France in 1777 which started as a meeting of twenty-two famous writers of the comedic

Français, and later laid down the foundation for the French Society of Drama Authors

otherwise called Soceite des Auteurs Dramatiques.

752

In 1838, Honore de Balzac and Victor

Hugo established the society of writers.

753

This development of Collective Societies spread to

other nations and in 1926, the International Confederation of Societies of Authors was born

on the international plane.

754

This body which now has about two hundred and twenty-five

member societies in one hundred and eighteen countries established uniform principles and

methods in each country for the collection of royalties and the protection of works.

755

Thus,

the Copyright system provides for the collective administration of the rights of Copyright

751

Daniel Gervais, Collective Management of Copyright and Related Rights (2

nd

edition, Netherlands:

Kluwer Law International, 2010) p.1.

752

Ibid. p.4.

753

Ibid.

754

Ibid.

755

Ibid.

187

owners as an alternative to non-voluntary licensing of the rights concerned. Under this

arrangement, Copyright owners surrender their rights to an association of right owners with a

mandate to the association to act on their behalves in the negotiation of grant of licenses,

tariffs and the collection of agreed royalties which the association will subsequently distribute

to the right owners. The mechanism is termed „Collecting Society‟.

The Nigerian Act provides that a collecting society may be formed in respect of any one or

more rights of Copyright owners for the benefit of such owners, and the society may apply to

the Commission for approval to operate as a Collecting Society for the purpose of the Act.

756

The law having given the Copyright owners the exclusive power to do or authorize the doing

of certain acts in relation to their works, Copyright owners reserve the right to grant licenses

on their own terms and conditions including the right to demand payment of fees in return for

such licenses. Right Owners reserve the right to refuse to grant such licenses. In

Phonographic Performance Ltd. v Saibal Maitra,

757

the Court held that it was not an abuse

for the plaintiff to refuse to license its Copyright without an appropriate payment for past use

and agreement for future use.

Collective administration of rights also recognizes the personal

nature of the exclusive rights of authors coupled with the fact that an author may choose to

administer such rights directly or through an agent. One of the most effective ways of

safeguarding these rights is by assigning them to a Collecting Society which in turn gives

blanket authorization to users. This group of persons also include a bodies corporate.

758

However, for a body to be granted approval by the Nigerian Copyright Commission to

operate as a Collecting Society, such body must satisfy the Commission that:

759

(a) it is incorporated as a body limited by guarantee;

756

CRA.N. Section 39 (1).

757

[1998] F.S.R. p.749.

758

. Ibid.

759

C.R.A.N. Section 39 (2).

188

(b) its objects are to carry out the general duty of negotiating and granting

Copyright license and collecting royalties on behalf of Copyright

owners, and distributing same to them;

(c) it represents a substantial number of owners of Copyright in any

category of works protected by this Act (including owners of

performer‟s rights);

(d) it complies with the terms and conditions prescribed by regulations

made by the Commission.

It is crystal clear that a Collecting Society which is not registered as a company limited by

guarantee cannot be approved by the Commission to act as a Collecting Society, and thus,

cannot bring an action for infringement of Copyright before any Court of law. This is more

buttressed by the provisions of the Act which states that notwithstanding the provisions of the

Act or any other law, no action for the infringement of Copyright or any right under this Act

shall be commenced or maintained by any person carrying on the business of negotiating and

granting license; collecting and distributing royalties in respect of Copyright works, or

representing more than fifty owners of Copyright in any category of works protected by the

Act; unless it is approved under the Act to operate as a Collecting Society or is otherwise

issued with a certificate of exemption by the Commission.

760

The Nigerian Copyright

Commission has in the exercise of the powers conferred on it by the Act, made a Regulation

for the management of Collecting Societies.

761

The Regulation provides that subject to the

conditions specified in the Copyright Act, a company seeking approval to operate as a

Collecting Society is required to make a formal application in the prescribed form in the

Schedule to these Regulations and upon payment of the prescribed fee, for grant of license to

operate as a Collective Management Organization.

762

The company is also required to furnish

the Commission with the following documents:

763

a. certificate of registration in respect of the company, issued under

the Companies and Allied Matters Act;

760

Ibid. Section 17.

761

Copyright (Collective Management Organizations) Regulations, 2007.

762

Ibid. Section (1).

763

Ibid. Subsection (2).

189

b. the Memorandum of Association of the company;

c. Articles of Association of the company;

d. a statement indicating the cases of rights or category of right

owners in which the Collecting Society owns rights, or intends to

represent or act for;

e. membership list of not less than 100 right owners representing the

class(es) of right for which the company is seeking a license to

operate as a Collecting Society. The list should indicate the signed

consent of such persons to belong to the organization or where the

organization has been in existence, that they are members of the

organization;

f. an undertaking by at least five directors including the chairman of

the company, that the company will comply with the provisions of

the Copyright Act and the Regulations;

g. a copy of the membership agreement used by the Organization;

h. evidence of payment of the prescribed fee(s); and

i. such other documents as may be required by the Commission.

Upon approval, the Collecting Society is issued a certificate as evidence of its license to

operate as a Collective Management Organization.

764

However, the Commission may refuse

to grant a license if it is not satisfied with the application of a company.

765

Again, where the

applicant does not meet the requirements but the Commission considers that it may be able to

do so before a final decision is made on the application, the Commission may accept the

application subject to such modifications, conditions or limitations as may be appropriate.

766

The license granted to a society is valid for three years and may be renewed every two years

in accordance with the conditions stipulated by the Act.

767

The Commission may refuse to

renew such application if the society no longer meets the requirement for grant of license.

768

The Governing Board of a Collecting Society should as far as possible, be representative of

the different classes of the right owners in the Society.

769

The rights and privileges granted

764

Ibid. Section 1 (7).

765

Ibid. Subsection (6).

766

Ibid. Subsection (7).

767

Ibid. Subsection (9).

768

Ibid. Subsection (3).

190

under the Regulations are without prejudice to any privileges, reliefs or remedies available to

them under their membership agreement or any applicable legislation.

770

Similarly, a member

of a Collecting Society may withdraw his membership of the society or the rights assigned to

the Organization in respect of any of his works upon giving reasonable notice to that effect to

the Commission.

771

The Regulation provides that a Collecting Society shall distribute collected royalties to its

members in a manner that reflects as nearly as possible, the actual usage of the work in its

repertoire. Thus, Collecting Societies are to establish a distribution plan that is fair and

equitable based on a procedure acceptable to its members and information furnished by

users.

772

It is understood that the relationship between a Collecting Society and the users of

its works is a matter of contractual agreement. Accordingly, where there is an existing

contract, the user is bound to honour the terms of the agreement.

773

There are also additional

provisions to safeguard both the interest of users and members against the excesses of the

Society. Thus, a Collecting Society must make available to users, on non-discrimination

terms, the complete repertoire of works with respect to which it is representing right

owners.

774

The Society is also required to draw up tariffs in respect of the royalties that it

demands for the usage of Copyright works in its repertoire.

775

The Regulations also permit a

Collecting Society to enter into agreement with Trade Associations concerning the use of

their repertoire by members of such Trade Associations.

776

Where there is such agreement,

the Collecting Society is required to notify the Commission of any tariff scale accepted under

769

Ibid. Section 5 (3).

770

Ibid. Subsection (4).

771

Ibid. Subsection 6.

772

Ibid. Subsection 15.

773

Musical Copyright Society of Nig. Ltd. v Nigeria Hotels Ltd. Unreported Suit No.FHC/L/43/89,quoted by J

Asein, Nigerian Copyright Law & Practice, Op. Cit. p.186.

774

C.R.A.N. Section 13 (1).

775

Ibid.

776

Ibid. Subsection (4).

191

such agreement.

777

However, a dispute arising from any matter under the Regulations shall be

referred to the Commission which may set up a Dispute Resolution Panel to resolve the

dispute.

778

The Regulations further provide that where there is dispute between a Collecting

Society and a user over the tariffs payable by the user, such dispute is to be referred to the

Commission which may set up a Tariffs Arbitration Panel for the purpose of resolving the

dispute.

779

4.14.6 Custom and Excise

According to the Nigerian Act, the owner of Copyright in any unpublished literary, artistic or

musical work or sound recording, may give notice in writing to the Department of Customs

and Excise that he is the owner of the Copyright in the work; and that he requests the

Department during the period specified in the notice, to treat as prohibited goods, copies of

the work to which the relevant provisions of the Nigerian Copyright Act apply.

780

The period

specified in such notice shall not exceed five years and shall not extend beyond the end of the

period for which the Copyright subsist.

781

This section applies in the case of a work, to any

printed copy made outside Nigerian which if it had been made in Nigeria, would be an

infringing copy of the work.

782

Where a notice has been given under this section of the Act in

respect of a work and has not been withdrawn, the importation into Nigeria at a time before

the end of the period specified in the notice of any copy of the work to which this section

applies shall be prohibited.

783

This section does not apply to the importation of any article by

a person for his private and domestic use.

784

However, where any such notice is given to the

Commission in respect of a work, neither the Department of Customs and Exercise nor any

777

Ibid. Subsection (5).

778

Ibid. Section 14.

779

Ibid.

780

C.R.A.N. Section 44 (1).

781

Ibid. Proviso to Section 44 (1).

782

Ibid. Subsection (2).

783

Ibid. Subsection (3).

784

Ibid. Proviso to Subsection (3).

192

member, officer, servant or agent of the Department of Customs and Exercise shall be liable

to the owner of the work or to any other person for any act or omission by the Department of

Customs and Exercise or its servants or agents in relation to the notice.

785

However, where

the owner has suffered loss as a result of any such act or omission and a fee has been paid or

is payable to the Department of Customs and Exercise in respect of the notice, any amount

equal to the loss or the amount of the fee for one year, which is less, shall be repaid by the

Department of customs and Exercise to the owner, or if the fee has not been paid, shall be

waived.

786

It is the duty of the Minister of Internal Affairs to make regulations prescribing the form in

which the notices are to be given under the Act, and requiring a person giving such a notice,

either at the time of giving the notice or at the time when the goods in question are imported;

or at both of those times to furnish the Department of Customs and Exercise with such

evidence and to comply with such other conditions if any, as may be specified in the

regulations.

787

Any such regulation may include such incidental and supplementary

provisions as the Minister of Internal Affairs considers expedient for the purposes of this

section of the Act.

788

4.14.7 Enforcement through the Police

Notwithstanding the fact that the Nigerian Act confers on a Copyright Inspector, the powers

of a police officer with respect to Copyright enforcement, it is obvious that the police are

usually involved in the enforcement of Copyright in Nigeria. This is because there are aspects

of infringement of Copyright that are criminal in nature.

789

However, the Act does not

prescribe any steps to be taken to initiate criminal proceedings in infringement cases. In the

785

Ibid. Subsection (4).

786

Ibid. Proviso to Subsection (4).

787

Ibid. Section 44 (5).

788

Ibid.

789

C.R.A.N. Section 20.

193

face of the lacuna, the provisions of the Criminal Procedure Act of the Southern State of

Nigeria and its equivalent in the Northern States of Nigeria, which is the Criminal Procedure

Code

790

regarding Criminal Proceedings shall be adhered to.

In instituting criminal

proceedings, the complainant is empowered to report any case of breach of the law to the

police for necessary actions. The police will then conduct the necessary investigations

regarding the complainant and may invite the suspect for questioning. After duly

investigating the matter, the suspect shall be arraigned in Court to face trial if there is a prima

facie case against him. The Nigerian Act authorizes the police to seize infringing articles in

connection with a suspected offence.

791

Similarly, the Court may issue an order upon such

terms as it deems just, authorizing an applicant in a case of alleged infringement to enter the

house or premises where there are infringing copies or materials, at any reasonable time by

day or night accompanied by a police officer not below the rank of an Assistant

Superintendent of Police, and may seize, detain and preserve any such infringing copy or

contrivance; or inspect all or any documents in the custody or under the control of the

defendant relating to the action.

792

4.14.8 Enforcement through the Courts.

Copyright is an incorporeal right which can only be realized and protected through legal

actions, depending largely on the facts of each case. Even though it is more cost effective and

business friendly to embrace alternative dispute resolution mechanisms such as mediation

and arbitration in the settlement of disputes arising from infringement of Copyright,

enforcement of Copyright through the Courts is the most effective form of protection of

Copyright. In Nigeria however, it is not every Court that can entertain Copyright matters.

Jurisdiction to entertain Copyright matters is expressly conferred by law. The jurisdiction to

790

Cap. C41. Laws of the Federation of Nigeria, 2004.

791

C.R.A.N. Section 20 (5).

792

Ibid. Section 25 (2).

194

entertain Copyright matters is exclusively conferred on the Federal High Court;

793

which also

has the exclusive jurisdiction to entertain trials of offences or disputes under the Copyright

Act.

794

This is so even though the aforementioned section of the Constitution speaks of civil

cases, while the Act speaks of offences which imply criminal infringement of Copyright. It

has been rightly held that there is nothing in the above mentioned paragraphs to suggest that

both the Federal High Court and State High Court have concurrent jurisdiction to entertain

matters specified in the aforementioned section of the Nigerian Constitution.

795

It is also true

that the commencement of a Copyright action in the wrong venue does not necessarily defeat

the plaintiff‟s case. This is because by the express provisions of the Rules of the Court, all

suits and actions relating to Copyright are to be commenced by and determined in the Judicial

Division in which the defendant resides; or where the alleged passing off or infringement

took place.

796

Similarly, the expression „in the Federal High Court exercising jurisdiction in

the place where the infringement occurred‟ may not pose any serious danger to litigants

regarding the correct interpretation of the provision. This is because there is one Federal High

Court in Nigeria even though it is divided into judicial divisions for administrative

convenience. Besides, an action commenced in a wrong judicial division may be entertained

so long as the defendant raises no objection to the venue, or if the Court otherwise directs.

797

The Court has the power to order that the case be transferred to the Judicial Division to which

it is proved to its satisfaction that it belongs; or failing such proof order that it be retained and

proceeded with in the Court in which it had been commenced.

798

793

Sections 251 (1) (f) & 251 (3) 1999 Constitution of Nigeria (as amended).

794

C.R.A.N. Section 46.

795

Ali v Central Bank of Nigeria [1997] 4 N.W.L.R. (pt. 498) p.192.

796

Order 2 (1) Rule 1 (8) of the Federal High Court (Civil Procedure Rules), 2009.

797

Ibid. Order 2 Rule 9 (3).

798

Ibid. Order 2 Rule 9 (4).

195

The Federal High Court is also empowered to transfer a case pending before it to any judge

or Court at any stage of the proceedings before final judgment.

799

The inter-divisional

principle above stated also applies mutatis mutandis to criminal proceeding. This is because

the Federal High Court Act makes the provisions of the Criminal Procedure Act generally

applicable nationwide in Criminal Proceedings before the Court.

800

This fact is supported by

the express provisions of the Criminal Procedure Act which states that a judge may assume

jurisdiction over an offence which was committed in another Judicial Division if he considers

that the ends of Justice would be better served by hearing the charge against such persons.

801

It should be noted that in Copyright infringement matters, there is room for the joinder of a

party or striking out of a party who ought not to have been joined.

802

In the same vein,

Copyright infringement is actionable at the suit of the Copyright owner in the work, his

assignee or an exclusive Licensee.

803

Plaintiff can only sue for infringement if he is of the

view that an infringement of his work has occurred. However, he must establish that the work

involved is one for which Copyright subsists under the Act; that the alleged infringer, without

his prior consent and authorization, does at least one of those acts reserved for the Copyright

owner; and that the use made of that portion of the work that was taken is not otherwise

excused under the law.

804

Such Plaintiff must also satisfy the rules of locus standi by showing

that he has sufficient interest in the work to justify his right standing to maintain the action.

Moreso, in a case of infringement of Copyright in which both the owner of the right and his

licensee have concurrent rights of action, each of them can only bring an action to the

exclusion of the other with the leave of Court, or better still, the other must be joined as co-

799

Federal High Court Act, (Cap. F12), Laws of the Federation of Nigeria, 2004, Section 22 (1).

800

Ibid. Section 33 (1).

801

Criminal Procedure Act, sections 70 & 71, Op. Cit.

802

PRS v London Theaters Varieties Ltd. (1924) A.C. p.1.

803

C.R.A.N. Section 16 (1).

804

J Asein, Nigerian Copyright Law & Practice, Op. Cit. p.280.

196

plaintiff or as a defendant.

805

Where the plaintiff‟s interest is merely an equitable title, he

would be required to join the legal owner of the right, although he may maintain actions for

Interlocutory reliefs on his own.

806

A plaintiff who had no title to Copyright cannot

successfully sue for infringement even if he acquires the right after the suit.

807

So is an

ordinary licensee or a non-exclusive Licensee not entitled to maintain an action for

infringement in his own name.

808

But an assignee or exclusive licensee is in a superior

position to a non exclusive licensee; and can maintain an action for infringement in his own

name. Furthermore, a plaintiff can sue any person who infringes his Copyright by doing or

causing any other person to do an act, the doing of which is controlled by Copyright.

809

It is necessary to note the difference between criminal actions for infringement as against

civil suits; even though Copyright infringement may give rise to either or both civil and

criminal proceedings.

810

Thus, both criminal and civil actions may be taken simultaneously in

respect of the same infringement even though the two procedures are not alternatives but

cumulative. For while the state may prosecute the infringer over the criminal aspect of the

infringement, the right owner may sue the infringer claiming other reliefs for injuries suffered

as a result of the infringement. It should be born in mind that even though monetary

compensation to the right owner is often preferred by right owners, the threat of punishment

in cases of criminal infringement is a more effective deterrence. In the latter situation,

Copyright Inspectors and the police are involved in the investigations of the alleged

infringement.

811

If found wanting, the infringer will be arraigned, and if the Court finds him

guilty, he will face imprisonment, fine, or both imprisonment and fine.

812

805

C.R.A.N. Section 16 (2).

806

Performing Rights Society Ltd. v London Theatre of Varieties Ltd. [1924] A.C. p.1.

807

Belegging-en Exploitatiensatschaping Lavender B. v Witten Industrial Diamonds Ltd. [1979] F.S.R. p.59.

808

Nicol v Barranger [1917-23] Mac. C.C. p.219.

809

C.R.A.N. Section 15 (1).

810

Ibid. Section 24.

811

Ibid. Section 20.

812

N. C. C. v Okechukwu (Unreported Suit No. ABJ/CR/56/2012, judgment delivered on 23

rd

Oct., 2012,

197

In civil cases, the right owner reserves the right to sue the infringer. There are usually

available remedies in any corresponding proceedings in respect of an infringement of other

proprietary rights.

813

These include: damages, injunctions, accounts for profit, order for

inspection and seizure, as well as delivery up of infringing materials.

814

The Act further states

that all the infringing copies of a Copyright work and all plates, master tapes, equipment,

contrivances and machines used or intended to be used for the production of such infringing

copies are deemed to be the property of the owner, assignee or exclusive licensee of the

Copyright as the case may be.

815

It must be pointed out at this juncture that the law empowers the Courts to grant a good

number of reliefs in cases of Copyright violations in order to check piracy. One of these

reliefs is called Damages which is a term of art applying where one person does a wrongful

act for which the person whose right is infringed may obtain compensation in an action.

816

It

has also been said that as a matter of principle, the award of damages is intended to restore

the injured party, as much as is possible, to the same position as he was or would have been

had the infringement not occurred.

817

However, because the Court is not given to

arbitrariness, the amount of damages awarded to a plaintiff would not be in excess of the

amount by which the defendant‟s infringement had depreciated the Copyright. Therefore,

while the Court will take into account any loss suffered by the plaintiff as a result of the

infringement of his Copyright as is the case in other tortuous actions, such as consequential

by Kafarati, J. at Federal High Court, Abuja Division);N.C. C. v Kalu (Unreported Suit No.

FHC/ABJ/CR/12/2012, judgment delivered on 28

th

March, 2012, by Adamu Bello, J. at Federal High

Court, Abuja Division).

813

C.R.A.N. Section 16 (1).

814

Ibid. Section 25.

815

Ibid. Section 16; N. C. C. v Anayo (Unreported Suit No. FHC/ABJ/CR/10/2012, judgment delivered on 12

th

March, 2012, by Kafarati, J. at Federal High Court, Abuja Division); N. C. C. v Obasi (Unreported Suit No.

FHC/ABJ/CR/16/2012, judgment delivered on 30

th

May, 2012, by Gladys K. Olotu, J. at Federal High

Court, Abuja Division); N. C. C. v Igwe (Unreported Suit No. FHC/ABJ/CR/93/2012, judgment

delivered on 30

th

Jan., 2013, by Chukwu, J. at Federal High Court, Abuja Division).

816

Island Records Ltd. v John Holts Shipping Services (1985) F.H.L.R. p.264.

817

General Tire &Rubber Co. v Firestone Tyre & Rubber Co. Ltd. [1975] 1 WLR p.819.

198

loss due to reduction of sales and direct loss of profit, such loss must have arisen directly and

naturally from the act of the defendant‟s infringement of the Copyright.

818

It has also be held

that if it is proved that the parties could not have foreseen a cash flow crisis that beset the

plaintiff‟s business as a likely result of the defendant‟s infringement, the Court would not

grant damages for such secondary losses.

819

This is known as the principle of remoteness

which is applicable in the field of tort.

The Nigerian Act further makes provisions for the award of additional damages in

appropriate cases. It provides that where in an action under this section, an infringement of

Copyright is proved or admitted, and the Court in which the action is brought, having regard

to the flagrancy of the infringement; and any benefit shown to have accrued to the defendant

by reason of the infringement, is satisfied that the effective relief would not otherwise be

available to the plaintiff, the Court, in assessing damages for the infringement, shall have

power to award such additional damages by virtue of this subsection as the Court may

consider appropriate in the circumstances.

820

It is submitted that even though the phrase „additional damages‟ may resemble aggravated

and exemplary or punitive damages available in the other fields of law of tort, the difference

is that the remedies require that the Court should consider the aggravation emanating from

the flagrancy of the defendant‟s infringement and the excessive profits that may have accrued

to him.

It is important to note that in awarding damages, the Court must first of all assess the

damages suffered by the plaintiff before making an award of damages. The House of Lords

had noted that the computing of the damages due to the plaintiff as compensation for the

818

BIM Bros. Ltd. v Keene & Co. Ltd. [1918] 2 Ch. p.281; Sutherland Publishing Co. Ltd. v. Caxton

Publishing Co. Ltd. [1936] Ch. p.336.

819

Claydon Architectural Metal Work Ltd. v. D.J. Higgins & Sons Ltd. [1977] F.S.R. p. 475.

820

C.R.A.N. Section 16 (4).

199

infringement of his Copyright could be daunting as a result of the obvious difficulty in

assessing the monetary value of a Copyright work and loss incurred by the plaintiff as a result

of the infringement

821

This difficulty notwithstanding, a Court faced with such challenges is

required to do its best to reach a fair assessment.

822

In doing so, the Court will take into

account, the nature of the work; the status of the author‟s evidence of any previous

transactions, loss of business goodwill, and other circumstances surrounding the case.

823

Thus, the fact that the plaintiff might not be able to prove the application of one measure of

damages, namely loss of sales, does not mean that he had suffered no damages at all, but

rather that some other measures by which to assess the compensation for that interference

with the property right had to be sought.

824

The Court would compute the damages by

reference to profits foregone in respect of lost sales and by way of royalty for other infringing

sales as for instance, in patent infringement cases.

825

In Yemitan v Daily Times Ltd.,

826

the

plaintiffs claim was that the defendant‟s infringed his Copyright in an article titled „The Day

the Lagon Caught Fire‟ which was first published in Nigerian Magazine of December, 1963.

It was alleged that the defendant produced verbatim in their own Headline Magazine without

the plaintiffs‟ consents with the title „The Day the Lagos Lagoon Caught Fire‟. Evidence

placed before the Court showed that the defendant‟s work was similar to that of the plaintiffs‟

except that the first three paragraphs of the defendant‟s work were re-arranged with minor

omissions. In all, the plaintiffs‟ work had 26 paragraphs while the defendant‟s work had 24

paragraphs, 23 of which were verbatim reproductions from plaintiffs‟ work. In the opinion of

the Court, the defendants‟ work was too close to the Plaintiffs‟ work to be a mere

coincidence. The Court found that there was substantial copying of the plaintiffs‟ article

without their consent which was enough to render the defendant liable for infringement.

.

In

821

Redrow Homes Ltd. v Betts Brother Plc. [1998] F.S.R. p. 345 (H.L).

822

Koroye v West African Examination Council [1974] 12 CCACJ, p.1853 at p.1857.

823

J Asein Nigerian Copyright Law & Practice, Op. Cit. p. 303.

824

Ibid.

825

Blayney v Clogau St David’s Gold Mines Ltd. [2003] F.S.R. p.19 (C.A.).

826

[1980] F.H.C.L.R. p.186.

200

awarding damages for the breach of Copyright against the defendant, the Court considered

the provisions of the Copyright Nigeria Act of 1970

827

and awarded additional damages to

the plaintiffs. While doing so, the Court adopted the dictum of lord Esther in Exchange

Telegraph Co. v Gregory & Co. that „in an action for infringement of Copyright, it is not

necessary to give further proof of actual damages, the damage is at large‟.

828

In Yemitan‟s

case, the Court remarked that it is not the standing or wealth of the infringer that mattered but

what he gained from the infringement.

829

In the wordings of the Court, „a poor man is equally

liable for a breach of Copyright as a rich man but a bigger profit should pay more tax than a

small one‟. On the basis of this, the Court awarded Ten Thousand Naira to the plaintiffs as

general damages for the defendant‟s infringement of their Copyright. The Court further took

into account the flagrancy of the infringement and awarded fifteen thousand Naira to the

plaintiffs as additional damages.

830

It should be noted that additional damages will be most appropriate where the continuous

nature of the infringement cannot be stopped by a mere injunction, or where the defendants

treacherous conduct actually humiliated the plaintiff;

831

or where the defendant fetched an

excessive pecuniary gain as in Yemitan‟s case;

832

or where the plaintiff‟s feeling is seriously

injured due to the defendant‟s recklessness or ill motive;

833

or the commitment of an

infringement in breach of an injunction.

834

In Nottinghamshire Healthcare National Health

Service Trust v News Group Newspapers Ltd.,

835

the defendant had published a photograph

that had been stolen from the Medical notes of a patient at a hospital.

The Court was of the

opinion that there was no public interest in the publication of the photograph and that the

827

Copyright Act of Nigeria, 1970, section 12 (3), which is equivalent to C.R.A.N. Section 16(4).

828

[1986]1 Q.B. p.147.

829

Supra. p.186.

830

Ibid.

831

Nichols Advanced Vehide Systems Inc. v Rees [1979] R.P.C. p.1270.

832

Ravenscroft v Herbert [1980] R.P.C. p. 193, at p.208.

833

Williams v settle [1960] 2 All E.R. p.806.

834

Phonographic Performance Ltd. v Reader [2005] F.S.R. p.42.

835

[2002] E.M.L.R. p.33.

201

defendant used that photograph either knowing that the hospital could and would object to its

use, or without caring whether it objected or not. The Court then held that a case of

infringement was established and then awarded Four Hundred and Fifty (£450.00) Pounds

damages and additional damages of Ten Thousand (£10,000) Pound to the plaintiff.

It is observed that it is not only general damages and additional damages that are available to

the plaintiff in a case of Copyright infringement. The Nigerian Act expressly gives such

plaintiff or the defendant in a counter claim, the right to other reliefs by way of damages,

injunction, accounts and all such reliefs available to the plaintiff in any corresponding

proceedings in respect of infringement of other proprietary rights

836

as shall be discussed

hereunder.

Again, an order of injunction is available restraining an infringer of Copyright from

continuing to carry out Copyright infringement actions. The party against whom an order of

injunction is made shall be liable in contempt if he deliberately disobeys the order of

Court.

837

Injunction may be interlocutory or perpetual. An applicant may bring an application

for interim injunction restraining the defendant from further committing the infringement

pending the determination of the case. Furthermore the Court may at the end of the case and

during judgment issue a perpetual injunction against the defendant. In all cases of injunction,

the plaintiff must have a legal or equitable right which the Court is capable of enforcing.

Thus, the applicant must not only have a ground for complaining for the breach of his rights,

the Court where the action is instituted must have jurisdiction to entertain same.

838

An

injunction being an equitable remedy, is discretionary and cannot be granted as a matter of

course. It is only granted judicially and judiciously.

839

However, the plaintiff‟s unnecessarily

836

C.R.A.N. Section 16 (1).

837

Seaward v Paterson [1897] 1 Ch. p.545.

838

Sislinas v Distos Compania Naviera S.A. [1979] A.C. p.210.

839

Mother Care Ltd. v Robson Books Ltd. [19790] F.S.R. p.466; Alfred Mimhill Ltd. v Sunoptic S.A. [1979]

F.S.R. p.337.

202

delay in bringing an application for injunction where there is need to do so may be construed

as acquiescence and in any event, the defendant must not be misled or deceived to assume a

particular prejudicial position as a result of such delay.

840

In determining whether to grant or

refuse an application for injunction, the Court may be influenced by other factors such as the

conduct of the defendant in the particular circumstances of the case, or the likely effect of a

grant on his business.

841

In all cases of injunction, the Court must satisfy itself that the

plaintiff has an arguable case and not even a strong case that has a real prospect of being

upheld by the Court.

842

The Court must also assess the adequacy of damages as alternative

remedy for any eventual injury that may be suffered by the plaintiff in the event of the failure

of the Court to grant injunction. Thus, if the injury to be suffered by plaintiff for the failure to

grant the injunction cannot be compensated monetarily, injunction shall be granted.

843

It is worthy to note that even though the sole purpose of injunction is to preserve the res

pending the determination of the case and to enable the winning party to reap the fruits of his

judgment, the Courts are reluctant to grant injunction due to the inherent dangers attendant to

it. The Act expressly prohibits the granting of an injunction in any proceedings for Copyright

infringement so as to require a completed or partly completed building to be demolished or to

prevent the completion of a partly completed building.

844

It should further be noted that

injunction being an equitable remedy, he who prays the Court to grant it must come to the

Court with clean hands. Moreover, where in an action for infringement, it is proved or

admitted that an infringement was committed but that at the time of the infringement, the

defendant was not aware and had no reasonable grounds for suspecting that Copyright

subsisted in the work to which the action relates, the plaintiff shall not be entitled under this

section to any damages against the defendant in respect of the infringement, but shall be

840

The Great American success Co. Ltd. v Katteinch [1976] F.S.R. p.554.

841

Hymac v Priestman Bros. Ltd. [1978] R.P.C. 495 Netlon v. Bridport {1979} F.S.R. p.530.

842

Saraki v Kotoye [1989] 1 N.W.L.R. (pt.98), p.419.

843

Ibid.

844

C.R.A.N. Section 16(5).

203

entitled to an account of profit in respect of the infringement, whether or not any other relief

is granted under the Act.

845

This clearly shows that injunction does not lie against innocent

infringers.

On the other hand, in a situation where an infringer is caught with infringing copies of the

plaintiff‟s works, he will be compelled by the Court to account for the profit he made of those

infringing copies of the work to the original author of such work. This applies when there is

an action for infringement of Copyright and it is proved or admitted that an infringement was

committed but at the time of the infringement, the defendant was not aware and had no

reasonable grounds for suggesting that Copyright subsisted in the work to which the action

relates. In such a situation, the plaintiff shall not be entitled to damages against the defendant

for such infringement but shall be entitled to account of profit or profits in respect of the

infringement, whether or not any other relief is granted.

846

The primary purpose of this

remedy is to prevent unjust enrichment.

847

However, this remedy cannot avail any plaintiff

who has been adequately compensated in damages for the infringement complained of, or for

conversion, the general principle being that an account of profit is a condonation of the

alleged infringement.

848

In dealing with an application for account, the Court will not only concern itself with the

profit made and will not make such an order if it is clearly shown that there was indeed no

profit.

849

But where the defendant made more profit out of the infringement, this remedy will

give a better recompense to the plaintiff. It may well be that the Court being a temple of

justice which is required do justice at all times, uses the remedy of account to do justice by

845

Ibid. Section 16 (3).

846

C.R.A.N. Section 16 (3).

847

Potten Ltd. v Yorkdose Ltd. [1990) F.S.R. p.11.

848

Caxton publishing Co. Ltd. v Sutherland Publishing Co. Ltd. [1939] A.C. p.178.

849

Copinger and Skone James on Copyright, quoted by J Asein, Nigerian Copyright Law & Practice

Opt. Cit. p.315.

204

depriving the guilty party of the benefits of his illicit enterprise and to restore to the plaintiff,

such profit and benefits which could have been his if not for the defendant‟s illicit enterprise.

In doing so, the Court must make some apportionment to ascertain what part of the total

profit made by the defendant is attributable to the infringement. Even though the Court may

not arrive at the actual figure so made, the assessment will help in restoring the parties, as

must as possible, to the situation they were before the infringement occurred. In justification

of this argument, Wigram observed in Colbum v Simms that:

850

it is true that the Court does not, by account, accurately measure

the damages sustained by the proprietor of an expensive work

from the invasion of his Copyright by the publication of a cheaper

book. It is impossible to know how many copies of the dearer

book are excluded from sale by the interposition of the cheaper

one. The Court, by the account, as the nearest approximation

which it can make to justice, takes from the wrongdoer all the

benefits he has made by his piracy, and gives them to the party

who has been wronged. In doing this, the Court may often give the

injured party more, infact, than he is entitled to, for non constat

that a single additional copy of the more expensive book would

have been sold, if injury by the sale of the cheaper book had not

been committed. The Court of equity, however does not give

anything beyond the account.

As a way of discouraging the infringement of Copyright, the Courts have been exercising

their discretionary powers to order the defendant to deliver up the possession of infringing

articles found in his possession. This common law jurisdiction is preserved by the Nigerian

Act.

851

In doing so, the Court should bear in mind that the Act does not prohibit the order of

delivery up being made against a person in whose possession infringing copies were found,

even though he is not the infringer, such as a distributor of the articles or a shop keeper who

850

(1843) 2 Hare, p.543.

851

C.R.A.N. Section 16 (1); N. C. C. v Nwankwo (Unreported Suit No. FHC/ABJ/CR/14/2012

judgment delivered on 27

th

Feb., 2012, by B. B. Aliyu, J. at Federal High Court, Abuja Division);

Raconteur Productions Ltd. v Dioni Visions Entertainment Ltd. & 2 Ors. (Unreported Suit No.

FHC/ABJ/CR/40/2017 judgment delivered on 2

nd

May, 2019, by Ibrahim Buba, J. at Federal High

Court, Abuja Division).

205

has infringing copies in his possession in the course of his business, whether or not he is

aware that the copies are infringing ones

852

.

According to the Nigerian Act, all infringing copies of any work in which Copyright subsists,

or any substantial part thereof, and all plates, master tapes, machines, equipment or

contrivances used, or intended to be used for production of such infringing copies shall be

deemed to be the property of the owner, assignee or exclusive licensee, as the case may be, of

the Copyright who accordingly may take proceedings for the recovery of the possession

thereof or in respect of conversion thereof.

853

Thus, the two remedies contemplated under this

provision are: recovery of possession which is similar to delivery up of possession or the

common action of ditnue;

854

and action in respect of conversion, which in essence is an action

for damages.

855

The Court has stated that:

856

Conversion is all about dealing with goods in a manner

inconsistent with the right of the owner… provided that it is

established that there is also an intention on the part of the

defendant in doing so to deny the owner‟s right or to assert a right

which is inconsistent with the owner‟s right.

The Court further stated that intention becomes irrelevant where the act done is necessarily a

denial of the right of the owner or an assertion of a right inconsistent therewith. This denial or

assertion may be proved by establishing the doing of any of the acts which would constitute

an infringement under the Copyright Act.

857

It has also been opined that conversion consists

in an act intentionally done inconsistent with the owner‟s right that though the doer may not

know of or intend to challenge the proprietary or possessory right of the true owner.

858

852

Lagenes Ltd. v It’s At U.K. Ltd [1991] F.S.R.492.

853

C.R.A.N. Section 18; N. C. C. v. Okojie (Unreported Suit No. FHC/1/429

c

/2013, judgment delivered on 29

th

Jan., 2018, by Musa Haruna Kurya, J. at Federal High Court, Abuja Division); N. C. C.

v. Chekwesiri Chukwuemeka Josephat (Unreported Suit No. FHC/L/409

c

/2015, judgment delivered on 31

st

March, 2017, by Buba, J. at Federal High Court, Lagos Division).

854

J. Whitaker & Sons Ltd. v Publishers Circular Ltd. [1946-47] Mac. C.C. p.10.

855

Bim Bros. Ltd. v Keene & Co. Ltd. [1918] 2 Ch. p. p.281.

856

Per Justice Atkins, in Lancashire Yorkshire Railway v MasNicoll (1919) 88 L.J.K.B. p.601.

857

Ibid.

858

Per lord Porter in Caxton Publishing Co. Ltd. v Sutherland Publishing C. Ltd. [1939] A.C. p.178, at p.201.

206

Cleasby also opined that the rule of conversion in the law of tort is intended to protect the

property of the plaintiff and assumes that persons deal with the property in chattels or

exercise acts of ownership over them at their peril.

859

Thus, the tort of conversion requires

that the defendant‟s action be intentional, that is to say, to deal with the plaintiff‟s goods by

exercising dominion over them on his own behalf or on behalf of someone other than the

plaintiff.

860

In determining the damages to be awarded for conversion, the Court will be

guided by the value of the article in question to the owner. Lord Justice Roche rightly stated

that „the value is not necessarily the price for which the owner could sell the article. It may

have to be ascertained by finding out what price the public or some individuals are prepared

to pay for the infringing matter in the form in which it is offered‟.

861

Another effective relief granted in cases where it alleged that Copyright has been, is being or

is about to be infringed is the order for Inspection and Seizure, also known as „Anton Pillar

Order‟ This order is conceptualized because an infringer who is alerted that the right owner is

proceeding against him in a Court of law may decided to conceal his infringing activities by

disposing any incriminating material that could point to the alleged infringement or the level

of such infringement. Instead of the infringer to be allowed to conceal such evidence without

which he cannot be linked with the alleged infringement, the law gives the Copyright owner

the right to apply ex-parte for an order of inspection and seizure of the infringing materials.

This order of Court will permit the applicant or any person aiding him, to enter the

defendant‟s house or premises and remove any infringing copies, contrivances or materials

used to commit infringement. Accordingly, the Nigerian Act provides that:

862

where an ex-parte application is made to the Court, supported by affidavit

that there is reasonable cause for suspecting that there is in any house or

premises, any infringing copy or any plate, film or contrivance used or

859

Fowler v. Hollins [1872] L.R. p.7 ; or Q.B. p.616 at p.639.

860

G Kodilinye, The Nigerian Law of Torts, (London: Sweet & Maxwell, 1982), p. 194.

861

Ibid.

862

C.R.A.N. Section 25.

207

intended to be used for making infringing copies, or capable of being used

for the purpose of making copies or any other article, book or document

by means of, or in relation to which any infringement under this Act has

been committed, the Court may issue an order upon such terms as it deems

just, authorizing the applicant to enter the house or premises at any

reasonable time by day or night accompanied by a police officer not below

the rank of an Assistant Superintendent of Police to seize, detain and

preserve any such infringing copy or contrivance; or to inspect all or any

documents in the custody or under the control of the defendant relating to

the action.

The Act also states that any person who knowingly gives false information under this section

shall be guilty of an offence and liable on conviction to a fine of One Thousand Naira.

863

It is seems the provision of the Nigerian Act relating to inspection and seizures is a

codification of the common Law remedy of Anton Pillar injunction as enunciated in the

Locus classicus of Anton Pillar K.G. v Manufacturing Processes Ltd. & Ors.

864

In this case,

the plaintiff through an ex-parte application, sought inter alia, for the permission to enter the

defendant‟s premises to inspect all such documents in its possession relating to the machine

or machines and remove them into the plaintiff‟s solicitor‟s custody. By way of judicial

activism, the English Court of Appeal held that the order should be granted if by putting the

defendant on notice; there is grave danger that vital evidence will be destroyed. The first

Anton Pillar order granted in Nigeria was made in Ferado Ltd. v West Germany and Nigeria

Trading Co. Ltd.

865

The Anton Pillar order made by the Court was for the following terms:

866

(a) for the defendants to permit up to six persons (including a police

officer) to enter into the defendants‟ premises for the detention,

preservation and inspection of any movable property or thing that

would constitute a breach of the injunction prayed for in the suit;

(b) for the defendants to allow the plaintiffs‟ solicitor to inspect all or any

documents in the custody or under the control of the defendants relating

to the suit;

863

Ibid. Subsection (2).

864

[1976] F.S.R. 129; [1976] Ch. p.55.

865

[1980] F.H.C.L.R. p.116.

866

Ibid.

208

(c) for the defendants to produce, upon oath, any documents in their

possession or power relating to the matters in question in the suit.

In this suit, the plaintiffs are the sole distributors in Nigeria of Ferado products said to be

Ferado brake lining which were being sold by the defendants who were not customers of the

plaintiffs.

867

The plaintiffs filed this application alongside the action for infringement. The

motion was heard in chambers with the applicants showing that if the respondents became

aware of the proposed action or of the motion, the infringing goods and documents might

disappear from their premises, hence the need for the ex-parte application. The Court granted

the application adopting the principles in the Anton Pillar‟s case.

It should be stated at this juncture that the remedies discussed above are not the only

remedies/reliefs granted by the Courts in cases of Copyright infringement. There are other

interlocutory remedies awarded by Courts which are useful in dealing with intellectual

property cases including Copyright which shall not be discussed in this work for want of time

and space. As a matter of fact, Copyright owners are entitled to all remedies which are

usually available in any corresponding proceedings in respect of infringement of other

proprietary rights.

868

These include, Order for Retention, Discoveries, Stoppage in Transitu,

Discoveries and Interrogatories. It is also clear that since Copyright infringement is

essentially a tort, nothing bars a plaintiff from maintaining any of the traditional actions in

tort, in addition to the statutory remedies expressly provided for by the Acts aforediscussed.

It is equally important to state at this juncture that there are defences open to a defendant or

an accused person in cases of Copyright infringement. The two major defences contemplated

by the Act are the public interest defence of fair dealings, and innocent infringement. Thus,

where in an action for infringement of Copyright, it is proved or admitted that an

infringement was committed but that at the time of the infringement, the defendant was not

867

Supra. p.116.

868

C.R.A.N. Section 16 (1).

209

aware and had no reasonable grounds for suspecting that Copyright subsisted in the work to

which the action relates, the plaintiff shall not be entitled under this section to any damages

against the defendants in respect of the infringement, though the Copyright owner shall be

entitled to an account of profits in respect of the infringement, whether or not any other relief

is granted.

869

However, an infringer cannot avail himself of the defence of innocent

infringement by merely showing that he was not aware or had no reasonable grounds to

suspect the existence of Copyright in the work. It is immaterial that he in fact believed or had

reasonable grounds for believing that his conduct in relation to the work was not an

infringement. He will also not be entitled to the defence by showing that he assumed or

supposed the Copyright in the work to be in another person other than the real Copyright

owner; or that he made a mistake as to the actual owner of the Copyright in the work.

870

In

Byrne v Satatist Co.,

871

the plaintiff was the translator from Portuguese to English, of an

advertisement by the Governor of Balia, which was published in the Financial Times.

The

defendants published the English version of the advertisement in its own Newspaper without

the permission of the plaintiff. In their defence to an action for infringement of Copyright in

the work, the defendants argued that they were not aware of the existence of the Copyright in

the work and had no reasonable ground for suspecting that Copyright subsisted in the work.

They further adduced evidence before the Court to show that it was common practice in the

newspaper business for a previously published advertisement to be published by other

newspapers with the consent of the advertiser or his agent. In dismissing this defence of

innocent infringement, the Court noted that the position of the defendants was not so much

that they did not suspect the transaction is Copyright as they supposed that the Copyright was

in the Governor of Balia, whose instructions for its reproduction they had obtained. This

merely showed they had supposed themselves to have the authority of the Copyright owner as

869

C.R.A.N. Section 16(3).

870

Ibid.

871

[1914] K.B. p.622.

210

against not suspecting that any Copyright existed, the latter being the basis of innocent

infringement. Similarly, in John Lane the Bodley Head Ltd. v Associated Newspapers Ltd.,

872

the defendants published a short story in their newspaper which was submitted to them by

one S. It turned out that the story was as a matter of fact, a colourable imitation of the

plaintiff‟s short story. However, the defendants were not aware of the existence of the

plaintiff‟s short story; or that it was the subject of Copyright, and thus, sought to rely on the

defence of innocent infringement. In denying this defence, the Court stated that the

defendants did not prove that they were not aware and had no reasonable ground for

suspecting that Copyright subsisted in the work, but only that they had the authority of S,

who they believed to be the owner of the Copyright.

In the Nigerian case of Plateau Publishing Co. Ltd. v Adophy,

873

the original plaintiff sued

the defendants alleging that he had authored the work, subject matter of the suit, and sent it to

the defendants who are the publishers of the „Standard Newspaper‟ for publication. The

defendants actually published the article in their Newspaper bearing another author‟s name

and under a different title. In dismissing the defence of innocent infringement relied upon by

the defendants, the Supreme Court of Nigeria held that innocence is no defence to an action

for infringement of Copyright; or for the conversion or detention of an infringing copy or a

plate. It further restated that for the defendants to succeed in the plea, they must prove that at

the time of the infringement, they were not aware and had no reasonable grounds for

suspecting that Copyright subsisted in the work in question.

There is no gain saying that ignorance of the law is not an excuse. Therefore, Copyright

protection cannot be violated by anyone whether he is educated or not, or whether he has

872

[1936] 1 K.B. p.715.

873

[1986] 4 NWLR. (Pt.34) p.295.

211

reasonable knowledge or not.

874

This is because, infringement is grossly perpetrated by

publishers and publishing companies who are vast in the business of publishing and who

know what infringement is all about. Before publishing a work, they ought to make

reasonable enquires. Thus, the plea of innocent infringement ought not to be available to

them, as they are likely to abuse it by deceit, fraudulent, and misrepresentation. These

defences are unreasonable and constitute escape routes for infringers. It is therefore suggested

that the defence of innocent infringement be expunged from the Act through immediate

amendment.

4.15 Technical Enforcement

As a result of the emergence of advanced digital technologies in the 20

th

and 21

st

centuries,

there emerged enhanced modes of easy Copyright violation through the process of

Digitization which connotes the conversion of works to a format in which they can be read by

a machine.

875

This digitalization is basically the ability to record works in a binary format in

which they are stored and transmitted.

876

Digitization has impact not only on the format of

work, but also on their use and distribution.

877

In the analogue world, works are created and

distributed in material forms, such as books or paintings. These works were scriptable to the

human senses.

878

In contrast, digital works have been dematerialized into electric or digital

format which are no longer contained in the traditional material formats.

879

Although the

digital format of works can be read or understood only by technologies such as computers, it

can be readily translated into impulses susceptible by human eyes, ear and mind.

880

874

Nigeria Copyright Commission v Vitalis Ikukuoha 6 I.P.L.R. p.59.

875

B Iftikhar, „Technological Protection Measures Under Copyright Law‟, International Journal of Emerging

Trends & Technology in Computer Science (ITETICS), Volume 2, Issue 2, March-April 2013, p.319.

876

Ibid.

877

Ibid.

878

Ibid.

879

Ibid.

880

Ibid.

212

Moreover, an existing analogue work can be converted into a digital data object.

881

It is also

very popular to create new works in the digital format because doing so is convenient and

inexpensive.

882

The conversion from analogue to digital not only revolutionized the ways in

which works are created but also the ways in which works can be used. This development

poses challenges to the management of Copyright in the digital environment as a result of

which

right owners have developed, and are still developing technological measures aimed at

protecting their materials/works against unauthorized use. Since digital technology can be

used to trace/monitor and control the production and dissemination of works, it can also be

successfully employed to protect Copyright works.

883

It is true that whilst Copyright Law can

be applied only after infringement had occurred, as it does not work prospectively,

technological protective measures work prospectively so as to effectively prevent

infringement. Also, while Copyright law provides authors merely with the rights to control

the use of their Copyright works, technological protection measures enable authors to

exercise factual control over what users can do with their works.

884

These technological

measures can be intergraded in softwares or built into the hardware.

885

Such technological

measures may for instance, involve the insertion of identification signals in digital

recordings; or technical devices which prevent copying or recording, either at all, or on more

than a specified number of occasions.

886

The underlying factor of these measures is to

exercise copy control to the use of the copyrighted work. This development gave rise to the

emergence of Digital Rights Management

887

through which publishers and right owners

881

Ibid.

882

Ibid.

883

Ibid.

884

Ibid.

885

Ibid.

886

Ibid.

887

Hereinafter referred to as „DRM‟.

213

check violations by the use of technological devices such as encryption and digital

watermarking. These techniques shall be fully discussed below.

4.15.1 Digital Watermarking

Digital watermarking is a promising technology employed by various digital right

management systems to achieve rights management.

888

It supports Copyright information

such as the owners identity transaction dates, and serial numbers to be embedded as

unperceivable signals into digital contents.

889

The signals embedded can be perceivable or

insignificant to humans.

890

The concept of visible watermarking is very simple; it is

analogous to stamping a mark on paper.

891

An example of visible watermarking is as seen in

television channels when their logos are visibly superimposed in the corner of the television

screen. On the other hand, invisible watermarking is a more complex concept

892

which is

most often used to identify Copyright data such as author, distributor, etc.

893

Invisible

Watermarking is imperceptible under normal viewing conditions. It is a branch of the

growing discipline of „data hiding‟ or stereography multimedia objects.

894

Sounds and images

inevitably contain bits which may be altered unnoticed, and this can be exploited in different

ways to encode external information.

895

Watermarking systems generally involves two processes, that is to say, watermarking

embedding, and watermarking decoding. With the help of an encoder, the watermark is

888

Kuma et al, „Staffing Scheme for Copyright Protection in Multimedia‟, International Journal of

Network Security & Its Applications (IJNSA), Vol. 3. No.2, March 2011, p.135.

889

Ibid.

890

Ibid.

891

Ibid.

892

Ibid.

893

Ibid.

894

Emilija Arsenora, „A Guide to Digital Right Management‟, http://www.dcita.gov.au/drm/1976/html.

accessed 15/06/2016.

895

P Tang, „The Use of Copyright as a Major Innovation: Software Applications in the Digital

Age‟ in Adams, J, ed. Intellectual Property Quarterly, Vol. 1. (1197), p.22.

214

applied to the original media signal.

896

First, a list of data elements is selected from the

original media signal that will be modified during the encoding of the watermark. The

watermark consist of noise-like signals, which are generated by pseudo-randomly based

secret keys.

897

The same key is required for the watermark decoding process where a

decoder checks the possibly attacked content from the presence of the watermark.

898

To

achieve these results, there are some techniques employed by Watermarking.. For

instance, in Spatial Domain Technique, watermarks are constructed in the image spatial

domain, and embedded directly in an image pixel data.

899

Many Spatial Techniques are

based on adding fixed amplitudes pseudo noise sequences to an image.

900

One of the

techniques used in the spatial domain is the LSB modification. This method encodes a

signal in the list significant bits.

901

This technique can easily be applied to allow an image

to be broken up into different frequency bands, making it much easier to embed

watermarking information into the middle frequency bands of the image.

902

Similarly, in

Fractal Domain Technique, similar patterns are identified in an image and only a limited

amount of binary code can be embedded using this method.

903

Again, to embed a watermark Transform Domain Technique, a mathematical transformation

is first applied to the lost data.

904

Then modifications are made to the transform coefficients

by the watermark.

905

The inverse transform is finally applied to obtain watermarked image.

906

The wavelet domain provides good space-frequently localization for analyzing image features

896

Ibid.

897

Ibid.

898

Ibid.

899

Ibid.

900

Taskovskis.et al, „Digital Watermarking in WaveletDomain‟, http://www.firstmonday,org/issues/issue

811/may/#m4. accessed10/10/17.

901

Ibid.

902

Ibid.

903

Ibid.

904

Ibid.

905

Ibid.

906

Ibid.

215

such as edges or textured areas.

907

To a large extent, these features are represented by the

large coefficients in the detail sub bands at various resolutions.

908

With respect to DCT-

Based Watermarking Technique, the Discrete Cosine Transform allows an image to be

broken up into different frequency bands, making it much easier to embed watermarking

information in the middle frequency bands of the image.

909

The middle frequency bands are

chosen such that they avoid the most visual important parts of the image without over

exposing themselves to removal through compression and noise attacks.

910

On the other

hand, the Feature Domain Technique involves the application of watermarking on the entire

image domain.

911

Apart from the above discussed watermarking techniques, there are other species of

watermarks such as Stir Mark. This form of watermark is a generic tool for basic robustness

testing image watermarking algorithms.

912

It applies a minor unnoticeable generic distortion;

the image is lightly stretched, sheared, shifted, bent and rotated by an unnoticeable random

amount; then, a slight random low frequency deviation, which is greatest at the centre of the

picture, is applied to each pixel.

913

However, these techniques will not form part of this work

for want of time and space.

4.15.2 Functions of Digital Watermarking

It has been firmly established that Digital Watermarking Techniques are widely used to

curb Copyright infringement in industries in the following ways discussed below.

907

Ibid.

908

Ibid.

909

Ibid.

910

Ibid.

911

L Chun-shien, „Multimedia security; Steganography and Digital Watermarking Techniques for

Protection of Intellectual Property: Computer Forensics, Cybercrime and Steganography Resources‟.

http://www.forensics.nl/digitial-water-marking.htm. accessed on 10/10/2017.

912

Taskovskis.et al, „Digital Watermarking in WaveletDomain‟ Op.Cit.

913

Ibid.

216

(a) Proof of Ownership: Multimedia owners often use watermarking techniques to

identify Copyright ownership.

914

If a person creates an image and puts same on website

with a Copyright notice, such work can be stolen or the Copyright notice replaced by

infringers with the help of an image processing program.

915

Infringers may claim

ownership of the work in their own names. Such theft will not be possible if the Copyright

owner used watermark on the work. In the absence of the watermark, the creator may not

prove ownership of the work if he has no negative to present.

(b)Broadcast Monitoring: Authors of works, such as musicians, actors, broadcasting

firms, advertisers and other Copyright Owners who are anxious to protect their works

from ferocious infringers. They make use of watermarks for broadcast monitoring. This is

achieved by putting a unique watermark in sound or video clip prior to broadcast.

916

Automated monitoring stations can then be used to recover broadcasts and search for these

watermarks and identify where and when each clip appears.

917

(c)Transactional Watermarks: Right owners place watermark in all copies of protected

works.

918

However, electronic distribution of content allows each copy distributed to be

customized for each recipient.

This is achieved by the embedding of a unique watermark

in each individual copy. Transactional watermarks also called fingerprints allow a content

owner or content distributor to identify a source of an illegal copy. This technique serves

to prevent illegal use and as a technological aid to investigation.

919

It is mostly applied in

the movie industries due to the fact that in the process of movie making and dailies, the

result of each day‟s photography is usually distributed to a good number of people who

914

M Kutter, et al.‘Towards Second Generation Watermarking Scheme‟. http://www.dashes.

com/anvil/stuff/ docforow-drm-ms.html.A\accessed 01/04/, 2017.

915

Ibid.

916

Ibid.

917

Ibid.

918

Ibid.

919

Ibid.

217

are involved in the movie production. These dailies are highly confidential, yet

occasionally leaked to press. Immediately such leakage occurs, studios would quickly try

to identify the source of the leakage if each copy of the daily contains a unique

Transactional Watermark that identifies the recipient.

920

(d) Owner Identification:

It was stated earlier in this work that although Copyright Notice is no longer necessary to

guarantee Copyright, yet it is recommended. Copyright Notice on books is usually

exhibited in a work by putting the symbol „c‟, dates, and the name of the Copyright owner

placed in plain sight. In movies, it is appended at the end of the credits, while in pre-

recorded music, it is placed on the packaging. This process of Copyright notice can be

easily removed by infringers from protected material, or the packaging lost. Movies can

have credits cut off, and images can be spatially cropped. A digital watermark can be used

to provide complimentary Copyright making functionality because it becomes an integral

part of the content.

921

That is to say, the Copyright information is embedded in the music

to supplement the text notice printed on the packaging such that when the detector finds a

watermark, it contacts a central database to identify the watermarks owner.

922

(e) Filtering/Classification: Digital watermarks enable contents to be identified,

classified and filtered. Therefore, systems are enabled to selectively filter potentially

inappropriate contents such as corporations and parents restricting viewing of

pornographic or other objectionable materials.

923

The digital watermark carries the

classification codes, or identifies the content and links to a remote database with the

classification code.

924

This technique is applicable to images, audios and videos.

920

Ibid.

921

Ibid.

922

Ibid.

923

Ibid.

924

Ibid.

218

(f)Authentication: As both still and video cameras increasingly embrace digital

technology, the ability for undetectable tampering also increases.

925

The content of digital

photographs can easily be altered in such a way that it is very difficult to detect what has

been changed, especially in cases where there is no original negative to examine as

required in legal cases and medical imaging.

926

But if digital watermarks are used on the

image, it eliminates the problem of ensuring that the signatures stay with the image. It also

opens up the possibility to learn more about what tampering had occurred, since any

changes made to the image will also be made to the watermark.

927

4.15.3 Encryption

Encryption is the technology that supports the Electronic Document Management and

Control. Digital Rights Management uses a cryptographic algorithm to encrypt content that

needs a secret key, a particular phrase, or string of numbers.

928

It is only the holder of this key

that can unlock the content and read it. Decryption is the process of decoding data that has

been encrypted into a secret format.

929

This process requires a secret key or password.

However, encrypting the content is merely one of the important aspects of securing the

data.

930

Another most, important aspect is managing the description key. The creation of the

„key‟, its transfer to customers, ways of enforcing time limitations, e.g. making the software

license valid for only three months, and preventing theft or transfer of a key, are the

properties of the encryption that have to be considered at all times.

931

As shall be discussed

925

Henry,M.Image „Watermarking Hidden Bits:A Survey of Techniques For Digital Watermarking‟,

http://www.vu.union.edu/shoemakc/watermarking/html. accessed 12/04/2016.

926

Ibid.

927

Ibid.

928

Ibid.

929

Ibid.

930

Ibid.

931

Ibid.

219

below, there are two major types of encryption namely; asymmetric encryption, also known

as public-key encryption, and symmetric encryption also known as secret-key encryption .

932

(a). Asymmetric Encryption: This type of encryption gives each person a pair of keys, ie, a

public and a private key.

933

Each person‟s public key is kept secret. Messages are encrypted

using the intended recipient‟s public key and can any be decrypted using his private key.

934

This method eliminates the need for the sender and receiver to share secret information, ie,

keys with a secure channel.

935

All communications use only public keys, and no private keys

is ever transmitted or shared. To implement public-key encryption on a large scale, a digital

certificate is required.

936

A digital certificate is basically a bit of information that says that the

web server is trusted by an independent source known as a digital authority.

937

The certificate

authority acts as a middleman that computers trust, and confirms that each computer is in fact

who it says it is; and then provides the public keys of each computer to the other.

938

(b). Symmetric Encryption: One of the simplest forms of encryption uses a symmetrical key

and is essential for protecting data.

939

Generally, it uses the same key for password to encrypt

and decrypt data and is sometimes referred to as secret–key encryption. This type of

technology is used to encrypt everything, ie, from an entire hard drive to an individual file.

940

Once a file is encrypted, it can be sent or stored in the cloud; but a cloud provider would not

have access to the data without having access to the original key.

941

The advantage of this

form of encryption is that it is fast and can be used to encrypt large volumes of static data.

932

Ibid.

933

Ibid.

934

Ibid.

935

Ibid.

936

Ibid.

937

Ibid.

938

Ibid.

939

Ibid.

940

Ibid.

941

Ibid.

220

4.15.4 Other Enforcement Measures

Apart from the above discussed technical protection measures, there are other protection

measures employed in the enforcement of Copyright. For instance, the Hologram Stamps are

used to enforce the protection of Copyright especially as it relates to sound recordings and

cinematograph films intended or offered for sale, rental, hiring, lending or otherwise

distributed to the public for commercial purposes.

942

In Nigeria for instance, the law requires

that holograms, which shall be a tamper sticker designed by the Nigerian Copyright

Commission, shall be affixed on works produced in Nigeria at the point of production; and in

the case of works imported into Nigeria, except where such works are for domestic use,

before they are released into the channel of commerce.

943

It is also required that the hologram

shall be affixed to every cassette, disc or other medium in which the sound recording or film

is embodied, in such a manner as to make the hologram visible to prospective purchasers.

944

It is submitted that the use of holograms in the enforcement of Copyright has not yielded

much fruits. This is because its use is restricted to sound recordings and cinematograph films.

Besides, adulterated holograms are as rampant as infringing copies of works without any

effort on the part of the Nigerian Commission to combat same or at least, educating the

masses, who are predominantly illiterates and semi-illiterates; and who may not even know

anything about holograms, on the concept of Copyright enforcement through the use of

holograms. It is therefore suggested that the Nigerian Copyright Commission should

handover the enforcement of Copyright through the use of holograms to the Nigerian Police

who are closer to the grass roots, to commence investigations and prosecution of offenders

under the law.

942

943

Ibid. Section 2 (1).

944

Ibid. Subsection (2).

221

It must be pointed out that these technical enforcement mechanisms discussed above can only

be validly applied with the requisite legal backing and of course the technological know-how.

It is unfortunate that the Nigerian situation is bereft of both. It cannot therefore be gainsaid

that there is a serious need for positive efforts for Nigeria to join the legion of developed

countries in making use of the above discussed mechanisms.

4.16 Impact of Copyright Enforcement on Access to Information

There is no gain saying that the enforcement of Copyright has become one of the most

important imperatives for developed and developing nations alike. This is because the

primary purpose of Copyright is to promote public welfare by the advancement of knowledge

with the specific intent of encouraging the production and distribution of new works for

public use. It provides incentives for creators by granting them the exclusive rights to

produce and distribute their works, and in so doing, reap the fruits of their labour. It has been

held in Gero v Seven-Up Company that the goal of Copyright protection is to encourage

dissemination of ideas by protecting the embodiment of expression of an idea in a creative

work and reserving the right in it to the creator of the work.

945

Thus, without Copyright laws,

there will be no creativity and dissemination of knowledge and information. This fact was

vividly illustrated by Larson thus:

946

Just a few years ago, India was losing a battle to retain the best and

brightest of its engineers and computer scientists. The lack of an

effective Copyright law forced those scientists and technicians to

emigrate to countries where their hard work could be protected and

kept safe from unfair exploitation by competitors seeking easy

advantages. The Indian Parliament finally passed a Copyright law to

protect the hard work and creativity of its computer scientists. The

result: a burgeoning high tech industry producing some of the

world‟s most advanced software and employing thousands of

workers who might otherwise have left India for greener pastures in

other parts of the world.

945

215 USPQ, p.512.

946

P Larson, quoted by M Ozioko, „Copyright Provisions Impacting on Access to knowledge: A Comparative

Analysis‟, UNIZIK Law Journal, Vol. 7 No. 1 2010. p.61.

222

However, the digitization of information in the 20

th

and 21

st

centuries has created more access

to Copyrightable works to the detriment of the right owners.

The application of this

technology gives rise to a wide range of possibilities hitherto achievable in the information

and technological sector with very vast implications for the Copyright regime.

947

It has been

observed that one of the main characteristics of digital exploitation of works is that it is not

limited to one single national territory but in many cases crosses borders.

948

Cate aptly

observed that:

949

Digital information not only ignores national borders, but also those of

states, territories and even individual institutions... governments are

finding it increasingly difficult, and in some cases impossible to regulate

information effectively, at the very time that the economic power of

information is increasing the political pressure for them to do so. The

globalization of information may be rendering the traditional concept of

sovereignty of the nation states obsolete.

The above development indicated a compelling need for an improvement on the existing

legal rules relating to Copyright enforcement. This fostered the development of the Digital

Rights Management system and technological measures which gradually enabled right

holders to physically control access and use of their works within the legal framework of

Copyright laws.

This is mainly through the use of encryption and watermarking techniques to

protect data and other digital multimedia as discussed in this chapter of this work.

950

This is

backed up by the provisions prohibiting the circumvention of anti piracy devices contained in

the Copyright laws of the jurisdictions under consideration. Nonetheless, whilst the rationale

for effective Copyright enforcement cannot be debated, the damage of legitimating over

restrictive Copyrights management systems and criminalizing those who circumvent them

has triggered criticism of expanding the protectability of works at the expense of research and

947

M Ozioko, „Emergence of Digital Technology: Implication for Copyright Protection' UNIZIK

Law Journal, Vol 5 No. 1 2005. p.265.

948

ACLU v RENO 354. 217 F. 3d p.162 (3d circle 2000).

949

F Cate: "Introduction: Sovereignty and the globalization of intellectual property" Indiana.

Journal of Global Legal Studies. Vol. 6. No. 1at<http://ijgls.indiana. at<http://ijgls

Edu/archive/06/01/cate.shtml> accessed 30/09/2005.

950

M Ozioko, „Emergence of Digital Technology: Implication for Copyright Protection' Op.Cit. p.265.

223

education.

951

Finding the right balance between sufficient incentives for creativity on the one

hand, and the promotion of knowledge and information on the other hand, will go a long way

in promoting creativity.

It is submitted that the enforcement of Copyright in Nigeria is restrictive of public interest of

access to work. This is as a result of the over restrictive nature of the enforcement

mechanisms operating in Nigeria, especially in relation to technological protective measures

in this digital era where education and science are internet/based. Unfortunately, the passage

of the Cybercrimes Act in 2015 did not solve this problem.

952

It is therefore suggested that

the Copyright Act of Nigeria be urgently amended to allow for fair use of digital

media/works. This will go a long way in balancing interests of authors and those of the

general public; and at the same time, promote creativity.

In line with the Berne Convention and other Treaties/Instruments on copyright, most states of

the world have domesticated the provisions prohibiting circumvention of technological

protection measures. For instance, the Nigerian Act confers on the Nigerian Copyright

Commission, the authority to prescribe any design, label, mark, impression or any other anti-

piracy device for use on, in, or in connection with any work in which copyright subsists. The

Commission shall exercise these powers with the consent of the Minister charged with the

responsibility for Culture. The Act also prohibits the selling, renting or offering for sale, rent

or hire, any work in contravention of the prescription made under the Act. It makes such acts

offences punishable on conviction with an imprisonment for a term not exceeding twelve

months, or both fine and imprisonment. The Act further prohibits the importation into

Nigeria, or being in possession of any anti-piracy device, or any machine, instrument or other

contrivance intended for use in the production of the anti-piracy device. The Act renders such

951

Ibid.

952

Cybercrimes [Prohibition, Prevention, etc] Act, 2015.

224

a liable upon conviction to a fine not exceeding Five Hundred Thousand Naira or

imprisonment for a term not exceeding five years, or to both such fine or imprisonment. The

Act also bars any person from being in possession of, or reproducing or counterfeiting any

anti-piracy device without the consent of the Nigerian Copyright Commission and renders

such an offender upon the consent of the Nigerian Copyright Commission and renders such

an offender upon conviction to a fine of Fifty Thousand Naira or a term of imprisonment not

exceeding five years, or to both such fine and imprisonment.

225

CHAPTER FIVE

5.0 A SURVEY OF COPYRIGHT PROTECTION AND ACCESS TO INFORMATION

IN SELECTED COUNTRIES

5.1 Exceptions to Copyright Control

In order to protect the interest of the public, the Copyright Acts of England, India and the

United States provide for exceptions to Copyright control relatively similar to those provided

by the Nigerian Act discussed in this last chapter. A comparative analysis of these exceptions,

together with the other provisions on the exceptions to Copyright control earlier discussed

under the last preceding chapter shall be broken down and discussed below for purposes of

convenience in relation to the English, Indian and U.S. Copyright Acts.

5.2 Fair Dealings

The Indian,

953

United States

954

and English Acts

955

provide for fair use exemptions

substantially in the same form and manner discussed in the last chapter.

However, the United

States and the English Acts contain more elaborate guiding provisions on fair use

exemptions.

956

The United States Act provides that in determining whether the use made of a

work in any particular case amounts to fair use, the factors to be considered shall include:

957

(a) the purpose and character of the use, including whether such use

is of a commercial nature or is for nonprofit educational

purposes;

(b) the nature of the copyrighted work;

(c) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

(d) the effect of the use upon the potential market for, or value of the

Copyright work.

953

C.R.A.I. Section 52.

954

U.S.C. Section 107.

955

C.D.P.A. sections 28-30.

956

U.S.C. Section 107; C.D.P.A. Section 30.

957

U.S.C. Section 107.

226

On the other hand, the English Act provides that:

958

fair dealing with a work for the purpose of criticism or review of that or

another work or of a performance of a work, does not infringe any

Copyright in the work provided that it is accompanied by a sufficient

acknowledgment (unless this would be impossible for reasons of

practicality or otherwise) and provided that the work has been made

available to the public.

The Act further provides that:

959

Copyright is not infringed by the use of a quotation from the work

(whether for criticism or review or otherwise) provided that:-

(a) the work has been made available to the public;

(b) the use of the quotation is fair dealing with the work;

(c) the extent of the quotation is no more than is required by

the specific purpose for which it is used; and

(d) the quotation is accompanied by a sufficient acknowledgement

(unless this would be impossible for reason of practicality or

otherwise).

It is submitted that the Nigerian and English Acts share common similarities except that the

later is more elaborate and precise. For while the Nigerian Act provides that copying of a

work on grounds of fair dealing is only allowed if the work is to be used for research, private

use, criticism or review, or for the reporting of current events, on the condition that if the use

is public, it shall be accompanied by an acknowledgement of the title of the work and its

authorship; except where the work is incidentally included in a broadcast.

960

The Act requires

for the inclusion of acknowledgement only when the work is for public use which is not a

requirement under the English Act. On the other hand, the English Act allows for the use of

work on grounds of fair dealing for purposes other than the purposes of criticism or review of

not only the work copied, but for another work or a performance of a work.

961

Again, even

though the English Act mandates that acknowledgement of the author be made, it does not

specify the nature of the acknowledgement quite unlike the Nigerian Act which expressly

958

C.D.P.A. Section 30.

959

Ibid. Subsection (1ZA).

960

C.R.A.N. Paragraph (a) of the Second Schedule.

961

C.D.P.A. Section 30 (1).

227

requires for both the acknowledgement of the title of the work and its authorship. The English

Act only requires that such original work should have been made available to public quite

unlike the Nigerian Act which has no such requirement. It should be noted that under the

English Act, a work is made available to the public if it has been made available by any

means, including the issuance of copies to the public; making the work available by means of

an electronic retrieval system; the rental or lending of copies of the work to the public; the

performance, exhibition, playing or showing of the work in public; the communication to the

public of the work.

962

Thus, if the work is already published, it is substantially known to the

public and requires no strict form of acknowledgement as required under the Nigerian Act.

In determining generally whether a work has been made available to the public, no account

shall be taken of any unauthorized act.

963

So, where a work is stolen by any means and made

available to the public, it does not fall within the section of the Act under consideration.

Thus, the criticism and review of a work already in public domain which would otherwise

constitute fair dealing would seldom, if ever, be rendered unfair because of the method by

which the Copyright material was obtained.

964

Another striking discrepancy between the two Acts is the fact that unlike the English Act, the

Nigeria Act requires for acknowledgement only when the work is to be used in public. It does

not require that the work be made public before copying as is required by the former Act.

Thus, in Nigeria, one is free to copy unpublished works unlike the requirement under the

English Act where such copying would otherwise amount to an infringement of Copyright.

Again, under the Nigerian Act, once there is an acknowledgement in works copied for

purposes of research, private use, criticism or review or the reporting of current events, plea

962

C.R.A.N. Paragraph (a) of the Second Schedule.

963

C.D.P.A. Section 30 (1).

964

Ibid. Section 30 (IA).

228

of fair dealing will be upheld.

965

Under the English Act, no acknowledgement is required in

connection with the reporting of current events by means of a sound recording, film or

broadcast where this would be impossible for reason of practicality or otherwise.

966

It is submitted that while the relevant section of the English Act

967

is commendable on the

grounds that no form of contract should be allowed to overtake any law validly made by a

competent Legislature of a Nation, the other arm of this section is criticized as encouraging

violation of Copyright and as destroying the whole essence of creativity.

968

Once a work is

copied without any form of acknowledgement, no matter the reason adduced for such failure,

the creator is robbed of his hard earned creativity. In the light of this, it is suggested that the

English Act should be urgently amended to streamline the wide latitude granted to lazy

copiers in the name of fair dealings.

It is noted that since the Indian Act‟s provisions on this exemptions to Copyright control are

virtually in the same manner they are captured in the Nigerian and English Acts.

969

Hence,

there is no need to further consider this Act.

5.3 Parody, Pastiche and Caricature.

Fair dealing with a work for the purpose of caricature, parody or pastiche does not infringe

Copyright in the work.

970

It is observed that the requirements of the Nigerian and English

Acts are the same except that while the Nigerian Act does not expressly make provision for

the nullification of any term of contract made by parties to exclude the application of this

exception, the English Act does, as it provides that no form of contractual/agreement can oust

965

Ibid. Proviso to subsection (IA) of section 30.

966

Ibid. Subsection (3).

967

Ibid. Subsection (3).

968

Ibid. Subsection (2).

969

C.R.A.I. Sections 52 &52A.

970

C.D.P.A. Section 30A (i); C.R.AN. Paragraph (b) to the Second Schedule.

229

the use of a work on grounds of fair dealing in the form of caricature, parody or pastiche.

971

In the same vein, both Acts made provisions for the acknowledgement of the original

authorship under fair dealing provisions.

972

It is submitted that these provisions of the English

Act are good enough not to be distributed. Any such disturbance may lead to a distortion of

meanings and rights of Copyrights owners. It is rather disappointing that both the Indian and

U.S. Acts contain no express provision relating to the exception under discussion; though the

Courts of these countries recognize and enforce this exception.

973

It is therefore suggested

that the Indian and U.S. Copyright Acts be amended along the line of the English Act

discussed above. It is also suggested that the Nigerian Act be amended to incorporate the

aforediscussed noble provisions of the English Act.

5.4 Inclusion in Films or Broadcasts of Works Viewable by the Public

It is noted that the Indian Act contains provisions similar to those of the Nigerian Act relating

to the exemption on the inclusion in a film or broadcast of a work that is viewable by the

public from Copyright control.

974

It is however observed that while the Nigerian and Indian

Acts talk about the inclusion in a film or a broadcast of an artistic work situated in a public

place, while the English Act talks about the incidental inclusion in an artistic work, sound

recording, film and broadcast. This makes the provisions of the English Act broader in scope

and application. The English Act does not contemplate any condition of permanency of such

artistic work unlike the requirement of permanency under the Nigerian Act. Moreso, there is

no express provision requiring that such works be kept in a place to be viewed by the public.

It is therefore suggested that Nigerian and Indian Acts be amended to the effect that the

works under consideration be placed permanently in a place where it can be viewed by the

971

C.D.P.A. Section 30A.

972

C.R.A.N. Paragraph (a) of the Second Schedule ; C.D.P.A. Section 30 (1).

973

Original Appalachian Artworks Inc. v Topps Chewing Gum Inc. 642 F. Supp. p.1031 (U.S. Dist.1986).

974

C.R.A.N. Paragraph (a) of the Second Schedule ;

230

public for at least, a reasonable period of about one calendar year prior to the use of such

scenery.

It is most surprising that the U.S. Act does not provide for the exemption under discussion.

This omission will obviously work hardship against Copyright enforcement. It is therefore

suggested that the U.S. Act be amended to incorporate the suggestions preferred above in

relation to the Nigerian and English Acts.

5.5 Incidental Inclusion of an Artistic Work in a Film or Broadcast

As discussed in chapter four of this research work, the Nigerian Act legalizes the incidental

inclusion of an artistic work in a film or broadcast similar to such provision made by the

Indian and English Acts.

975

`It is however observed that the U.S. Act does not contain the

exemption under discussion. It is submitted that this omission is anti Copyright. It is

suggested that this Act be amended along the line of the Nigerian Act.

5.6 Use of Work for Educational Purposes

The Acts under consideration contain special exceptions for certain uses of works for

educational and instructional in purposes. For instance, the English Act provides that fair

dealing with a work for the sole purpose of illustration for instruction does not infringe

Copyright in the work provided that the dealing is:

976

(a) for a non-commercial purpose;

(b) by a person giving or receiving instruction (or preparing for giving or

receiving instruction); and

(c) accompanied by a sufficient acknowledgment (unless this would be

impossible for reasons of practicability or otherwise).

The Acts under consideration contain provisions similar to those of the English Acts

duplicated above. However, while the Indian Act allows this exemption only if the use of

975

C.R.A.N. Paragraph (e), C.R.A.I. Section 52 (u), C.D.P.A.I. Section 31 (1).

976

C.D.P.A. Section 33 (1) (a) & (b).

231

such work is private, the U.S. Act does not contain such condition precedent.

977

Again, while

the Nigerian Act requires for the proper acknowledgement of the authorship and a statement

that the work created is for educational use, the English Act requires that such work must be

for educational use and must be for non-commercial purposes. However, unlike the Nigerian

Act, the requirement of authorship acknowledgement by the English Act is permissive. Thus,

acknowledgement can be dispensed with where it will not be possible to do so by reason of

practicability. This Act does not mandate the quantity or length of excerpts to be taken from

the work quite unlike the Nigerian Acts. On the other hand, the Nigerian Act does not state

whether the work for educational purpose can be for non-commercial purpose as expressly

required by the English Act. It does not also state what will amounts to educational

purpose/use. Furthermore, the English Act protects a work on grounds of fair use by a person

giving or receiving instruction, or preparing for giving or receiving instruction and defines

this to include „setting examination questions, communicating the questions to pupils and

answering the questions‟.

978

It went ahead to state that no contractual term which purports to

prevent or restrict the doing of any act which, by virtue of this section would not infringe

Copyright, that terms is unenforceable.

979

This clearly shows that any copying of a work such

as examination questions from another question paper for purpose of answering question is

exempted for purposes of fair use if such copying is not verbatim and if the work is not for a

commercial purpose. It is noted that while the Indian Act allows this exception only if the use

is private; the U.S. Act does not require so.

980

It is suggested that Nigerian U.S. and the

Indian Acts be amended urgently to fall in tandem with the more elaborate and explicit

English Act.

977

U.S.C. Section 107; C.R.A.I. Section 52 (1).

978

C.D.P.A. Section 33 (2).

979

Ibid. subsection (3).

980

U.S.C. Section 107; C.R.A.I. Proviso to section 52 (i).

980

C.R.A.N. Paragraph (f) of the Second Schedule.

232

It is noted that the English Act also provides for the protection of anthologies for educational

use similar to the laudable provisions made in the Nigerian Act.

981

According to the English

Act, the inclusion of a short passage from a published literary or dramatic work in a

collection which is intended for use in educational establishments and is so described in its

title and in any advertisements issued by or on behalf of the publisher and consists mainly of

materials which no Copyright subsists, does not infringe the Copyright in the work if the

work itself is intended for use in such establishment and the inclusion is accompanied by

sufficient acknowledgement.

982

However, the Act does not authorize the inclusion of more

than two excerpts from Copyright works by the same publisher over a period of five years.

983

The only difference between the two Acts is that while the Nigerian Act requires a statement

that the work is designed for educational use, the English Act requires that such work must be

intended for use in educational establishments; and that the work must be so described in its

title; and in any advertisements issued by or on behalf of the publisher.

984

What this means is

that for the use of such work to fall under fair dealings, it must be used in an educational

establishment like schools approved by the appropriate Ministry of Education. Again, such

work must not be used in an establishment where the original works is used. This is also the

position of the Indian and U.S. Acts.

985

With respect to the exemption on the use of work in Educational Institutions for educational

purposes as contained under the Nigerian Act,

986

the position of the Indian and English Acts

are the same except that the provision for the destruction of such work contained in the

Nigerian Act is absent in the former Acts.

987

There is nothing in these latter Acts that

suggests that the approved use must be by the Institution itself. It is also apparent that this

981

U.S.C. Section 107; C.R.A.I. Proviso to section 52 (i).

982

C.D.P.A. Section 33 (1) (a) and (b).

983

Ibid. Section (2).

984

Ibid. Subsection (1) (a).

985

C.R.A.I. Section 52 (i); U.S.C. Section 107

986

C.R.A.N. Paragraph (h) of the Second Schedule.

987

C.D.P.A. Section 33 (1).

233

exception applies to all categories of works. It is however suggested that the U.S and the

Indian Acts be amended to include the requirement of proper acknowledgement as provided

by the English Act.

It must be pointed out that the English Act contains a specific provision for the protection of

certain performances that forms part of the activities of educational establishments which the

other Acts do not provide. It provides that:

988

the performance of a literary, dramatic or musical work before an audience

consisting of teachers and pupils at an Educational Establishment and other

persons directly connected with the activities of the establishment; by a

teacher or pupil, in the course of the activities of establishment by any

person for the purpose of instruction, is not a public performance for the

purposes of infringement of Copyright.

The Act further stated that the playing or showing of a sound recording, film or broadcast

before such an audience at an educational establishment for the purposes of instruction is not

a playing or showing of the work in public for the purposes of infringement of Copyright.

989

The problem now is, who and who are contemplated to constitute the audience within the

meaning of this section? This answer is not farfetched for the Act provides that „a person is

not for this purpose directly connected with the activities of the educational establishment

simply because he is the parent of a pupil at the establishment‟

990

This simply means that any

showing of a sound recording, film or broadcast to an audience made up of more than the

pupils and staff of the educational institution for purposes of instruction and teaching is a

breach of the Copyright in the work. Such work must therefore be shown for instruction to

the audience contemplated by the Act. It is suggested that this particular provision which is

absent in the other Acts under consideration be incorporated therein through immediate

amendment.

988

Ibid. Section 34 (1) (a) & (b).

989

Ibid. Subsection (2).

990

Ibid. Section 34 (2).

234

With respect to the exemption on the use of approved educational broadcast as contained

under the Nigerian Act,

991

the English Act provides that

a recording of a broadcast, or a copy

of such a recording, may be made by or on behalf of an educational establishment for the

educational purposes of that establishment without infringing Copyright in the broadcast, or

in any work included in it, provided that:

992

(a) the educational purposes are non-commercial; and

(b) The recording or copy is accompanied by a sufficient

acknowledgement (unless this would be impossible for reasons of

practicality or otherwise).

Thus, the recording of a broadcast or a copy of such a recording made by anybody on behalf

of an Educational Institution with sufficient acknowledgement unless acknowledgement

would be impossible by reason of practicability, would not amount to infringement of the

work as long as such copy is made for non-commercial educational purposes. Such a copy

can then be communicated by or on behalf of the educational establishment to its pupils or

staff for non-commercial educational purposes of that establishment.

993

This applies to a

communication received outside the premises of the educational establishment if that

communication is made by means of a secure electronic network accessible only by the

establishment‟s pupils and staff.

994

However, such use will not be permitted if or to the extent

that, licenses are available authorizing the acts in question and the educational establishment

responsible for the acts knew or ought to have been aware of that fact.

995

If a copy made

under this section is subsequently dealt with, it is to be treated as an infringing copy for the

purpose of that dealing and if that dealing infringes Copyright, it is to be treated as infringing

copy for all subsequent purposes.

996

It must be noted that the phrase “dealt with” as used

991

C.R.A N. Paragraph (g) of the Second Schedule.

992

C.D.P.A. Section 35.

993

Ibid. Subsection (2).

994

Ibid. Subsection (3).

995

Ibid. Subsection (4).

996

Ibid. Subsection (5).

235

herein means sold or let for hire, offered or exposed for sale or hire, or communicated

otherwise than as permitted by the Act.

997

Similarly, the copying and using of extracts of works by educational establishments or on

their behalves does not infringe Copyright in the work provided that the copies are made for

purposes of instruction for a non commercial purpose and the copies are accompanied by

sufficient acknowledgement unless this would be impossible for reasons of practicality or

otherwise.

998

The conditions required for the enforcement of Copyright under this section are

similar to those in section 35 already discussed except that it provides that not more than five

percent of the work may be copied by or on behalf of an Educational Establishment in any

period of 12 months; and for these purposes, a work which incorporates another work is to be

treated as a single work.

999

Where licenses are available, the terms of a license granted to an

Educational Establishment authorizing acts permitted by this section are of no effect so far as

they purported to restrict the proportion of a work which may be copied, whether on payment

or free of charge, to less than that which would be permitted by this section.

1000

It is obvious that the provisions of the English Act on this exemption are far more elaborated

and vastly Explicit than the Nigerian Act. However, the Indian and U.S. Acts do not contain

this exemption. It is suggested that the Nigerian, Indian and U.S. Acts be urgently amended

to incorporate the aforementioned Copyright friendly provisions of the English Act. This will

make for clarity, precision, improved enforcement of Copyright and at the same time,

facilitate access to works.

997

Ibid. Section 36 (1).

998

Ibid. Subsection (6).

999

Ibid. Subsection (5).

1000

Ibid. Subsection (7).

236

5.7 Use for Literary Enjoyment and Documentation

The Nigerian Act‟s provision of the exemption on public reading or recitation of work

1001

is a

replica of the English Act‟s provision except that the latter includes published grammatical

work in the category of this exception.

1002

The English Act further protects the making of a

second recording or the communication to the public of a reading or recitation which by

virtue of the Act does not infringe Copyright in the work, provided that the recording or

communication to the public consists mainly of material in relation to which it is not

necessary to rely on the subsection.

1003

Again, where an article on a scientific or technical

subject is published in a periodical accompanied by an abstract, indicating the contents of the

article, it is not an infringement of Copyright in the abstract, or in the article to copy the

abstract or issue copies of it to the public.

1004

However, this does not apply if or to the extent

that there is a licensing scheme certified for the purpose of the Act relating to the grant of

licenses.

1005

This simply means that one can copy an article or its abstract published in a

periodical if the article is of a scientific or technical nature at a time where there is no

licensing scheme providing for the grant of license. There is no requirement for

acknowledgement under this section.

1006

It is submitted that the provisions of the English Act in this provisions of public reading and

recitation of protected works are wider in scope and more elaborated than the Nigerian Act;

the Indian Act which is virtually the same with the provisions of the latter Act; and the

provisions of the U.S. Act (which scantly provides for this exception).

1007

It is therefore

suggested that the Nigerian, Indian, and U.S. Acts be amended along the line of the English

Act.

1001

C.R.A.N. Paragraph (J) of the Second Schedule.

1002

C.D.P.A. Section 59 (1).

1003

Ibid. Subsection (2).

1004

Ibid. Section 60 (1).

1005

Ibid. Subsection (2).

1006

Ibid.

1007

U.S.C. Section 52 (g); C.R.A.I. Section 107.

237

With respect to the exemption on the use by Government Public Libraries and Non-

Documentation Centres as contained under the Nigerian Act,

1008

the English Act contains

more elaborate provisions regarding this exception than the Nigerian Act. According to the

English

Act, Copyright in a work of any description is not infringed by the lending, by a public

library in relation to a book within the Public Lending Right Scheme, that is, the lending of

books, audio-books and e-books.

1009

Again, the lending of copies of such work by a library or

archives other than public library which is not conducted for profit is allowed.

1010

Thus, the

Act allows libraries, achieve, museums, and educational establishments to communicate such

works to the public or to make it available to the public by means of a dedicated terminal on

its premises, upon the fulfillment of the conditions that the work or a copy of the work:

1011

(a) has been lawfully acquired by the institution;

(b) is communicated or made available to individual members of the

public for the purpose of research or private study; and

(c) is communicated or made available in compliance with any

purchase or licensing terms to which the work is subject.

It is observed that unlike the English Act, the provisions of the Nigerian, Indian and U.S.

Acts on this exception are narrow and unclear as to the extent and scope of this exception.

For example, the Indian Act states that this exception will have effect if the use is made sixty

years from the death of the author, or the last author in the case of joint authorship; such use

must be made by a Non-Commercial Public Library for the use of the Library if such book is

not available for sale in India.

1012

On the hand, the U.S. Act allows the reproduction by

Libraries and Archives of works made without any direct or indirect commercial advantages,

1008

C.R.A N. Paragraph (k) of the Second Schedule.

1009

C.D.P.A. Section 40A (1) & (A1).

1010

Ibid. Subsection (2).

1011

Ibid. Section 40B (1)(3).

1012

C.R.A.I. Section 52 (o).

238

so long as such Institution is open to researchers.

1013

All other requirement under this latter

Act is similar to those of the English Act. It is therefore suggested that the Nigerian, Indian

and U.S. Acts be amended along the line of the aforementioned Copyright friendly provisions

of the English Act.

With respect to the exemption on Archival use/ Library Copying as contained under the

Nigerian Act,

1014

the English Act has a provision similar to the aforementioned provisions of

the Nigerian Act. According to the latter Act, a librarian of any of the institutions mentioned

in the Act

1015

may make a single copy of the whole or part of a published work and supply it

to another library without infringing Copyright in the work; if such copy is supplied in

response to a request from a library which is not conducted for profit, and at the time of

making the copy, the librarian does not know or could not reasonably find out the name and

address of a person entitled to authorize the making of a copy of the work.

1016

The provisions

regarding the name and address of the Copyright owner do not apply where the request is for

a copy of an article in a periodical.

1017

Similarly, a librarian, archivist, or curator of a literary,

archive or museum may, without infringing Copyright, make a copy of an item of the

institution‟s permanent collection in order to preserve or replace the item in that collection;

or, where an item in the permanent collection of another library, archive or museum has been

lost, destroyed or damaged, in order to replace the item in the collection of that other library,

archive or museum.

1018

Such copying will be exempted only if the item is included in the part

of the collection kept wholly or mainly for the purpose of reference on the institution‟s

premises; or included in a part of the collection not accessible to the public; or the item is

1013

U.S.C. Section 108 (a).

1014

C.R.A.N. Section 15 (2)

1015

C.D.P.A. Section 40B (1).

1016

Ibid. Section 41 (1) & (2); section (2).

1017

Ibid. Subsection (3).

1018

Ibid. Section 42 (1) (a) & (b).

239

available on loan only to other libraries, archives or museum.

1019

It should be born in mind

that the ultimate condition to be met under this exception is that it is not reasonably

practicable to purchase a copy of the item to achieve either of the purposes mentioned in the

Act.

1020

The Act further empowers a librarian of a library which is not conducted for profit to

supply a single copy of one article in any one issue of a periodical; or a reasonable proportion

of any other published work, without infringing Copyright in the work.

1021

Such supply must

be in response to a request from a person who has provided the Librarian with a declaration

in writing, the information set out in the Act

1022

, to wit:

1023

(a) the name of the person who requires the copy and the

material which that person requires;

(b) a statement that the person has not previously been supplied

with a copy of that material by any library;

(c) a statement that the person requires the copy for the

purposes of research for a non commercial purpose or

private study, will use it only for those purposes and will not

supply the copy to any other person; and

(d) a statement that to the best of the person‟s knowledge, no

other person with whom the person works or studies has

made, or intends to make, at or about the same time as the

person‟s request, a request for substantially the same

purpose.

The English Act also empowers Librarians or Archivists to make and supply a single copy of

the whole or part of a work without infringing Copyright in the work to the same class of

person and under the same conditions stipulated under the Act.

1024

Furthermore, in all the

sections of the English Act considered, there are conditions that the sum charged by the

Librarian must be calculated by reference to the costs attributable to the production of the

1019

Ibid. Subsection (2) (a) - (c)

1020

Ibid. Subsection (3).

1021

Ibid. Section 42A (1).

1022

Ibid. Section 42 A (3).

1023

Ibid.

1024

Ibid. Section 43 (4).

240

copy.

1025

The Act invalidates any contractual terms in the contract that purports to prevent or

restrict the doing of any act which would not ordinarily infringe Copyright.

1026

Another striking difference between the English and Nigerian Acts is that while the Nigerian

Act requires for the making of the work by a person in charge of a public library for the use

of that library, the English Act empowers not only a Librarian, whether of a public or private

library, but an archivist or museum to make copies of such work not only for the use of that

particular library but for other libraries or for individuals. It is therefore submitted that the

scope of this exception under the English Act is too wide to accommodate abuses and

violations of Copyright. It is suggested that the English Act be amended to incorporate these

laudable provisions of the Nigerian Act. It is also suggested that the Indian and U.S. Acts

which do not contain this exception be amended along the line of the Nigerian Act.

It must be pointed out that the English Act has novel provisions which are not contained in

the other three Acts under consideration to the effect that Copyright is not infringed by the

copying of a work from the internet by a deposit library or person acting on its behalf if:

1027

(a) the work is of a description prescribed by regulations under

section 10 (5) of the 2003 Act;

(b) its publication on the internet, or a person publishing it there, is

connected with the United Kingdom in a manner so prescribed;

and

(c) the copying is done in accordance with any conditions so

prescribed.

The regulations mentioned in this section are as made by statutory instrument by the

Secretary of State pursuant to the Legal Deposit Libraries Act.

1028

The Act further provides

that if an article of cultural or historical importance or interest cannot lawfully be exported

1025

Ibid.

1026

Ibid. Sections 41 (5); Sections 42A (6).

1027

Ibid. Section 44A (1) (a) –(c).

1028

Ibid. Subsection (3).

241

from the United Kingdom unless a copy of it is made and deposited in an appropriate library

or archive, it is not an infringement of Copyright to make that copy.

It is submitted that this provision is public interest friendly. It is most surprising that the other

Acts under consideration have no equivalent of this provision of the English Act. It is

therefore suggested that these Acts be amended to incorporate these provisions of the English

Act. The proposed amendment will help improve the efficiency and efficacy of these Acts in

this digital millennium and to keep pace with the other technologically advanced countries of

the world.

With respect to the exemption on the reproduction of unpublished works as provided under

the Nigerian Act,

1029

the provisions of the English and Indian Acts are similar to this

exception under the Nigerian Act.

1030

Even though the English Act does not discuss

unpublished works in that section, it is boldly captioned „copying by librarians or archivists:

single copies of unpublished works‟ in the Act.

1031

However, the U.S. Act does not expressly

provide for this exception except that the Act exempts the use of works for teaching,

scholarship and research.

1032

This provision is however in line with the provisions of the

other Acts regarding this exception.

5.8 Reproduction on Braille

As the Nigerian Act, allows the reproduction of published works in Braille for the exclusive

use of the blind and sound recordings made by the institutions or other establishments

approved by the Government for the promotion of the welfare of other disabled persons for

the exclusive use of such blind persons,

1033

the English Act allows this exception if a disabled

person has lawful possession or lawful use of a copy or part of a work; and the person‟s

disability prevents the person from enjoying the work to the same degree as a person who

1029

C.R.A.N. Paragraph (r) of the Second Schedule.

1030

C.D.P.A. Sections 41-43; C.R.A.I. Section 52 (p).

1031

C.D.P.A. Section 43;

1032

U.S.C. Section 123.

1033

C.R.A.N. Paragraph (s) of the Second Schedule.

242

does not have that disability.

1034

Again, the making of an accessible copy of the work referred

to in the Act does not infringe Copyright if the copy is made by the disabled person or by a

person acting on his behalf; or the copy is made for the disabled person‟s personal use; and

the same kind of accessible copies of the work are not commercially available on reasonable

terms by or with the authority of the Copyright owner.

1035

Copyright is also not infringed by

the transfer of an accessible copy of a work made under the section by any person other than

a person by or for whom an accessible copy of the work may be under this section; or a

person who intends to transfer a copy to a person falling within the contemplation of the

Act.

1036

Such transfer will also not amount to infringement of Copyright in the work where

the transfer is authorized by the Copyright owner.

1037

The term „deal with‟ as used under the

Act means „sold or let for hire or offered or exposed for sale or hire‟.

1038

The Act further provides that if an authorized body has lawful possession of a copy of the

whole or part of a published work, the body may, without infringing Copyright, make and

supply accessible copies of the work for the personal use of disabled persons.

1039

However, it

will amount to infringement of the Copyright on the work if the same kind of accessible

copies of the work are commercially available on reasonable terms by or with the authority of

the Copyright owner.

1040

In the same vein, the Act provides that if an authorized body has

lawful possession of the whole or part of a broadcast or a copy of a broadcast, the body may

without infringing Copyright:

(a) in the case of a broadcast, make a recording of the broadcast, and

make and supply accessible copies of the recording or any work

included in the broadcast; and

1034

C.D.P.A. Section 31A (1).

1035

Ibid.

1036

Ibid.

1037

Ibid. Proviso Subsection (4).

1038

Ibid. Proviso to subsection (7).

1039

Ibid. Section 31B (1).

1040

Ibid. subsection (2).

243

(b) in the case of a copy of a broadcast, make and supply accessible

copies of the work or of any work included in the broadcast.

1041

It will however amount to infringement if the same kind of accessible copies of the broadcast,

or of any work included in it, are commercially available on reasonable terms by or with the

authority of the Copyright owner.

1042

The Act further mandates an authorized body which is an educational establishment

conducted for profit to ensure that any accessible copies which it makes under this section are

used only for its educational purposes.

1043

Such an authorized body which has made an

accessible copy of a work under the English Act

1044

may supply it to another authorized body

which is entitled to make accessible copies of the work under this section for the purposes of

enabling that other body to make accessible copies of the work.

1045

However, if an accessible

copy made under this section is subsequently dealt with, it is to be treated as an infringing

copy for the purposes of that dealing; and if that dealing infringes Copyright, it is to be

treated as an infringing copy for all subsequent purposes.

1046

Furthermore, if an accessible

copy is made of a work which is in copy-protected electronic form, the accessible copy must,

so far as it is reasonably practicable, incorporate the same or equally effective copy

protection, unless the Copyright owner agrees otherwise.

1047

The Act further permits an

authorized body entitled to make accessible copy of the work under the Act,

1048

to without

infringing Copyright, make a copy of the work ie, „an intermediate copy‟, if it is necessary in

order to make the accessible copy.

1049

Such authorized body that has made such intermediate

copy of a work under this section may supply it to another authorized body qualified to make

such work under the Act for purposes of enabling the latter to make accessible copies of the

1041

Ibid. subsection (3).

1042

Ibid. Subsection (4).

1043

Ibid Subsection (6).

1044

Ibid. Section 31B.

1045

Ibid. Subsection (9).

1046

Ibid Subsection (11).

1047

Ibid Subsection (8).

1048

Ibid. Section 31BA (1).

1049

Ibid.

244

work

1050

The conditions relating to infringement and the sum charged for the production and

supply of such copies are the same as required under the Act earlier discussed in this work.

1051

The English Act also mandates the authorized body approved for the reproduction of the

copies of the work to keep record of accessible copies it makes under the Act; intermediate

copies it makes under the Act;

1052

and the persons to whom such copies are supplied.

1053

An

authorized body must allow the Copyright owner or a person acting for the Copyright owner

on giving reasonable notice, to inspect at any reasonable time, the records kept under the Act;

and the records of copies made under the Act.

1054

However, the Act provides that within a

reasonable time of making an accessible copy, an authorized body must:

1055

a). notify anybody which-

(i) represents particular Copyright owners in the type of work

concerned; and

(ii) has given notice to Secretary of the State of the Copyright

owners, or the classes of Copyright owner, represented by it; or

b). if there is no such body, notify the Copyright owner (unless it is

not reasonably possible to ascertain the name and address of

the Copyright owner).

For purposes of clarity, the term „disabled person‟ as used in the English Act is broader in

scope than that contemplated under the Nigerian Act. Under the former Act, it means „a

person who has a physical or mental impairment‟.

1056

„Authorized Body‟ as used in the Act

means „an educational establishment or a body that is not conducted for profit‟.

1057

Thus,

there exists some discrepancies between the English Act and the Nigerian Act, for while the

latter Act provides for protection of the reproduction on Braille for the exclusive use of the

blind; or the sound recordings made by institutions or other establishments approved by the

1050

Ibid. Subsection (2).

1051

Section 31B.

1052

Ibid.

1053

Ibid.Section 31BB (1).

1054

Ibid. Subsection (2).

1055

Ibid. Subsection (3).

1056

Ibid. Section 31F (2).

1057

Ibid. Subsection (6).

245

Government for the promotion of the welfare of other disabled persons for the exclusive use

of such blind or disabled persons, the English Act makes an all encompassing provision for

the protection of all disabled persons and for the production of copies of accessible copies for

that purpose by the authorized bodies.

It is a welcome development that the provisions of the U.S. Act relating to this exception are

similar to those of the English Act.

1058

Unfortunately, the Indian Act does not expressly

provide for this exception, although it is implied in the Act‟s fair use provisions.

1059

It is

therefore suggested that the Nigerian and Indian Acts be amended along the line of the

English Act. This will adequately address and redress the predicament faced by all disabled

persons not only the blind, but the deaf, dumb, mentally deranged, paralyzed persons, etc.

5.9 News and Public Interest Broadcasts

The Acts under consideration contain elaborate provisions on the exemptions of works

relating to news and public interest broadcasts. These shall be considered hereunder.

5.9.1 Broadcasting of Works Already Lawfully Available to the Public

The exemption relating to the broadcasting of a work already lawfully made accessible to the

public as entrenched in the Nigeria Act is recognized by the other Acts under

consideration.

1060

The English Act provides that the showing or playing in public of a

broadcast to an audience who have not paid for admission to the place where the broadcast is

to been seen or heard does not infringe Copyright in the broadcast; any sound recording,

except so far as it is an excepted sound recording, included in it; or any film included in it

1061

.

However, where by virtue of the provisions of the Act, the Copyright in a broadcast shown or

played in the public is not infringed, Copyright in any excepted sound recording included it is

1058

U.S.C. Section 121.

1059

C.R.A.I. Section 52 (a).

1060

C.R.A.N. Paragraph (m) of the Second Schedule.

1061

C.D.P.A. Section 72 (1) (a), (b), & (c).

246

not infringed if the playing or showing of that broadcast in public is necessary for the

purposes of:

1062

(a) repairing equipment for the reception of broadcasts;

(b) demonstrating that a repair to such equipment has been carried

out; or

(b) demonstrating such equipment which is being sold or let for

hire or offered or exposed for sale or hire.

Thus, under the English Act, it is immaterial that the broadcast has been lawfully made

accessible to the public contrary to the requirement under the Nigerian Act. Unlike the

Nigerian Act, the English Act does not also make any provision for fair compensation for the

use of such work. Conversely, the Nigerian Act does not require that the audience should not

pay for such reception quite unlike the requirement under the English Act which requires that

the audience should not pay for the reception of such broadcast. The English Act considers

the kind of audience contemplated by the Act and what kind of payment will not be allowed

under the Act.

1063

It is submitted that the inability of the Nigerian Act to define both the targeted audience

contemplated by the drafters of the Act, as well as what constitutes payment by such audience

gives Copyright violators a wide margin to expand their illicit trade of infringement of

Copyright. It is therefore recommended that the Act be amended along the line of the more

explicit and precise English Act. This will make for effective combating of Copyright

violations in Nigeria.

It is noted that the U.S. Act provides this exception similar to that provided by the Nigerian

Act.

1064

Thus, the suggestion proffered in the proposed Nigerian Act should be incorporated

in the U.S. Act through the immediate amendment of the latter. It is also suggested that the

1062

Ibid. Subsection (IB).

1063

Ibid Subsection (2) & (3).

1064

U.S.C. Section 110.

247

Indian Act, which does not expressly provide for this exception be urgently amended along

the line of the English Act.

5.9.2 Reproduction by a Broadcasting Authority

The English Act provides for Copyright exemption in a situation where a wireless broadcast

made from a place in the United Kingdom is received and immediately re-transmitted by

cable.

1065

Copyright in the broadcast is not infringed if the re-transmission by cable is in

pursuance of a relevant requirement; or if and to the extent that the broadcast is made for

reception in the area in which it is re-transmitted by cable and forms part of a qualifying

service.

1066

The Copyright in any work included in the broadcast is not infringed if and to the

extent that the broadcast is made for reception in the area in which it is re-transmitted by

cable; but where the making of the broadcast was an infringement of the Copyright in the

work, the fact that the broadcast was re-transmitted by cable shall be taken into account in

assessing the damages for that infringement.

1067

The re-transmission by cable of any work

included in the broadcast outside the broadcast area shall be treated as licensed by the

Copyright owner if he is paid by the person making the re-broadcast as may be agreed or

determined in default of agreement by the Copyright Tribunal.

1068

The English Act also

provides that recording of a broadcast or a copy of such a recording may be made for the

purpose of being placed in an archive maintained by a body which is not established or

conducted for profit without infringing any Copyright in the broadcast or in any work

included in it.

1069

Moreover, no term of contract would operate to prevent or restrict the

operation of this section.

1070

Similarly, adaptations of such works done without infringing

Copyright in literary, dramatic or musical work will not amount to infringement of Copyright

1065

C.D.P.A. Section 73(1).

1066

Ibid. subsection (2).

1067

Ibid. Subsection (3).

1068

Ibid. Subsection (4).

1069

Ibid. Section 75(1).

1070

Ibid. Subsection (2)

248

in the original work.

1071

The Act makes it clear that anything done relating to permitted acts

on copyrighted works may be done without infringing Copyright in a literary, dramatic or

musical work where the work is an adaptation; and does not infringe any Copyright in the

work from which the adaptation was made.

1072

This provision is obviously missing in the

Nigerian Act, even though its usefulness is in doubt by virtue of the fact that the Copyright

Law only protects copyrightable works and not infringing works themselves.

It is however noted that while the Nigerian Act talks of reproduction of work by or under the

direction or control of a broadcasting authority, the English Act talks about re-transmission of

the work. Moreover, the English Act does not make any provision for the destruction of such

work after a prescribed period as is the case under the Nigerian Act. It is therefore submitted

that the Nigerian Act is wider in scope and more explicit regarding this exemption, in that it

well articulated the exception and at the same time gives no room for infringement. It is

therefore suggested that the relevant sections of the English Act embodying this exemption

be amended along the line of the Nigerian Act.

It is observed that while the U.S. Act provides for this exception substantially in the same

manner the Nigerian Act does, the Indian Act does not expressly provide for same, even

though the provisions of fair use covers this exception.

1073

It is therefore suggested that the

Indian Act be urgently amended along the line of the Nigerian Act.

On the other hand, the exemption created in relation to news of the day as contained in the

Nigerian Act

1074

is recognized by the English Act when it allows the use of works for

criticism, review, quotation and news reporting, provided that such work is accompanied by

1071

Ibid. Section 76.

1072

Ibid.

1073

U.S.C. Section 112.

1074

C.R.A.N. Paragraph (11) of the Second Schedule.

249

sufficient acknowledgement.

1075

This Act empowers the British Broadcasting Corporation to

make or use any work for the purpose of making supervision and control over programmes

broadcast by them or included in any on demand programme service provided by them, of the

recordings of those programmes.

1076

The Act also provides that the making in domestic

premises for private and domestic use of a recording of a broadcast solely for the purpose of

enabling it to be viewed or listened to at a more convenient time does not infringe any

Copyright in the broadcast or in any work included in it.

1077

The last two preceding

provisions of the English Act are not captured in the Nigerian Act. It is submitted with due

respect that these provisions are inconsequential as they are dangerous instruments in the

hands of Copyright violators. It is suggested that these provisions be expunged from the

English Act through immediate amendment.

It is however observed that the English Act has no equivalent of the paragraph (n) exception

of the Nigerian Act. It is suggested that the English Act be amended to include this exception

in the Act. On the other hand, both the U.S. and Indian Acts provide for this exception in the

manner the Nigerian Act contain them.

1078

Therefore, the arguments proffered in the latter

Act‟s provisions are applicable to the U.S. Act.

The exemption on the communication to the public of a work in a place where no admission

fee is charged in respect of the communication, by any club whose aim is not profit making

under the Nigerian Act

1079

is also contained in the English Act in the same manner as it is

provided for under the Nigerian Act, except that the English Act talks about club, society, and

the general public.

1080

It specifically protects such broadcast to persons who have not paid for

1075

C.D.P.A. Section

30.

1076

Ibid. Section 69.

1077

Section 72(1).

1078

C.R.A.I; Section 52 (a); U.S.C. Section 107.

1079

C.R.A.N. Paragraph (0) of the Second Schedule.

1080

C.D.P.A. Section 72.

250

admission to a place as persons admitted as resident or inmates of the place and members of a

club or society.

1081

Thus, the provisions of the English Act is wider in scope than the Nigerian

Act in that while it targets audience which includes inmates of hostels, prisons, members of

recreation clubs, age grade, dance groups, bands, members in camps, as well as members of

societies such as churches, mosque, confraternities etc; the Nigerian Act contemplates

members of a club only. Even though the Acts do not define the word „club‟, it is proper that

it be given its ordinary dictionary meaning which is „an association of people united by a

common interest or purpose‟. Whatever be the case, the most important fact in this exception

is that no admission fee should be charged and such club should not be for profit making.

Thus, when faced with a case of alleged infringement, the Court will only be concerned with

the particular aim of the club and not necessarily its overall „objects‟ as stipulated in its

memorandum of association or articles. It will suffice if the aim of the club is benevolent or

non-profit making. Hence, it will not amount to an infringement of a musical work if the Red

Cross or any similar organization performs such musical work in public without collecting

any admission fee from the audience.

It is submitted that this exemption is Copyright friendly since its object is to advance the

dissemination of information. This may be the reason for the incorporation of this exemption

in the Acts under consideration. For instance, the Indian Act permits this exemption if the

work is heard in an enclosed room or hall meant for the common use of the residents in a

residential premises, club or similar organization which is not established or conducted for

profit, as part of the activities of such organization.

1082

Similarly, the U.S. Act allows this

exemption if use of the work is made by managements of hotels, house apartments for the

benefits of the lodging guests and residents of such establishments, so long as no fee is

1081

Ibid. Subsection (3).

1082

C.R.A.I. Section 52 (k).

251

charged for such services.

1083

It is submitted that the provisions of the Indian Act on this

exception are more elaborate, precise and Copyright friendly than the other Acts under

consideration. It is therefore suggested that these Acts be amended along the line of the

Indian Act.

5.10 Official Use /Use of Judicial Proceedings

The exemption on the use made of a work for the purpose of judicial proceeding or of any

report of any such proceeding as contained in the Nigerian Act

1084

is recognized by the

English Act. However, while the Nigerian Act only protects the use made of a work for the

purpose of judicial proceeding, the English Act protects acts done for the purpose

parliamentary or judicial proceedings and the recording of any such proceedings held in

public, but it does not authorize the copying of a work which is itself a published report of the

proceedings.

1085

It also protects the copying in a literary work of a material open to public

inspection pursuant to a statutory requirement or where such work is on a statutory

register.

1086

The Act further permits the government to copy a work, issue copies of it to the

public, and or make the copy available to the public by electronic transmission in such a way

that the members of the public may access it from a place and at a time individually chosen

by them.

1087

This applies where a literary, dramatic, musical or artistic work has in the course

of public business, been communicated to the Crown for any purpose.

1088

It is also clear from

the wordings of the English Act that once the doing of any act relating to the copying of a

work, is specifically authorized by an Act of British Parliament, whenever passed, then,

unless the Act provides otherwise, the doing of that act does not infringe Copyright.

1089

1083

U.SC. Section 107.

1084

C.R.A.N. Paragraph (p) of the Second Schedule.

1085

C.D.P.A. Section 45 (1) & (2).

1086

Ibid. Section 47.

1087

Ibid. section 48 (1) & (3).

1088

Ibid. Subsection(1).

1089

Ibid. Section 50 (1).

252

It is observed that the Indian Act protects the use of works for purposes of judicial

proceedings, the reproduction of works prepared by Legislature, the reproduction of works in

a certified copy or supplied in accordance with any law for the time being in force.

1090

It also

protects the reproduction or publication of works published in the Official Gazette; the report

of any Committee, Commission, Council, Board or other bodies appointed by the Indian

Government; the judicial or order of Courts, Tribunals or other judicial Authority.

1091

Obviously, this Act contains more elaborate and Copyright friendly provisions embodying

this exemption than the other Acts under consideration. It is however disappointing that the

U.S. Act does not expressly provide for this exception. It may well be that this omission is

intentional as the works contemplated under this exemption are works which are not accorded

Copyright protection by this Act, ie, works of United States Government.

1092

It is suggested

that the laudable provisions relating to this exemption as contained in the Indian Act be

incorporated in the other Acts under consideration through the immediate amendment of

these Acts.

5.11 Making of Sound Recordings against Payment of Compensation

The making of a sound recording of a literary or musical work against payment of such

compensation

1093

and the special exceptions in respect of sound recording of musical

works

1094

as contained under the Nigerian Act is not provided for in the other Acts under

consideration, as stated in the last preceding chapter. The continued existence of these

exemptions in the Nigerian Act was criticized in that chapter. It is however observed that

there are other exceptions to Copyright control under the English Act which the Nigerian Act

does not provide for. For example, the English Act protects the copying of materials which is

1090

C.R.A.I. Section 52 (d) & (e)

1091

Ibid. Paragraph (q).

1092

U.S.C. Section 105.

1093

C.R.A.N. Paragraph (i) of the Second Schedule.

1094

Ibid. Paragraph (i) (a) – (d) of the Third Schedule.

253

comprised in public documents within the meaning of the relevant law,

1095

and under similar

enactments contained in the Copyright Act. It provides that copy may be supplied to any

person, by or with the authority of an officer appointed under the Act.

1096

It also protects

copying of a computer program for purposes of making any back up copy by a lawful

user.

1097

The lawful user of a copy of a computer program expressed in a low level language

may convert the work into a version expressed in a higher level language or incidentally in

the course of so converting the program to copy it, that is, to „decompile it‟, so long as the

conditions set out in the Act are met.

1098

The aforementioned conditions are that the user must

show that it is necessary to decompile the program; and to obtain the information necessary

to create an independent program which can be operated with the program decompiled or

with another program or, that the information so obtained is not used for any purpose other

than the permitted objective. The English Act further protects the acts of a lawful user of a

copy of a computer programme for the purposes of observing, studying or testing the

functioning of the programme in order to determine the ideas and principles which underlie

any element of the programme if the user does so while performing any act in relation to

loading, displaying, running, transmitting or storing the programme.

1099

Such a lawful user

may copy or adapt the program provided that such copying or adapting is necessary for his

lawful use, and it is not prohibited under any term or condition of an agreement regulating the

purpose of correcting errors in it.

1100

The Act also exempts a person who has lawful right to

use the database or any part of the database, whether under a license to do any of the acts

restricted by the Copyright in the database or otherwise to do, in the exercise of that right,

anything which is necessary for the purposes of access to and use of the contents of the

1095

Public Records Act, 1958,

1096

C.D.P.A. Section 49.

1097

Ibid. Section 50A.

1098

Ibid. Section 50B.

1099

Ibid. Section 50BA (1).

1100

Ibid. Section 50C (1) & (2).

254

database or of that part of the database.

1101

Under the sections being considered, no

contractual terms or conditions entered into by parties to a contract purporting to restrict their

operations will be valid.

1102

Similarly, there are some exceptions relating to artistic designs contained in the English

Act

1103

in the forms of design documents and models, designs derived from artistic works,

things done in reliance on registration of designs, use of typeface in ordinary course of

printing and articles for producing materials in particular typeface. The English Act allows a

lawful user to copy a work in electronic form purchased on terms, or to adapt the work, or

make copies of an adaption, in connection with his use.

1104

It is submitted that the aforementioned exemptions contained in the English Act represent the

huge experiences gained overtime by the by English parliament, the judiciary and the law

enforcement agencies in the course of combating Copyright violation. Any attempt to negate

these experiences will amount to institutionalizing Copyright infringement. It is therefore

suggested that the other Acts under consideration be amended to incorporate these laudable

provisions of the English Act.

5.12. Compulsory Licensing

The Acts under consideration amply provide for compulsory licenses. Under the English Act,

a licensing scheme means a scheme setting out the classes of cases in which the operator of

the scheme or the person on whose behalf he acts is willing to grant Copyright licenses and

the terms on which licenses would be granted in those classes of cases.

1105

In other words, it

is a scheme that determines the license fees to be charged in respect of specific types of

works. In England, a Licensing Tribunal is established to control the licensing schemes and to

1101

Ibid. Section 50D (1).

1102

Ibid. Subsection (8).

1103

Ibid. Section 51-55.

1104

Ibid. Section 56.

1105

C.D.P.A. Section 116 (1).

255

grant compulsory licenses.

1106

The advantage of this situation over the position of the

Nigerian Act is that the Licensing Tribunal plays the role of a moderator in situations where

the conditions prescribed by the right owner or his representative for the grant of the license

is too stringent.

1107

The English Act further provides that the Secretary of State may by order

provide that in such cases as may be specified in the order, the lending to public of copies of

literary, dramatic, musical or artistic works, sound recordings or films shall be treated as

licensed by the Copyright owner subject only to the payment of such reasonable royalty or

other payment as may be agreed or determined in default of agreement by the Copyright

Tribunal.

1108

The Tribunal has the power to settle the royalty payable if the parties cannot

agree on the royalty. Licenses as of right may however become available if a report is made

to that effect by the Monopolies and Merger Commission.

1109

However, no such order shall

apply if, or to the extent that, there is a licensing scheme certified for the purposes of the

grant of licenses.

1110

Such order must be made by statutory instrument approved by a

resolution of each House of Parliament.

1111

Moreso, under the English Act, if the public

interest is, or has been, or may be prejudiced because of the conditions in licenses restricting

the use of the work; or the right of the Copyright owner to grant further licenses; or because

the Copyright owner refuses to grant licenses on reasonable terms, such conditions may be

cancelled, modified or shall be available as of right through the instrumentality of the

Competition Commission‟s report.

1112

The English Act also contains provisions for the compulsory exercise or rights in literary,

dramatic, musical or artistic works, sound recordings or films in respect of cable re-

1106

Ibid.

1107

Ibid.

1108

Ibid. Section 66 (1).

1109

M Ozioko, „Copyright Provisions Impacting on Access to knowledge: A Comparative Analysis‟,

Op. Cit. p. 67.

1110

C.D.P.A. Section 66 (23).

1111

Ibid. Subsection (4).

1112

Ibid. Section 144 (1).

256

transmission or broadcasts from another EEA

1113

member state in which the work is

included.

1114

This right is referred to as the „cable re-transmission right‟. If the Copyright

owner has not transferred management of his cable re-transmission right to a licensing body,

the licensing body which manages rights of the same category shall be deemed to manage his

right.

1115

However, a Copyright owner has the same rights and obligations resulting from any

relevant agreement between the cable operator and the licensing body as Copyright owners

who have transferred management of their cable re-transmission right to that licensing body

have.

1116

However, such right owner must claim his right within three years from the date of

the relevant cable re-transmission.

1117

The Act further provides for the right to use certain

sound recordings in broadcasts and cable programmes services, being recordings made where

the appropriate license could have been granted or procured by a licensing body.

1118

It also

provides for the right to certain sound recordings in broadcasts where appropriate license

could have been granted or procurable by a licensing body.

1119

The exercise of this right will

occur if there is a refusal to grant or procure a license at terms acceptable to the person; or

where the person holds a license but the tenure is limited.

1120

However, before the person

intending to avail himself of this right begins to exercise it, he must give reasonable notice to

the Copyright Tribunal of his intention to exercise the right, the date on which he proposes to

begin to do so, together with an application to the Tribunal to settle the terms of payment.

1121

It is submitted that the establishment of the Copyright Tribunal is a proactive step taken by

the English Act to facilitate licenses. The Tribunal is an active machine in the dispensation of

its duties quite unlike the dormant and inactive Copyright Licensing Panel of Nigeria

1113

EEA means „European Economic Area‟.

1114

Ibid. Section 144A (1).

1115

Ibid. Subsection (3).

1116

Ibid. Subsection (3).

1117

Ibid.

1118

Ibid. Section 135 -135.

1119

Ibid.

1120

Ibid. Section 135A.

1121

Ibid. Section 135B.

257

established under the Nigerian Act to grant compulsory licenses which was discussed in the

last preceding chapter. It is therefore suggested that the Nigerian Act be urgently amended

along the line of the English Act relating to the establishment of the Copyright Tribunal.

It is observed that there are several different compulsory licensing provisions contained in the

U.S Act. These include the grant of compulsory licenses for non dramatic musical

composition;

1122

public broadcasting;

1123

transmission by cable systems;

1124

subscription

digital audio transmission;

1125

and non- subscription audio digital transmission, such as

internet radio.

1126

The compulsory licenses for non-dramatic musical compositions under the

Act allows a person to distribute new sound recordings of a musical work if that work had

been previously distributed to the public by or under the authority of the owner.

1127

There is

no requirement that the new recording be identical to the previous work, as the compulsory

license includes the privilege of rearranging the work to conform it to the recording artist‟s

intention.

1128

However, this does not allow the artist to change the basic melody or

fundamental character of the work.

1129

In order to take advantage of this compulsory license,

the recording artist must provide notice and must also pay royalty for his use of the work.

Such notice must have been sent to the Copyright owner, or if unable to determine the

Copyright owner, to the Copyright Office, within thirty days of making the recordings, but

before distributing physical copies; as failure to provide such notice would constitute

infringement.

1130

Moreover, although compulsory licensing scheme allows one to make and

distribute physical copies of a song for a set of royalty, the owner of the Copyright in the

1122

U.S.C. Section 115.

1123

Ibid. Section 118.

1124

Ibid. Section 111 (c).

1125

Ibid. Section 114 (d) (2).

1126

Ibid. Subsection (2).

1127

Ibid. Section 115 (a) (1

1128

U.S. Copyright Office, „Copyright Law of the UnitedStates‟www.copyright.gov/circs/circl/htm.

accessed 10/10/17.

1129

Ibid.

1130

U.S.C. Section 115 (1) (b).

258

underlying musical composition can still control public performance of the work or

transmission over the radio.

1131

Compulsory licensing in the United State is granted by the

Copyright Royalty Judge who also plays important roles in determination and distribution of

loyalties relating to compulsory licenses.

1132

Under the Indian Copyright Act, an application can be made to the Copyright Board for

compulsory licensing in works withheld from public and unpublished; and compulsory

licenses for the benefit of the disabled.

1133

Any person desirous of making a cover version,

being a sound recording in respect of any literary, dramatic or musical work where sound

recordings of that work have been made by or with the license or consent of the owner, may

do so provided that such sound recordings shall be in the same medium as the last recording,

unless the medium of the last recording is no longer in current commercial use.

1134

Such an

applicant must give his prior notice of intention to do so in the prescribed form and provide in

advance, copies of all covers or labels with which the sound recordings are to be sold; and

then pay royalties in respect of all copies made by him, at the rate fixed by Copyright

Board.

1135

He must not make any alteration in the literary or musical work which has not

been made previously by or with the consent of the owner of the rights, or which is not

technically necessary for the purpose of making the sound recordings.

1136

He must also

maintain such registers and books of account in respect thereof, including full details of

existing stock as may be prescribed; and shall allow the owner of the rights or his duly

authorized agent or his legal representative to inspect all records and books of account

relating to such sound recordings.

1137

The Act also permits the grant of statutory licenses for

1131

Ibid. Section 106(4).

1132

Ibid. Section 106 (4).

1133

C.R.A.I. Section 31,31A &31B .

1134

Ibid. Section 31C.

1135

Ibid. Paragraphs (1) &(2).

1136

Ibid. Subsection (3).

1137

Ibid. Subsection (5).

259

the broadcasting of literary works, musical works and sound recordings.

1138

It further

authorizes the grant of compulsory licenses to produce and publish translations; and the

license to produce and publish works for certain purposes.

1139

It is observed that owing to the paramount importance of compulsory licensing in the

advancement of knowledge and information, this concept has been recognized at the

international plane. The Berne Convention provides the legal basis for compulsory licensing

at the international level.

1140

The Convention states that:

1141

Authors of literary and artistic works shall enjoy the exclusive right of

authorizing: (i) the broadcasting of their works or communication

thereof to the public by any other means of wireless diffusion of signs,

sounds or image; (ii) any communication to the public by wire or by

rebroadcasting of the broadcasting of the work, when this

communication is made by an organization other than the original one;

(iii) the public communication by a loudspeaker or any other analogous

instrument transmitting by signs, sound or images, the broadcast of the

work.

However, it shall be a matter of legislation in the country which is a member state to the

Convention to determine the conditions under which the rights abovementioned may be

exercised; but these conditions shall apply only in the countries where they have been

prescribed.

1142

At all times, such licenses shall not in any circumstances be prejudicial to the

moral rights of the author, nor to his right to obtain equitable remuneration which in the

absence of agreement, shall be fixed by competent authority.

1143

The Convention further

states that:

1144

each country of the Union may impose for itself reservations and the

conditions on the exclusive right granted to the author of a musical work

and to the author of any words, the recordings of which together with the

musical work has already been authorized by the later, to authorize the

sound recording of that musical work, together with such words, if any;

1138

Ibid. Section 31D.

1139

Ibid. Sections 32 & 32A.

1140

Article 11 bis (2) & 13(1), Berne Convention for the Protection of Literary and Artistic Works, 1886.

1141

Ibid. Article 11 bis (1).

1142

Ibid. Article 11 bis (2).

1143

Ibid.

1144

Ibid. Article 13(1).

260

but all such reservations and conditions shall apply only in the countries

which have imposed them and shall not, in any circumstances, be

prejudicial to the rights of these authors to obtain equitable remuneration

which in the absence of agreement, shall be fixed by competent authority.

It is worthy to note that the countries under consideration in this work are all member states

to this Convention and have also domesticated the laudable provisions of the Convention.

While acknowledging that the provisions of the Indian Act regarding the conditions precedent

for the grant of compulsory licenses are less cumbersome and more ideal for a developing

country such as Nigeria, it is clear that the above discussed provisions of the English Act are

wider in scope than those of the other Acts under consideration. For instance, while the grant

of compulsory license under the Nigerian Act is limited to the production and publication of

translations of literary or dramatic works, or of the main work itself, for purposes relating to

teaching, research and scholarship, the English Act goes far beyond this scope and allows the

grant of compulsory licenses even for commercial purposes and in respect of a wider under

range of works.

1145

However, it is submitted that the concept of compulsory licensing

discussed under the English Act is too wide. Given the low development and potentials of

abuse, compulsory licensing may be a damaging tool in the hands of Copyright violators.

Hence, this wider access to copyrightable works is not advocated for now in order not to

sacrifice the opportunity of right owners to reap just benefits from their creations on the altar

of promoting public access to knowledge and information. Moreover, care must be taken at

all times to balance the competing interests in the context of the peculiarities of a given

society, especially developing countries where the enforcement of Copyright is hindered by

corruption, poverty and illiteracy. It is submitted that a regime heavily weighted in favour of

1145

M Ozioko, „Copyright Provisions Impacting on Access to knowledge: A Comparative Analysis‟,

Op. Cit. p.63.

261

promoting access to knowledge as against protecting the economic interests of creators will

certainly destroy the incentive to create and invent more works.

1146

5.13 Copyright Terms

Copyright terms as recognized under the Nigerian Act

1147

are adequately protected in the

jurisdictions under consideration. In England for instance, the Duration of Copyright and

Rights in Performances Regulation amended the relevant sections of the English Act to bring

it in conformity with international standards.

1148

Under the amended Act, Copyright in

literary, dramatic, musical or artistic works expire at the period of Seventy years from the end

of the calendar year in which the author dies.

1149

However, if the work is of unknown

authorship, Copyright in it expires at the end of the period of Seventy years from the end of

the Calendar year in which the work was made; or if the work is made available to the public,

at the end of the period of Seventy years from the end of the calendar year in which it is first

so made available.

1150

Similarly, Copyright in computer generated works expires at the end of

the period of Fifty years from the end of the Calendar year in which the work was made.

1151

Copyright in sound recordings subsists until Fifty years from the end of the Calendar years in

which the recording is made.

1152

However, if the recording is published during this period,

Copyright in it will last for Seventy years from the end of the calendar year in which it is first

publish; or if during the period the recording is not published but is made available to the

public by being played in public or communicated to the public, Copyright shall subsist until

seventy year in which it is first so made available.

1153

However, in determining whether a

sound recording has been published, played in public or communicated to the public in the

1146

Ibid.

1147

C.R.A.N. First Schedule.

1148

Section 4.Duration of Copyright and Rights in Performances Regulation of England, 1995.

1149

C.D.P.A. Section 12.

1150

Ibid.

1151

Ibid. 12(7).

1152

Ibid. 13A (2).

1153

Ibid. Subsection (2) (b).

262

manner contemplated under Act, such publication or communication must be authorized by

the Copyright owner.

1154

The duration of Copyright in films expires at the end of the period of Seventy years from the

end of the Calendar year in which the death occurs of the last to die of the following persons:

(a) the principal director, (b) the author of the screen play, (c) the author of the dialogue, (d)

the composer of music specially created for and used in the film.

1155

The duration of

Copyright in such works shall be computed from the death of the last known author; but if the

identity of the author is unknown in relation to (a) to (d) above, Copyright in such work shall

expire at the end of the period of Seventy years from the end of the calendar year in which

the film was made.

1156

The identity of any person referred to in this section shall be regarded

as unknown if it is not possible for a person to ascertain the identity of such person by

reasonable inquiry; but if the identity of such person is once known, it shall not subsequently

be regarded as unknown.

1157

However, where there is no person falling within the relevant

section of the Act under discussion,

1158

Copyright in the work expires at the end of the

period of Fifty years from the end of the calendar year in which the film was made.

1159

Similarly, Copyright in a broadcast expires at the end of the period of Fifty years from the

end of the Calendar year in which the broadcast was made.

1160

Copyright in typographical

arrangement of a published edition expires at the end of the period of Twenty five years from

the end of the calendar year in which the edition was first published.

1161

The Act further

provides that the duration of Copyright in literary, dramatic, musical or artistic work made by

Her Majesty or by an Officer of the Crown in the course of his duties otherwise known as

1154

Ibid.

1155

Ibid. 13B (1) & (2).

1156

Ibid.Subsection (4).

1157

Ibid.Subsection (10).

1158

Ibid.Section 13B (2) (a)-(d).

1159

Ibid.Subsection (9).

1160

Ibid.Section 14.

1161

Ibid.Subsection (15).

263

„Crown Works‟, subsist until the end of the period of one hundred and twenty five years from

the end of the calendar year in which the work was first made.

1162

Fifty years is also the

duration of works such as; Acts or a Measure of the General Synod of the Church of England,

Measure of the National Assembly of Wales, Acts of Wales, Northern Ireland, Acts and Bills

of the Parliament of Scotland.

1163

However, if a Crown Work is published commercially

before the end of the period of seventy five years from the end of the calendar year in which

it was made, Copyright subsists in such works until the end of the period of fifty years in

which it was so first published.

1164

Copyright in literary, dramatic, musical or artistic work of International Organizations so

declared by Her Majesty, the Queen of England through an Order-in-Council enjoys

Copyright until the end of the period of fifty years from the end of the calendar year in which

the work was made, or such longer period as may be specified by Her Majesty by Order in

Council for purposes of complying with the International obligations of which the United

Kingdom is a party to.

1165

The English Act also provides that where the country of origin of

the work is an EEA State but the author of the work is not a national of an EEA State, the

duration of Copyright in the aforementioned class of work is that to which the work is

entitled in the country of origin, provided that that does not exceed the period which would

apply under the aforementioned section.

1166

The Act further states that works of authors who

are not members of an EEA State shall be for the duration of Copyright of the creator‟s

country of origin; but if this exceeds the protection accorded to such work by the Act, the

duration of Copyright should be that prescribed by the Act.

1167

Reference to a person being a

national of an EEA State as made under this section shall be construed in relation to a body

1162

Ibid.Section 163 (3).

1163

Ibid.Sections 163-165. (4).

1164

Ibid.Section 163 (3) (b).

1165

Ibid.

1166

C.D.P.A. Section 172A (l).

1167

Ibid. Subsection (2).

264

corporate incorporated under the law of an EEA State.

1168

However, if the application of the

Act

1169

in relation to works of an author who is not a national of an EEA member state

aforementioned, would be at variance with an international obligation to which the United

Kingdom became subject to prior to 29

th

specified in the provision of the Act discussed above.

1170

In the United States, Copyright terms have been reviewed upwards in compliance with

international obligations to which the United States is party to. This was done through an Act

which amended the current U.S. Copyright Act.

1171

Presently, Copyright in works created on

or before January 1, 1978 endures for a term consisting of the life of the author and seventy

years after the author‟s death.

1172

The term of Copyright in works of joint authorship is the

life time of the last serving author, and seventy years after his death.

1173

In the case of an

anonymous work, a pseudonymous work, or a work made for hire, the Copyright endures for

a term of ninety-five years from the year of its first publication; or the term of one hundred

and twenty years from the year of its creation, whichever expires first.

1174

The Act provides

that:

1175

if before the end of such term, the identity of one or more of the authors of

an anonymous or pseudonymous work is revealed in the records of

registration made for work under paragraphs (a) and (d) of section 408 of

the Act (regarding Copyright registration), or in the records provided for by

these paragraphs, the Copyright in the work endures for the term specified

by subsections (a) or (b) based on the life time of the author or authors

whose identity has been revealed.

1176

With respect to works created but not

published or copyrighted before January 1, 1978, such works shall enjoy

Copyright as if they are works under section 302 of the Act.

1168

Ibid.

1169

Ibid. Subsection (4).

1170

Ibid. Subsection (12).

1171

1172

U.S.C. Section 302 (a).

1173

Ibid. Paragraph (b).

1174

Ibid. Paragraph (c).

1175

Ibid. Section 303.

1176

Ibid.

265

Furthermore, any Copyright in the first term of which is subsisting on January 1, 1978, shall

endure for twenty-eight years from the date it was originally secured.

1177

The Act also

provides that in the case of any posthumous work or any periodical, cyclopedia, or other

composite work upon which the Copyright was originally secured by the proprietor; or any

work copyrighted by a corporate body otherwise than as assignee or licensee of the individual

author, or by an employer for whom such work is made for hire, the proprietor of such work

shall be entitled to a renewal and extension of the Copyright in such work for a further term

of sixty-seven years.

1178

The same term applies to other copyrighted works including a

contribution by an individual author to a periodical, cyclopedia or other composite works.

1179

It should be noted that the relevant subsections relating to the application for renewal of

Copyright under the Act provides that such application shall be made one year before the

expiration of the original Copyright.

1180

The Act also provides that Copyright still in its

renewal term at the time that the Sonny Bono Copyright Term Extension Act becomes

effective, shall have a Copyright term of ninety-five years from the date the Copyright was

originally secured.

1181

The Act further states that all forms of Copyright created on or before

January, 1, 1978 and works created but not published, Copyright created before January, 1,

1978

1182

run till the end of the Calendar year in which they would otherwise expire.

1183

Under the Indian Copyright Act, Copyright in literary, dramatic, and musical and artistic

work other than a photograph, published within the life time of the author shall subsist until

sixty years from the beginning of the calendar year next following the year in which the

author dies.

1184

Reference to the author herein shall in the case of a work of joint authorship,

1177

Ibid. Subsection 304 (1) (a).

1178

Ibid. Subsection (2) (a).

1179

Ibid. Paragraph (c).

1180

Ibid. Section 304.

1181

Ibid. Subsection (4) (c).

1182

Ibid. Sections 302 to 304

1183

Ibid. Section 305.

1184

C.R.A.I. Section 22

266

be construed as reference to the author who dies last.

1185

In the case of works published by

anonymous or pseudonymous authors, Copyright shall subsist until sixty years from the

beginning of the calendar year next following the year in which the work is first

published.

1186

However, where the identity of the author is disclosed before the expiration of

the said period, Copyright shall subsist until sixty years from the beginning of the calendar

year next following the year in which the author dies.

1187

Reference to the author in the case

of an anonymous work of joint authorship as made by the Act means,

,

where the identity of

one of the authors is disclosed, as reference to that author; where the identity of more authors

than one is disclosed, a reference to the author who dies last from among such authors.

1188

Again, reference to authors made herein is the same in the case of pseudonymous work of

joint authorship.

1189

For purposes of clarity, the identity of the author used in the Act shall be

deemed to have been disclosed, if either identity of the author is disclosed publicly by both

the author and the publisher; or is otherwise established to the satisfaction of the Copyright

Board of India by that author.

1190

The Act further provides that in the case of any work of joint authorship in the form of

literary, dramatic, musical work, an engraving or any adaptation, in which Copyright subsists

at the date of the death of the author or, at or immediately before the date of the death of the

author who dies last, but which has not been published before the death, Copyright shall

subsist until sixty years from the beginning of the calendar year next following the year in

which the work is first published; or, where an adaptation of the work is published in any

earlier year, from the beginning of the calendar year next following that year.

1191

The works

contemplated under this section shall be deemed to have been published if it has been

1185

Ibid. Proviso to Section 22.

1186

Ibid. Section 23.

1187

Ibid. Proviso to Section 23.

1188

Ibid. Subsections (2) &(3).

1189

Ibid. Subsection (3).

1190

Ibid. Paragraph (c).

1191

Ibid. Section 24.

267

performed in public or if any records made in respect of the work have been sold to the public

or have been offered for sale to the public.

1192

Similarly, Copyright in photographs,

cinematograph films, sound recordings, Government works, works of public undertakings,

and works of International Organizations, subsist until sixty years from the beginning of the

calendar year next following the year in which they are published.

1193

It is submitted that unlimited or relatively long duration of Copyright as provided by the Acts

under consideration will lead to dart of creativity and intellectual duration. A moderate

uniform moderate term will go a long way to balance both the interest of authors and those of

the general public in relation to access to work. It is therefore suggested that the Acts under

consideration be amended to provide for Copyright terms in all classes of works to last till

fifty years from the date of publication. It is also suggested that anti Copyright provision in

the U.S. Act such as the renewal of Copyright be expunged from this Act through immediate

amendment of the Act.

5.14 Copyright Enforcement Mechanisms

The Acts under consideration established Copyright enforcement mechanisms similar to

those established and provided for by the Nigerian Act. For instance, the U.S. Copyright Act

provides for the establishment of the „Copyright Office‟ headed by the Register of

Copyrights.

1194

The Act confers all administrative functions and duties similar to those

conferred on the Nigerian Copyright Commission on the Register of Copyright as the

Director of the Copyright Office; together with the subordinate officers and employees of the

Copyright Office who shall all be appointed by the Library of Congress.

1195

Unlike in

Nigeria, the Director of the Copyright Office and other officers of the Copyright Office are

all appointed by the Library of Congress. The Register is authorized to establish regulations

1192

Ibid. Subsection (2).

1193

Ibid. Sections 25-28, 28A & 29.

1194

U.S.C. Section 701.

1195

Ibid.

268

for the administration of the functions and duties of his office.

1196

Similarly, the Indian

Copyright Act provides that there shall be established for the purposes of this Act, an office

to be called the Copyright Office.

1197

The Copyright Office shall be under the immediate

control of the Registrar of Copyright who shall act under the superintendence and direction of

the Central Government.

1198

The Central Government may also appoint one or more Deputy

Registrars of Copyright.

1199

The Act also establishes the Copyright Board which decides

matters as to whether a work has been published, or questions as to the date on which a work

is published for purposes of Chapter XV of the Act; or whether the terms of Copyright for

any work is shorter in any country than provided in respect of that work under the Indian

Act.

1200

In fact, the Registrar, the Copyright Board and the Copyright Office exercise similar

powers vested on the Nigerian Copyright Commission and Copyright Licensing Panel under

the Nigerian jurisdiction.

1201

On the other hand, the English Act does not establish an

enforcement body equivalent to the Nigerian Copyright Commission. It rather confers wide

powers over Copyright matters similar to those conferred on the Nigerian Copyright

Commission, the Registrar, and Registrar of Copyright under the Nigerian, Indian and U.S.

Acts respectively, on the Secretary of State.

1202

It is not in doubt that the Copyright Office of the U.S. is better poised to combat piracy as a

result of the independence of appointment of their staff than its equivalents in Nigerian and

Indian. It is rather disappointing that an advanced nation like England has no such regulatory

body. Therefore, while suggesting that the Nigerian and the Indian Acts be Amended to

bring professionalism into the Commission and the Copyright Board and to eradicate the

1196

Ibid. Section 107.

1197

C.R.A.I. Section 9 (1).

1198

Ibid. Subsection (2).

1199

Ibid. Section 10 (1).

1200

Ibid. Section 74.

1201

Ibid. Section 12 (7).

1202

C.D.P.A. Section 116, 145- 150.

269

arbitrary appointment of its staff by the government; it is suggested that an enforcement

mechanism resembling the U.S. Copyright Office be establish in England.

It is observed that the provisions relating to Copyright Inspectors made by the Nigerian Act

are novel to Nigeria.

1203

The jobs of Copyright Inspectors are performed in the other

jurisdictions under consideration, by the police. Considering the feat achieved by Copyright

Inspectors in the enforcement of Copyright discussed in the last preceding chapter, it is

suggested that the other three Acts be amended along the line of the Nigerian Act relating to

the establishment of Copyright Inspectors.

It is well noted that the provisions of the Nigeria Act regarding Copyright licensing are

similar to those of the Indian Act, although the latter Act‟s provisions are wider in scope than

those of the former Act. The powers exercised in Nigeria by the Copyright Licensing Panel

with respect to the issuance of licenses are exercised in India by both the Registrar of

Copyright and the Copyright Board.

1204

The Indian Act expressly empowers the Central

Government to constitute a Board to be called „Copyright Board‟ which shall consists of a

chairman and two other members, and not less than two or more than fourteen other

members.

1205

The Copyright Board shall, subject to any rules that may be made under this

Act, have power to regulate its own procedure, including the fixing of places and times of its

sittings. The Copyright Board may exercise and discharge its powers and functions through

benches constituted by the Chairman of the Copyright Board from among its members, each

bench consisting of not less than three members.

1206

However, if the Chairman is of the

opinion that any matter of importance is required to be heard by a larger bench, he may refer

1203

Ibid. Subsection (3).

1204

C.R.A.I. Sections 31-32 A.

1205

Ibid. Section 11 (1).

1206

Ibid. Section 12 (1).

270

the matter to a special bench consisting of five members.

1207

It should be noted that while a

Licensing Panel established by the Nigerian Act does not have the powers a of a Court, the

Copyright Board of India is deemed to be a Civil Court;

1208

and all proceedings before the

Board shall be deemed to be judicial proceedings within the meaning of the Indian Penal

Code.

1209

The Act also confers on the Registrar of Copyrights and the Copyright Board

certain powers of Civil Courts viz:-

1210

(a) summoning and enforcing attendance of any person and examining

him on oath;

(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) issuing commissions for the examination of witnesses or documents;

(e) requisitioning any public record or copy thereof from any Court or

office;

(f) any other matter which may be prescribed.

Furthermore, disputes relating to assignment of Copyright are handled by the Board.

1211

The English Act established the Copyright Tribunal which shall be made up of a chairman

and two deputy chairmen appointed by the Lord Chancellor after consultation with the

Secretary of State; and not less than two or more than eight ordinary members appointed by

the Secretary of State.

1212

The Chairman of the Tribunal shall be an advocate and solicitor of

at least five years standing in United Kingdom. For purpose of any proceedings, the

Copyright Tribunal shall consist of a Chairman, who shall be either the Chairman or a Deputy

Chairman of the Tribunal and two or more ordinary members.

1213

According to the Act, the

Tribunal shall have the jurisdiction to:

1214

1207

Ibid.

1208

Code of Criminal Procedure, 1973, sections 345 and 346.

1209

Penal Code of India, sections 193 and 228.

1210

C.R.A.I. Section 12 (7).

1211

Ibid. Section 19.

1212

C.D.P.A. Section 145 (2).

1213

Ibid. Section 145 (2).

1214

Ibid. Subection 148 (1).

271

(a) determine royalty or other remuneration to be paid with respect

to retransmission broadcast under section 73 of the Act;

(b) hear an application to determine amount of equitable remuneration

under section 93 of the Act;

(c) hear matters relating to licensing scheme under sections 18, 119 or 120

of the Act;

(d) hear applications with respect to entitlement to license under the

Licensing Scheme (sections 121 or 122);

(e) determine matters relating to reference or application with respect to

licensing by licensing bodies (sections 125, 126 or 127 of the Act);

(f) to determine matters referred to it by Secretary of State under section

128A of the Act;

(g) hear matters referred to it with respect to the use as of right of sound

recordings in broadcasts (sections 135D or 135E) of the Act;

(h) determine appeals against order as to coverage of licensing scheme or

license (under section 139 of the Act);

(i) to determine applications to settle royalty or other sum payable for

lending of certain works (section 142); and

(j) determine application to settle terms of Copyright license available as

of right (under section 144 (4) of the Act).

The rules regulating the proceedings of the Tribunal are made by the Lord Chancellor after

consultation with the Secretary of State.

1215

Appeals from the Tribunal lies to the High Court.

It is in fact safe to conclude that even though there may be other licensing bodies as the

Secretary of State may by regulation provide, the primary duty of the Tribunal is to

administer the licensing scheme over and above any other body or bodies in the United

Kingdom.

1216

The U.S. Act does not provide for a body like the Copyright Licensing Panel, rather, the

rights exercisable by the Panel are exercised in this jurisdiction by the Copyright Collecting

Societies.

It is submitted that the powers conferred on the Secretary of State in relation to Copyright

licensing tantamount to enslavement of the Tribunal and its staff. It is further submitted that

1215

Ibid. Section 149.

1216

Ibid. Section 150 (1).

272

the Secretary of State wields more powers in the appointment of the members of the Tribunal

and in the performance of its functions. Thus, no matter how convincing the argument in

support of the failure to establish a body like the Copyright Licensing Panel may seem, it is

clear that enforcement of Copyright cannot succeed without such body being in existence. It

is suggested that the powers of the Secretary of State in relation to the Tribunal be curtailed

and vested in the English Copyright Commission to be created through immediate

amendment of the Act. It is also suggested that the U.S. Act be urgently amended to provide

for the establishment of a body like Copyright Licensing Panel.

It is apposite to state at this juncture that one of the enforcement mechanisms operating in the

jurisdictions under consideration is the Copyright Collecting Society. For instance, the India

Act provides that „no person or association of persons shall, after the coming into force of the

1994 Amendment of the Indian Act, commence or, carry on the business of issuing or

granting license in respect of any work in which Copyright subsists unless through a

Copyright Society duly registered under the Act‟.

1217

Furthermore, the Performing Rights

Society functioning in accordance with the provisions of the Act on the date immediately

before the coming into force of the said Amended Act,

1218

shall be deemed to be a Copyright

Society and every such Society shall get itself registered within a period of one year from the

date of the Commencement of the said Amended Act.

1219

Inspite of these laudable provisions,

an owner of Copyright shall, in his individual capacity, continue to have the right to grant

licenses in respect of his own works consistent with his obligations as a member of the

Registered Copyright Society.

1220

However, the business of issuing or granting licenses in

respect of literary, dramatic, musical and artistic works incorporated in a cinematograph films

or sound recordings shall be carried out only through a Copyright Society duly registered

1217

C.R.A.I. Section 33 (1).

1218

Ibid.

1219

Ibid.

1220

Ibid.

273

under the Act.

1221

Thus, in India, an individual right owner cannot grant a license in respect

of his work contrary to the position in Nigeria. The Indian Act further states that any

association or persons who fulfils such conditions as may be prescribed may apply for

permission to operate as a Collecting Society, to the Registrar of Copyrights who shall submit

the application to the central Government.

1222

The Central Government may, having regard to

the interests of authors, Copyright owners, the interest and convenience of the public and in

particular, of the groups of persons who are most likely to seek licenses in respect of the

relevant rights, and the ability and professional competence of the applicants, register such

association of persons as a Copyright Society subject to such conditions as may be

prescribed.

1223

However, the Central Government shall not ordinarily register more than one

Copyright Society to do business in respect of the same class of works.

1224

Such registration

is for a five years period and same is renewable.

1225

However, the Central Government may

refuse an application for renewal if it is satisfied that the Society is being managed in a

manner detrimental to the interests of the authors and Copyright owners concerned.

1226

It is therefore crystal clear that except for the provisions barring the Indian Government not

to register more than one Copyright Society that carry out business in the same class of

works, the Indian Act‟s provisions relating to Copyright Society are similar to the provisions

of the Nigerian Act on the same subject matter; including the administration of the Copyright

Societies.

1227

Thus, all the duties assigned by the Nigerian Act on the Nigerian Copyright

Commission and anybody set up by it for purposes of Copyright administration are

performed in India by the Copyright Board alone. This amounts to over labouring the Board.

1221

Ibid. Proviso to Section 33 (1).

1222

Ibid. Subsection (2).

1223

Ibid. Subsection (3).

1224

Ibid.

1225

Ibid. Subsection (3A)..

1226

Ibid. Subsection (4).

1227

Ibid. Section 34 to 36.

274

It is therefore suggested that the Indian Act be amended to reduce this burden placed on the

Copyright Board along the line of the Nigerian Act.

In England, Copyright Society is called the „Licensing body‟ which is charged with the

responsibilities similar to those discharged by Copyright Societies under the Nigerian Act.

1228

The English Act provides that the Secretary of State may by regulation provide for a

Licensing Body that applies to the Secretary of State to be authorized to grant Copyright

licenses in respect of works in which Copyright is not owned by the body or a person on

whose behalf the Body acts.

1229

The Secretary of State is conferred with wide powers by the

Act to make regulations for the proper administration of the licensing scheme.

1230

However,

any dispute arising from the administration of the scheme shall be referred to the Copyrights

Tribunal.

1231

It is submitted that the provisions of the English Act relating to Copyright

Society are not as elaborate and as proficient as the Nigerian and Indian Acts. The English

Act does not provide for a number of specialized bodies for the administration of the

licensing scheme as the Nigerian Act does. This will not make for efficient administration of

Copyright. It is therefore suggested that the English Act be urgently amended along the line

of the Nigerian Act.

It must be pointed out that the U.S. Act does not expressly provide for the concept of

Collecting Society, although this omission, this concept is well recognized under the U.S.

jurisprudence. The U.S. Act also provides for the appointment of Copyright Royalty Judges

whose duties include the determination and the award of reasonable royalties to be paid to

Copyright owners in line with the provisions of the Act.

1232

These judges perform the duties

similar to those of the Copyright Board of India.

1228

C.D.P.A. Section 116 (2).

1229

Ibid. Section 116B (1

1230

Ibid. Sections 116A-116B.

1231

Ibid. Section 118-120.

1232

U.S.C. Sections 114-119; 1004.

275

It is submitted that the failure to expressly provide for the establishment of Copyright

Societies by the U.S. Act is a grave omission which questions the credibility of the drafters of

the Act. It is therefore suggested that the Act be immediately amended along the line of the

Nigerian Act.

Another effective enforcement mechanism operating in the jurisdictions under consideration

is the Custom and Excise. It seems the Indian Act makes more elaborate provisions against

the importation of infringing copies of copyrightable works than the Nigerian Act. The Indian

Act requires an owner of a Copyright work or his agent to give notice in writing to the

Commissioner of Customs or any officer authorized in his behalf by the Central Board of

Customs and Excise that he is the owner of the Copyright in the work which is being

imported without his authority, with proof thereof and; that he request the Commissioner for

Customs for a specified period in the notice, which shall not exceed one year, to treat such

infringing copies as prohibited and that the infringing copies of the work are expected to

arrive in Indian at a time and a place specified in the notice.

1233

Upon scrutinizing the

evidence furnished by the right owner and upon being satisfied that the imported copies are

actually infringing, the Commissioner for Customs may subject to the relevant provisions of

the Act, treat the infringing copies of the work as prohibited goods that have been imported

into India.

1234

This will be done provided that the owner of the work deposits such amount as

the Commissioner for Customs may require as security having regard to the likely expenses

on demurrage, cost of storage and compensations to the importer in case it is found that the

works are not infringing copies.

1235

When any goods treated as prohibited are detained, the

Custom officer detaining them shall inform both the importer and the person who gave such

notice to the Customs of the detention of such goods within twenty four hours of such

1233

C.R.A.I. Section 53 (1).

1234

Ibid. Section 53 (2).

1235

Ibid.

276

detention.

1236

If the person who gave such notice does not produce an order from a Court

having jurisdiction relating to the temporary or permanent disposal of such goods within

fourteen days from the date of their detention, the Custom Officer detaining the goods shall

release them and they shall no longer be treated as prohibited goods.

1237

It is noted that unlike the Indian Act, the Nigerian Act does not state what happens to the

goods if the allegation of infringement is not proved. It does not also make mention of the

procurement of any Court Order after the detention of the suspected pirated copies. Above

all, the Nigerian Act mentions only unpublished works. This makes the provision of the latter

Act very narrow. An immediate amendment of the Nigerian Act is recommended to bring the

relevant provisions of this Act in line with the aforementioned sections of the India Act.

On the other hand, the U.S. Act permits seizure and forfeiture of works that violate Copyright

on works protected under Act.

1238

It also provides for the right of action regarding

importation of infringing copies of phonorecords and prohibits gray market of enforcement of

Copyright.

1239

In further attempt to fulfill its Statutory, Regulatory and Treaty based

obligations of preventing the importation of merchandise which violates certain claims to

Copyright which have been registered with the U.S. Copyright Office, the U.S. government

empowers the U.S. Customs and Border Protection Service to detain and/or seize pirated

copies of protected works.

1240

Thus, the U.S Customs can only act if the work is registered

with the U.S. Copyright Office. However, the owner of the work must request that Customs

collect and retain information relating to those rights for a specified time, during which the

Customs shall either of their own initiative, or with the assistance of the Copyright holder,

1236

Ibid. Subsection (3).

1237

Ibid. Subsection (4).

1238

U.S.C. Section 506.

1239

Ibid. Section 602.

1240

Article 2 of Custom Directive No. 2310-00 5B of December, 12

th

2001 of the United States.

http://www.cbp.gov>files>documents. accessed 10/10/2017.

277

actively monitor in order to prevent the importation of pirated articles.

1241

Besides these

provisions, the Law provides for the recordations of Copyrights with Customs.

1242

It further

provides for the seizure of such infringing articles.

1243

It also provides for the procedural steps

to be taken in cases involving possible Copyright violations; and for the demand for the

delivery of released merchandise.

1244

Again, the U.S. Copyright Act mandates the Secretary of Treasury and the United States

Postal Service to separately and jointly make regulations for the enforcement of the

provisions of the Copyright Act prohibiting importation.

1245

Any article imported in violation

of the importation prohibition of the Act shall be liable to seizure or forfeiture in the same

manner as property imported in violation of Custom Revenue Laws.

1246

It is submitted that there is clearly established evidence that the U.S. Customs are involved in

the enforcement of Copyright in the United States as is the case with Nigeria. It is only

suggested that these elaborate provisions of the Customs Directive and Regulations be

repealed and same provisions be incorporated into the U.S. Copyright Act through the

amendment of the latter. This will make for uniformity in the fight against piracy.

On the other hand, the English Act‟s provisions regarding enforcement of Copyright through

the Commissioner for Customs and Excise are similar to the provisions of the Indian Act

except that the duration of the notice under the English Act is five years as under the Nigerian

Act.

1247

Again, the importer of the infringing copy is liable, not for any other penalty but for

1241

Ibid. Article 2.2.

1242

Articles 133. 3, to 133 37 of Customs Regulations 19 CFR. of the United States,

http://www.cbp.gov>files>documents. accessed 10/10/2017.

1243

Ibid. Articles 133.

1244

U.S.C. Section 603.

1245

Ibid.

1246

Ibid.

1247

C.D.P.A. Section 111.

278

forfeiture.

1248

However, a Copyright owner can apply for an order of Court for the delivering

up of the infringing copies to him after the end of the period of six years from the date on

which the infringing copy was made.

1249

An application can also be made for an Order that an

infringing copy or other article be delivered up in pursuance of an Order provided by the Act

relating to Order for delivery up; or seized and detained in pursuance of the right conferred

under the Act relating to right to seize infringing copies and other articles.

1250

Upon such

application, such infringing copy shall be forfeited to either the Copyright owner, or be

destroyed, or otherwise dealt with as the Court may think fit.

1251

Another enforcement mechanism operating in the jurisdictions under consideration is the

Police. Under the Indian Act, a Police officer not below the rank of a sub-inspector, may if he

is satisfied that an offence under the Act in respect of infringement of Copyright in any work

has been, is being, or is likely to be committed, seize without warrant, all copies of the work,

and all plates used for the purpose of making infringing copies of the work, whenever found

and all copies and plates so seized shall as soon as practicable, be produced before a

magistrate.

1252

There is no doubt that these provisions of the Indian Act are more elaborate

and efficient than the Nigeria Act in that it contains Rules of Criminal Procedure for the

enforcement of Copyright by both the Police and the Custom Services. It does not require

additional recourse to any Penal or Criminal Code as is the case with the Nigerian Act. This

is because there is no lacuna in the Indian Act regarding Criminal Procedure in the Act.

On the other hand, the English Act empowers Local Weights and Measures Authorities to

enforce within their area, the provisions of the Act relating to criminal liability, ie, for making

1248

Ibid.Subsection (4).

1249

Ibid. Section 113 (1).

1250

Ibid. Section 114 (1).

1251

Ibid.

1252

C.R.A.I. Section 64.

279

or dealing with infringing articles.

1253

It is however, evident that as is the case with the U.S.

Act, the English Act does not contain provisions that expressly involve the police in the

enforcement of Copyrights. This is similar to the situation in the United States. This is

worsened by the fact that under the Acts Nigerian and Indian Acts, there are no laid down

procedures for the institution of criminal proceedings in the Copyright Acts. It is suggested

that these Acts be amended to incorporate the aforestated trial procedures, along the line of

the more elaborate Indian Act.

It is observed that the most effective enforcement mechanism operating in the jurisdictions

under consideration is the Court. The English Act confers jurisdiction on certain Courts to

entertain matters relating to infringement of Copyright. In England, Wales and Northern

Ireland, a County Court may entertain actions relating to delivery up of infringing copies

matters where the right owner and a Licensee have concurrent rights; and Order as to disposal

of infringing copies or other copies.

1254

In Northern Ireland, a County Court may entertain

such proceedings only where the value of the infringing copies and other articles in question

do not exceed the County Court‟s limit for an action in tort.

1255

In Scotland, proceedings for

an order under any of the provisions of the Act may be brought before Sheriff Court.

1256

However, nothing in the English Act shall be construed as affecting the jurisdiction of the

High Court or in Scotland, the Court of Session in relation to Copyright actions.

1257

These

Courts can award general damages and in appropriate cases, additional damages under the

conditions provided under the Act.

1258

In the same vein, criminal offences relating to

1253

C.D.P.A. Section 107A.

1254

Ibid. Section 115 (1).

1255

Ibid. Proviso to section 115 (1).

1256

Ibid. Subsection (2).

1257

Ibid. Subsection (3).

1258

Ibid. Section 97.

280

infringement of Copyright are to be tried under the Criminal Procedure Act of the various

nations of the United Kingdom as in other criminal cases.

1259

In India, every suit or other civil proceedings arising under Chapter XII of the Act relating to

civil infringement of Copyright in any work or the infringement of any other right conferred

by Act shall be instituted in the District Court having jurisdiction where either of the parties

resides.

1260

This Court may in cases of infringement of Copyright, grant relief by way of

injunction, damages, accounts and otherwise as may be conferred by law for the infringement

of right as in other tortuous actions. Similarly, no Court inferior to Metropolitan Magistrate or

a judicial Magistrate of the first class shall try any offence under the Indian Act.

1261

Appeals

from these Courts lie to the High Court of India which shall make rules of procedure

consistent with the Indian Copyright Act in respect of such appeals.

1262

Furthermore, each

offence under the Act has its punishment prescribed by the Act. Inspite of this development,

it seems that the Criminal Procedure Act of India applies to criminal infringement cases,

while in civil infringement cases, the Court will stick to Civil Procedure Rules operating in

India. It must not be forgotten that the Act confers the powers of a Civil Court on both the

Registrar of Copyright and the Copyright Board of India when trying cases under the Code of

Civil Procedure of India.

1263

In the United States, the District Courts have exclusive jurisdiction in any civil actions

relating to Copyright.

1264

However, where Copyright violation is by the United States or any

of its agents; or with the authorization or consent of the U.S. government, the Court with the

jurisdiction to entertain the matter is the United States Court of Federal Claims.

1265

Plaintiff

1259

Ibid. Section 108.

1260

C.R.A.I. Section 62.

1261

Ibid. Section 70.

1262

Ibid. Section 73.

1263

Ibid. Sections 94 & 95.

1264

Section 1338 and 1400 of Title 28- Judiciary and Judicial Procedure, U.S. Code.

1265

Ibid. Section 1498 (b).

281

must bring an action for infringement against the United States, or for recovery against the

United States within three years of the violation of Copyright.

1266

This limitation is also

applicable to all civil action for violation of the Copyright in such work.

1267

Similarly, except

as provided in the United States Act, no criminal proceeding shall be maintained against an

infringer unless it is commenced within five years after the cause of action arose.

1268

It is

however observed that it is only the United States Act that that provides for limitation of time

in relation to Copyright infringement actions.

It is submitted that these limitations obviously constitute a clog in the will of justice in

Copyright enforcement cases by legitimate Copyright owners. It is therefore suggested that

the United States Act be amended to delete this limitation of Action provision. It is further

submitted that it will be better to make provisions for the procedures to be followed in civil

and criminal cases involving Copyright infringement, as well as creating Copyright Courts

that shall entertain such Copyright cases. It is therefore suggested that the Acts be amended to

reflect these suggestions and to further provide for the appointment of judicial officers that

are well versed in Copyrights matters to man these Courts. This will also make for

expeditious disposition of Copyright matter pending before the Courts, thereby avoiding the

over congested cases and the attendant delay in regular Courts.

It must be pointed out that as discussed in the last preceding chapter of this research work in

relation to Nigerian Courts; the Acts of the jurisdictions under consideration empower the

Courts to grant a good number of reliefs in cases of Copyright violations in order to check

piracy.

1269

Therefore, there is no need for further considerations of these Acts in relation to

award of damages.

1266

Ibid. Proviso to Section 1498 (b).

1267

U.S.C. Section 508.

1268

Ibid. Section 507.

1269

C.D.P.A. Sections 96 and 97, U.S.C., Section 504, C.R.A.I. Section 55.

282

5.15 Copyright Enforcement and Technical Protective Measures

It must be stated at this juncture that the use of technical measures to protect works as fully

discussed in the last preceding chapter, are applicable in England, India and the United States

of America. Hence, there is no need to reconsider them herein. It must however be pointed

out that the development of these technical measures for the protection of Copyright is a huge

success. These measures have actually helped a great deal in attaining enhanced protection of

Copyright. It is also a fact that the emergence of these new technologies brought not only

opportunities, but challenges. This is because, even though protection is achieved through

these technological devices, it seems this method of enforcement is in conflict with the

express provisions of the Copyright Acts of the jurisdictions under consideration. It should

not be forgotten in haste that the basic principle of Copyright is to strike a balance between

the interests of creators and that of the society at large.

It has been stated that when new

interpretations are added to existing Laws of Copyright for protecting the rights of owners of

Copyright, it is but fair to consider the effects of such extensions on the interest of the

society, and wherever necessary to clarify the permitted acts.

1270

In line with this, the WIPO

Copyright Treaty; the WIPO Performance and Phonograms Treaty and its Directive require

member States to provide adequate legal protection against the circumvention of any

technological measures.

1271

Iftikhar observed that while the aforementioned Treaties refer

generally to technological measures that are used by right owners to restrict acts which are

unauthorized by them or by law, the Directive enters into more detail by referring to

„adequate legal protection against manufacture, importation, distribution, sale, etc., of the

device or the provision of services which facilitate circumvention‟.

1272

According to him, a

problem in the application of the technical protection measures concerns the position of

1270

T James, „Indian Copyright law and Digital Technologies‟, Journal of Intellectual Property,

Rights Vol. 7, September, 2002, 433.

1271

Article 11 of the WIPO Copyright Treaty; Article 18 of the WIPO Performance and Phonograms Treaty,

Article 6 (1) and (2) of the Directive.

1272

H Iftikhar, „Technological Protection Measures under Copyright Law‟, Op. Cit. 322.

283

persons who under the law, are by virtue of an exception entitled to reproduce or otherwise

use protected material for certain purposes, without the necessity of permission from

respective right owner, yet are frustrated in the attempt to benefit from the exception by the

presence of the technical protection measure.

1273

It is noteworthy that by the express provision of the Berne Convention, authors of literary and

artistic works protected by the Convention shall have the exclusive right of authorizing the

reproduction of these works, in any manner or form.

1274

Such rights are also conferred on

authors of dramatic, dramatico-musical and musical works.

1275

However, it shall be a matter

for legislation in the countries of the member States of the Berne Convention to permit the

reproduction of such works in certain special cases, provided that such reproduction does not

conflict with a normal exploitation of the work and does not unreasonably prejudice the

legitimate interests of the author.

1276

This provision actually laid the foundation for fair

dealing as codified in the Acts under consideration. This is also supported by the provisions

of the Convention which encourages free uses of works.

1277

Thus, it can safely be inferred

that not all acts of circumventions that will amount to infringement of Copyright. Member

States incur no obligation to prohibit circumventions that allow the user to exploit a work that

is already in public domain; or to engage in an act authorized by the right owner; or that

allows the user to engage in a non infringing act; or copying a work for purposes endorsed by

the relevant provisions of the Convention.

1278

In line with the Berne Convention and other

Treaties/Instruments on Copyright, most States of the world have domesticated the provisions

prohibiting circumvention of technological protection measures. For instance, the Nigerian

Act confers on the Nigerian Copyright Commission, the authority to prescribe any design,

1273

Ibid.

1274

Article 9 Berne Convention for the Protection of Literary and Artistic Works, 1896.

1275

Ibid. Article 11.

1276

Ibid. Article 9 (2).

1277

Ibid. Articles 10

1278

Ibid.

284

label, mark, impression or any other anti-piracy device for use on, in, or in connection with

any work in which Copyright subsists.

1279

The Commission shall exercise these powers with

the consent of the Minster charged with the responsibility for Culture.

1280

The Act also

prohibits the selling, renting or offering for sale, rent or hire, any work in contravention of the

prescription made under the Act.

1281

It makes such acts offences punishable on conviction

with an imprisonment for a term not exceeding twelve months, or both fine and

imprisonment.

1282

The Act further prohibits the importation into Nigeria, or being in

possession of any anti-piracy device, or any machine, instrument or other contrivance

intended for use in the production of the anti-piracy device.

1283

The Act renders such a person

liable upon conviction to a fine not exceeding Five Hundred Thousand Naira or

imprisonment for a term not exceeding five years, or to both such fine or imprisonment.

1284

The Act also bars any person from being in possession of, or reproducing or counterfeiting

any anti-piracy device without the consent of the Nigerian Copyright Commission and

renders such an offender upon conviction to a fine of Fifty Thousand Naira or a term of

imprisonment not exceeding five years, or to both such fine and imprisonment.

1285

What can be gleaned from this section is that the Nigerian Copyright Commission is

empowered to determine and dictate the kind of anti-piracy devices that can be used in

Nigeria with the consent of the Minister charged with the responsibility for culture.

Therefore, whether such device chosen by the Commission is ineffective or incapable of

ensuring adequate protection of copyrighted works is the sole business of the Commission.

The Commission is also empowered by the Act to make regulations specifying the conditions

1279

C.R.A.N. Section 12 (1).

1280

Ibid.

1281

Ibid.

1282

Ibid. Subsection (2).

1283

Ibid. Subsection (3).

1284

Ibid.

1285

Ibid. Subsection (4).

285

necessary to give effect to the purpose of the Act.

1286

There is no doubt that the only

justifiable reason for the inclusion of this provision in the Nigerian Act is to ensure that anti-

piracy devices which are most likely to conflict with the rights to fair use should not be

allowed into Nigeria.

It is submitted that the Nigerian Act does not make ample provision outlawing anti

circumvention devices. This encouraged piracy until the Cybercrimes Act was signed into

law in 2015.

This Act prohibits unlawful access to a computer system; acts hindering the

functioning of a computer system by imputing, transmitting, damaging, deleting,

deteriorating, altering or suppressing computer data or any form of interference with its

intended purpose.

1287

Violators of these provisions face imprisonment ranging from three

years to seven years, or fines ranging from Five to Seven Million Naira as the case may be, or

both fine and imprisonment.

1288

The Act also criminalizes the unlawful interception of

electronic messages; further misdirection of electronic messages; and unlawful interception

of transmission of data by technical means.

1289

It bars all manner of computer related forgery,

fraud, theft of electronic devices, altering or forgery of electronic signature etc.

1290

The Act

mandates the office of the National Securities Adviser to be the coordinating body for all

security and enforcement agencies under this Act.

1291

It also creates the Cybercrime Advisory

Council which formulates and provides general policy guideline for the implementation of

the provisions of the Act.

1292

Furthermore, the Act confers the Federal High Courts with the

inherent jurisdiction to try all offences under the Act.

1286

Ibid. Subsection (5).

1287

Cybercrime [Prohibition, Prevention, ETC], Act 2015, Sections 6 (1) & 8.

1288

Ibid.

1289

Ibid. Sections 10-12.

1290

Ibid. Sections 13-17.

1291

Ibid. Section 4l (l).

1292

Ibid. Section 43 (l).

286

It is submitted that the extent to which this Act would apply within a Copyright context is in

doubt. Agreed that the provisions of the Act contain fairly robust provisions that make it an

offence to use or make available „any devices primarily designed to overcome security

measures in any computer, computer system or network‟.

1293

It is crystal clear that this Act is

not a Copyright Legislation, but a criminal law which operates to curb cybercrime offences

flourishing in Nigeria. It will therefore not make much impact as far as Copyright is

concerned. It is suggested that a Digital Rights Management Law in the Nature of the Digital

Millennium Copyright Act of the United States of America be promulgated in Nigeria if

Nigeria is to totally eradicate piracy emanating from anti circumvention of technical devices.

In India, the use of technological measures used by Copyright owners to protect their rights in

the works and the possible circumvention of such measures were not addressed by any

legislation until the Indian Copyright Act was amended in 2012. This amendment introduced

a new section

1294

which provides for the protection of technological measures used by

Copyright owners.

1295

Thus, any person who circumvents an effective technological measure

applied for the purpose of protecting any of the rights conferred by the Indian Act, with the

intention of infringing such rights, shall be punishable with imprisonment which may extend

to two years, and shall be liable to fine.

1296

However, such prohibition shall not prevent the

doing of anything for a purpose not expressly prohibited by the Act.

1297

The Act provides that

any person facilitating circumvention measure for purposes of infringing the Copyright in the

work shall maintain a complete record of such other person including his name, address and

all relevant particulars necessary to identify him and the purpose for which he has been

1293

The U.S. Chamber International IP “Infinite Possibilities”, February 10, 2016. http://uschamber.

com>event>intl... accessed on 29

th

August, 2017.

1294

C.R.A.I. Section 65A.

1295

C.R.A.I. Section 65.

1296

Ibid.

1297

Ibid. Subsection (2).

287

facilitated.

1298

The Act exempts a person from liability if he does anything necessary to

conduct encryption research; or if he is conducting any lawful investigation; or he is doing

anything necessary for the purpose of testing the security of a computer system or a computer

network with the authorization of its owner or operator; or he is doing anything necessary to

circumvent technological measures intended for identification or surveillance of a user, or

taking measures necessary in the interest of national security.

1299

Thus, circumvention of anti-

piracy devices is allowed in India for purposes of fair use. However, unlike in Nigeria, there

is nobody or institution empowered by the Indian Act to prescribe any ant-piracy device to be

used in India. It will therefore work hardship to fair users of the work who may not access the

work as a result a sophisticated anti-piracy devices used on the works by rights owners. It

should be noted that by the wordings of the Act, it is only the circumvention of an effective

technological measure applied for purposes of protecting the work from infringement that

will amount to an offence.

1300

It is further noted that the Indian Act does not contain any

provision in relation to any person who imports material that is capable of circumventing any

anti-piracy device, machines or other contrivances into India, or any person being in

possession of any such circumventing device or machine. It does not also provide for the

consequences of such acts, or any punishment attached thereto. This may be „a grave

oversight‟ on the part of the Indian legislators. An Immediate amendment is therefore

suggested to bring the Act in conformity with International standards.

It is well noted that the Indian Act adequately protects right management information quite

unlike the Nigerian Copyright Act. Under the Act, it is an offence punishable upon conviction

to a term of imprisonment not exceeding two years.

1301

The Act imposes fine on any person

who knowingly removes or alters any rights management information without authority, or

1298

Ibid.

1299

Ibid.

1300

Ibid.

1301

Ibid. Section 65B.

288

distributes, imports for distribution, broadcasts or communicates to the public, without

authority, copies of any work, or performance knowing that electronic rights management

information has been removed or altered without authority.

1302

Any breach of the section

entitles the Copyright owner to seek civil reliefs against the infringer as provided under the

Indian Act.

1303

The scope of this provision seems to be very broad because the acts of access

control circumvention are also outlawed even if undertaken for control purposes, such as fair

use.

1304

The Act requires that the knowledge of the infringer that the work he deals on has

been removed or altered without the authority of the owner of the Copyright must be proved

by the prosecution.

1305

It is submitted that without the establishment of any regulatory body in relation to the

protection of technological measures renders the idea of technical enforcement and the

provisions relating thereto useless. It is therefore recommended that the Indian Act be

amended along the line of the Nigerian Act to appoint a body that will be charged with the

responsibilities of prescribing the anti-piracy devices to be used in India; and also to define

what the Act means by the phrase „in the interest of National security‟. This is because if this

term remains undefined, there will be an upsurge of illegal circumvention of anti-piracy

devices under the guise of national security.

In the United States of America, effect has been given to International Treaties such as WIPO

Treaties, by the passing into law of an Act which amended the U.S. Copyright Act by adding

section 512 thereto.

354

The D.M.C.A. prohibits the acts of circumvention of a technological

measure that effectively controls access to a work protected under this Act.

355

The Act also

prohibits a person from manufacturing, importing, offering to the public, providing or that is

1302

Ibid.

1303

Ibid. Proviso to Section 65 B.

1304

Ibid.

1305

Ibid.

289

primarily designed or produced for the purpose of circumventing a technological measure

that otherwise trafficking in any technology, product, service, device, component, or part

thereof, effectively controls access to a work protected under this title; or markets personally

or by proxy or in concert with another, any device used in circumventing a technological

protective measure that effectively controls access, knowing that such device has the capacity

to circumvent technical protection measure.

356

Thus, the D.M.C.A. prohibits tools that can be

used for circumvention purposes based on their primary design or production, regardless of

whether they can or will be used for non-infringing uses.

357

The Act further provides that a

technological measure effectively protects a right of a Copyright owner under this Act if the

measure, in the ordinary course of its operation, prevents, restricts, or otherwise limits the

exercise of a right of a Copyright owner under this Act.

358

This provision is a welcome

development as it clearly shows that it is only the circumvention of workable anti-piracy

measure that can ground an action for infringement. However, the D.M.C.A. does not in any

way define the term „technological measure‟ but merely states that „circumventing

technological measure‟ means to descramble scrambled work; to decrypt an encrypted work;

_________________________

354

355

Ibid. Section 1201(a)(1).

356

Ibid. Subsection (2).

357

Ibid.

358

Ibid. Paragraph (b).

or otherwise to avoid, by pass, remove, deactivate or impair a technological measure without

the authority of the Copyright owner.

359

The Act does not also define the term „effective

technological measure‟ as used in the Act. It is submitted that this omission will likely lead to

miscarriage of justice in infringement cases. It is therefore suggested that the Act be urgently

amended to define he relevant terms used in the relevant sections of the Act.

It is observed that the D.M.C.A. also creates a lot of exceptions in relation to circumvention

of

290

anti-piracy devices and affords a person accused of circumventing any anti-piracy device the

defence of fair dealings. For instance, it allows Nonprofit Libraries, achieves and educational

institutions to circumvent, a technological protection measure solely for the purpose of

gaining access to the work in order to determine whether the relevant institution wishes to use

it.

360

It also provides that Law Enforcement, Intelligence and other Government Agencies,

where authorized, are not subject to either the ban on acts of circumvention, nor the

prohibition of trafficking in circumvention technologies.

361

Furthermore, a person engaged in

reverse engineering of a computer program, having lawfully obtained a copy of that program,

is permitted to carry out acts of circumvention under a series of restrictive conditions.

362

Similarly, a person who embarks on encryption research is permitted to circumvent a

protective measure if the researcher has lawfully obtained a copy of the work; or the act is

necessary to conduct such encryption research and does not constitute Copyright

infringement; so long as the researcher had made good effort to obtain authorization before

the circumvention.

363

Again, protection of minors can justify an exception to the prohibition

on circumvention for a technology that has the sole purpose of preventing minors from

accessing materials on the internet.

364

The act of circumvention is also permitted where the

_________________________

359

Ibid. Subsection (3) (a).

360

Ibid. Section 1201 (d).

361

Ibid. Subsection 4 (e).

362

Ibid. Paragraph (f).

363

Ibid. Subsection (2) (c).

technological protective measure collects or disseminates personally identifying information

generated in the course of activities if certain criteria set by the Act are met.

365

The English Act expressly prohibits the circumvention of technical devices applied to

computer programs; as well as any effective technology of such nature applied to a Copyright

work other than a computer program in the same way the Indian and United States Acts

prohibit same.

366

According to the Act, it is an offence to carry out such circumvention or to

291

promote, achieve, market, manufacture, distribute, sell, let, hire, expose for sale or hire, any

facility that circumvents any such protective technological device.

367

The qualification for

protection of a protective device is that it must be effective in the sense that the use of the

work is controlled by the Copyright owners through an access control or protection process

such as encryption, scrambling, or other transformation of the work; or a copy control

mechanism, which achieves the intended protection.

367

It is a welcomed development that in

furtherance of its efforts to ensure technical enforcement of Copyright as advocated by

International Treaties and Conventions, the United Kingdom has enacted an Act that makes

provisions in relation to online/commercial communications; infringement of Copyright and

performers right, internet domain registries, the functions of the Channel Four Television

Corporation, the regulation of Television and Radio services, the regulation of the case of

electromagnetic spectrum; public lending right in relation to electronic publication, and for

connected purposes.

368

It is not in doubt that this Act is a Copyright legislation which

complements the enforcement of Copyright in other fields not properly covered by the

English Copyright Act. However, the Act falls short of D.M.C.A.

_________________________

364

Ibid. Paragraph (h).

365

Ibid. Paragraph (j).

365

C.D.P.A. Sections 296 & 2962A.

366

Ibid. Sections 296ZA, 296ZB & 296ZD.

367

Ibid. Section 2962ZF.

368

Digital Economy Act, 2010.

Having explored the enforcement of works through technological measures and the legality

of the measures under the relevant Acts of the jurisdictions under consideration, it is

submitted that once the legal protection of an effective technological protection measure and

Digital Rights Management System has been guaranteed by international law, as well as

national laws, nothing bars the massive deployment of various technological protection

measures in order to place restrictions on the use of copyrighted works by infringers. Over

292

time, the use of such technologies has considerably varied among individual types of

copyrighted works. Although in theory, there are no limits on the varieties of restrictions, at

least on the face of the Acts considered in this work. It is quite striking that only a limited

number of very similar restrictions are currently empowered for a wide range of copyrighted

works. Moreover, they are used only for some types of copyrighted works. The reason is that

they very well work with a few exceptions, for instance, in the cases of movies, digital

television broadcasts, and video games for video games consoles; but they have failed with

regard to music Compact Discs and unauthorized music downloading services so far. This

means that if an anti-piracy device is weak or ineffective, there is no need to break it with any

form of anti- circumvention device. Thus, if the work is accessed as a result of the porosity of

such protective device, it is doubtful if any offence will be deemed to have been committed.

It is therefore suggested that the Acts be amended to specifically mention the anti

circumvention devices to be used in the jurisdictions under consideration.

It is submitted that the D.M.C.A. is the best articulated legal instrument for the protection and

enforcement of Copyright through technological devices. It is suggested that the Acts of the

other jurisdictions under consideration be amended along the line of D.M.C.A. in order to

ensure effective enforcement of Copyrights. It is also suggested that uniform Copyright

Instrument in the forms of Treaties and Conventions should be made at the international

plane.

293

CHAPTER SIX

6.0 CONCLUSIONS AND RECOMMENDATIONS

6.1 Conclusions

Having examined the concept and origin of Copyright, the conflicting interests of Copyright

owners and the general public; as well as the protection and enforcement of these interests, it

is concluded that the Copyright Instruments operating in the jurisdictions considered in this

work have not done enough to protect Copyright and interests attached thereto. These legal

instruments also failed to achieve a holistic enforcement of Copyright by affording the

defence of innocent infringement to infringers. The U.S. Act also makes it mandatory to use

Copyright notices on works, failing which the defence of innocent infringement will avail the

alleged infringer. Furthermore, the Copyright Acts of the jurisdictions considered, especially

the English Act, contain too wide provisions in relation to the grant of compulsory licenses

which render Copyright enforcement very porous. Similarly, the Copyright terms contained

in these Acts are too long, thereby inhibiting access to work and in turn, creativity. On the

other hand, the U.S. Act provides for limitation of time within which some Copyright

infringement cases shall be brought, ie, three years in cases of alleged infringement by the

U.S. government; and five years in cases of criminal proceedings against infringers. It is also

concluded that the use of technical measures to enforce Copyright protection is restrictive of

public access to copyrightable works as the Nigerian and English Acts do not admit of fair

use in relation to protected works. Moreover, the Acts considered failed neither prescribed

the type of anti piracy devices to be used to protect works, nor mention the circumvention

devices that are outlawed by the Acts.

Again, the fact that Copyright is territorial in nature, quite unlike other international laws

such as international criminal law, renders it impossible to enforce Copyright protection

especially as it relates to digital media which are capable of being downloaded and

294

reproduced in any part of the world without the authority and knowledge of the right owner.

This is worsened by the fact that there are no National, Regional and International Copyright

Courts established with the powers to entertain Copyright matters involving nationals of

member States to the relevant Copyright Treaties and Conventions quite unlike the

International Criminal Court. Worst still, there are no procedural steps provided for by the

Nigerian, English and the U.S. Acts in relation to civil or criminal proceedings in cases of

alleged Copyright infringement, rather, recourse is had on the Civil and Criminal Codes

operating in these jurisdictions. Again, the Copyright laws of these jurisdictions do not make

adequate provisions that guard against online piracy which is the most dangerous form of

Copyright infringement of the 21

st

century.

On the other hand, there are no adequate enforcement mechanisms and institutions set up by

these Acts to combat Copyright infringement as effective as the Police and other Secret

Services in relation to crime. It is also true that the concept of fair use/fair dealings as broad

as it exists in the Copyright Acts considered herein militates against the rights of owners of

Copyright works in the sense that such wide concepts encroach on the legitimate rights of

Copyright owners where there are no checks and balances regarding the use of protected

works. For example, while the Nigerian Act allows the fair use of certain scarce works upon

the condition that they should be destroyed within a specific timeframe after such use, the Act

does not mention or establish any Body/Institution that will monitor the aforementioned

destruction. What this means is that while such works may be legally obtained in the name of

fair use, its use will fall outside the scope of fair use if such works are not destroyed within

the specified period. This may generate serious Copyright violations if such works are used

thereafter without the consent and authority of the Copyright owner.

295

6.2 Recommendations

There are a good number of steps that could be taken to totally eliminate Copyright

infringement in the jurisdictions considered. A strict adherence to the recommendations

discussed below will help a lot in achieving a holistic enforcement of Copyright by striking a

balance between the conflicting interests of authors and those of the general public.

(a) Amendment of the Acts

It is recommended that the Copyrights Acts of the jurisdictions considered be amended to

fully implement the provisions of World Intellectual Property Organization Obligations and

to create strong enforcement mechanisms as required by the World Trade Organization.

Tough anti-piracy provisions should also be introduced into the Act. Most importantly, the

Amended Acts should incorporate hasher punishments for Copyright infringement. The

Amended Acts should repeal the provisions on limitation of action and the defence of

innocent infringement. The wide range of fair use provisions should also be curtailed to only

the excusable acts that can be overseen and managed by Copyright Enforcement Agencies to

be established by the Acts. Again, model provisions on compulsory licenses similar to those

contained by the Nigerian Act should be introduced into the other Acts considered in this

research work.

(b) Establishment of Copyright Enforcement Units as a Department in the Law

Enforcement Agencies

There is need to introduce a Copyright Enforcement Units as a department in each of the

Law Enforcement Agencies in Nigeria such as the Police, International Police, Civil Defence

Corps, the Customs Service, State Security Services, the Army, Navy, Air Force, etc. This

will ensure that all hands are on deck in combating Copyright violation.

296

(c) Establishment of Nigerian Copyright Commission in the Local Government

Areas

Nigeria is a very large country and the most populous nation in Africa. It is believed that

Copyright violators are in all the nukes and crannies of Nigeria in their numbers. It is

therefore necessary to establish branch offices of the Nigerian Copyrights Commission in the

Headquarters of all the Local Governments in Nigeria.

(d) Anti-Piracy Legislative Measures

No matter how good a law is, without effective enforcement mechanism, it will be a toothless

bulldog. Thus, because the enforcement of Copyright remains the basis of the protection for

the various digital technologies, adequate administrative measures should be adopted by the

Nigerian Copyrights Commission for the protection of Copyright in digital works. The

Federal Government of Nigeria should work with various International Organizations,

Market Authorities, Trade Unions, etc, to ensure that any infringing copies of pirated works

and other adverse digital innovations are confiscated and all contributors to the act, severely

punished. Legislative measures should be adopted to take care of the increasingly new

species of digital innovations that aid Copyright violations. In doing so, the legislators should

widely consult experts in the fields of Information Technology, Copyright and Computer

Technology, in order to acquire the technical knowledge that would expose the intricacies

involved in the circumvention of digital technologies that protect works. More regulatory

bodies that will be charged with the responsibilities of ensuring the enforcement of the laws

so made should be established. The Nigerian Government should enact legislation that every

television sold in Nigeria must contain V-Chip which is now used to monitor broadcasts in

the United States. This kind of legislation should be made for technological protection of

copyrightable works. It is further recommended that in the fields of digital broadcast by cable

satellite transmission, Copyright owners should adopt some tough technological measures to

check unauthorized use of their transmission, for example, the use of digital signature and

297

key encryption, such that only legitimate receivers would be given the activation code to

decipher the encrypted work.

(e) Social Measures

Adequate Copyright awareness should be created to carry the Nigerian populace along. The

social measures to be adopted include the enlightenment and awareness campaigns to the

grass root level. This is achievable through commercial ringlets and advertisement in

televisions and radios in such a manner that even a layman in the street would be able to

understand and appreciate the meaning and purport of Copyright Law, the dangers associated

with piracy, as well as the risk of patronizing infringers. The Nigeria Copyright Commission

should establish a social helpline that would enable an ordinary Nigerian to report seemingly

obvious cases of Copyright infringement to it. Monetary reward should be paid to such

whistleblowers if their reports prove to be true at the end of the day. There should also be an

improved public education of the concept, nature and protection of Copyright to the citizenry,

no matter their levels of education. This should be by way of seminars, workshops,

conferences, radio and television broadcasts, and by the introduction of Copyright as a course

in the curricula of Primary, Secondary and Tertiary Institutions.

(f) Judicial Measures

Owing to the intricacies associated with Copyright cases, the Federal Government should set

up Copyright Court in the country. This Court shall be saddled with the responsibilities of

discharging expeditiously cases relating to Copyright in the manner adopted by the Nation

Industrial Courts in cases involving labour law. By doing so, only judicial officers who are

versed in the field of Intellectual Property, especially Copyright should be appointed judges

of the Copyright Courts. Again, the technicalities involved in Copyright cases which tend to

militate against expeditious disposition of pending Copyright suits should be abandoned

pursuant to the Copyright Enforcement Rules to be made for this purpose. It is also

298

recommended that, Regional and International Copyright Courts should be established to

tackle Copyright infringement at the international plane.

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