The Nigerian Copyright Commission and Administration of Copyright in Nigeria
CHAPTER ONE
OBJECTIVES OF STUDY
The pivot of this study is to consider the roles of the Nigeria Copyright Act as regards works to be protected therein.
Also to be considered is the aspect or rather functions of the Nigeria copyright Commission (NCC) as regards the aggressive steps taken to curtail infringement and consider the possible remedies for infringement when it occurs.
CHAPTER TWO
COPYRIGHT IN NIGERIA
INTRODUCTION
The Nigeria copyright law was modeled after that of England copyright law as provided for within the Copyright Act[1] which eventually was extended to the Northern Nigeria protectorate and the Southern Nigeria protectorate by order-in-council.
The Nigerian Copyright Act has made some provisions that call for the attention of legal practitioners and courts. These provisions in the said Act which will be elaborated upon this part of this work not only created criminal liability for certain infringements of the provisions of the Act but also cast the burden of proof of innocence on the offender. This type of Legislation should attract the attention of practitioners for the simple reason that it is unconventional in criminal prosecution to place the burden of proof of innocence on the accused. The universal practice is to presume an accused not guilty until the contrary is proved. After taking a deep look at the provisions of the Act, we proffer suggestions as to the sections thereof that need to be amended to bring them in line with the constitutional provision dealing with presumption of innocence in criminal prosecution. The importance and pre-eminence accorded to copyright in the protection of intellectual property all over the world, has made it imperative for us to have a look at our own local legislation to enable us see whether we are moving with the realities of the modern commercial world. It is an old saying that ‘no man is an island’
In this season of ‘Vision 2011’, it is appropriate to call the attention of the law makers to this piece of legislation to enable them proffer a long lasting solution, by taking another look at the provisions of the Act. According to the Copyright Act Cap 28 Laws of Federation of Nigeria 2004 [2] (hereinafter referred to as the Act) the word Copyright ‘means copyright under this Act’. In more homely language, copyright can be defined as the title which an author has to the protection of his intellectual property. It delimits the uses and how a third party can use the title an author has in his work.
HISTORICAL ORIGIN
The formalization of the protection of copyright is a byproduct of the medieval period. It was born out of the general rise of monopolies in various fields from which patents and trademarks were born. The main difference between copyright and the aforementioned concepts is that whereas patents and trademarks deal with tangible matters, copyright deals with intangible subject. The first formalized attempt in Nigeria to codify any law relating to copyright was in 1970. Prior to that time, copyright matters were governed by the rules of Common Law and the provisions of the Copyright Act 1913. Sections 16 and 18(1) of the Copyright Decree of 1970[4] expressly provided for the exclusion of the rules of Common Law dealing with Copyright and the repeal of the United Kingdom Act of 1911 in so far as it applied to Nigeria. Decree No. 61 of 1970 has nineteen sections and three schedules. It must be noted that there are two principal Conventions in the world that govern copyright Convention and the Universal Copyright Convention to which Nigeria was a signatory. The above was the position of our law on the topic of copyright before the promulgation of the Copyright Act Cap 28 LFN 2004. The Act expressly repealed the 1970 Copyright Decree and sections of the Criminal Code. We shall now examine in passing the provisions of the Act for a better understanding of the remedies available to a breach of its provisions.
CHAPTER THREE
ADMINISTRATION OF COPYRIGHT IN NIGERIA
INTRODUCTION
The Copyright Act (as amended) established the Nigerian Copyright Commission, a body corporate with perpetual succession. The commission is responsible for all matters affecting copyright in the country as provided for in Act. It is empowered to monitor and supervise Nigeria’s position in relation to International Conventions and advice government on these, advise and regulate conclusions of bilateral and multilateral agreements between Nigeria and any other country, enlighten and inform the public on matters relating to copyright, maintain an effective data bank on authors and their works and be responsible for such other matters as related to copyright in Nigeria as a Minister responsible for culture may, from time to time direct. The commission has a governing board with Chairman, the director of the commission and twenty-three other members representing various interests related to copyright. The commission has a director who is the chief Executive and for the day-to-day administration of the commission.[1] The commission has power to appoint and has appointed other staff. In particular the commission has the power of introducing examination etc by the Act.[2] The office of the commission is presently at Aloba Street, Ebute metta, Lagos.
The power of the commission to grant compulsory licenses is exercised through a Copyright Licensing Panel and in accordance with laid down procedure. On the side of rights owners, because of the tremendous difficulty or, indeed, impracticability, of an individual rights owner been able to adequately, if at all monitor or otherwise manage the use of his of work, the Act[3]not only makes provision for machinery for collective administration of owners’ rights but also empowers the Nigerian Copyright Commission to assist in the establishment of such machinery.[4] The Commission is empowered to approve a collecting society where it is satisfied the society is incorporated by guarantee, that its objects are to carry the general duty of negotiating and granting licenses and collecting royalties to its members and that it represents a substantial members of owners of copyright in any category of works.[5] It is unlawful for association of person to purport to perform the functions of a collecting society without the approval of the Commission.[6] To do so is an offence punishable with a fine of imprisonment.
CHAPTER FOUR
INFRINGEMENT AND REMEDIES
INTRODUCTION
The Blacks’ Law Dictionary defines infringement as. ‘A breaking into, a trespass or encroachment upon, a violation of a law, regulation, contract or right –used especially of in various of the right secured by patents, copyrights and trade marks’[1]
Infringement of copyright; ‘unauthorized use of copyright material, that is, use without permission of copyright holder’ i.e. the unauthorized or prohibited use of works under copyright, infringing the copyright holder’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. [2]
However, the Act of 2004 [3] gave a concise definition of the term infringement as; The doing without requisite permission of the owner of copyright of any act, the doing of which is controlled by copyright. But then the recent Act on copyright was more detailed in its definition of the dispute term[4]
When considering a copyright, the question that is often upper most in one’s mind is whether there has been an infringement i.e has the potential defendant unlawfully appropriated some right or property belong to the potential plaintiff. However, before that question is answered it is necessary to ascertain, whether or not the prospective plaintiff has any right in the nature of copyright. As we have seen in the previous chapter, the subsistence of a copyright requires (A) The work be of a certain type, (B) The creator of the work is a qualified person; (C) the ownership of (at least) the equitable be in the possession of the prospective plaintiff; and (D) copyright still subsist and has not expired.
It would interest us to know that the state of mind of the person infringing is immaterial in the determination of the issue whether there had been an infringement or not,
more importantly is weather truly the act was carried out. In essence the Actus- Reus is most primary to the act of infringement than the Mens-Rea, which is a mere state of mind or intention.
Thus, in Plateau Publishing Company Ltd V Chief Chuks Adophy [5]. The only point where it seems the intention of the person infringing would be relevant is only in determining the question whether damages will be award of whether an enquires as to profit will be ordered.
CHAPTER FIVE
GENERAL CONCLUSION
CONCLUSION
Having dealt extensively with the topic at hand: The Nigeria Copyright Commission And Copyright Administration In Nigeria: An Appraisal, running through from chapters 1-4, wherein the concept itself is defined and its origin in brief narration and the nature of work to be protected asserted and those works eligible for such protection discuss alongside with the scope of this protection and not bearing in mind the concept authorship and ownership of copyright works, and the duration of time allocated for the protection of these works as well as the exceptions to these protected works considered. In the same light considered is the transfer of copyright works giving me the undoubted believe that copyright is no more a strange concept to any novice interested in this field of study.
The theme of which has gathered these various contributions to make a whole piece; Nigeria Copyright Commission (NCC) whose structure duties has extensively discussed alongside the collecting societies and functions of the inspectors that are seemingly subsidiaries commissioned to act by this commission. Note importantly that infringement of the works, regardless of all measures to maintain it sanity in the industry however rejoicing on the various remedies available for the aggrieved loading us to making recommendation to help improving this industry, is a clear case of an assiduous effort employed in the discuss of this study.
RECOMMENDATIONS
From all indication, industrialization in Nigeria has almost attained its peak and the need to ensure the safety industrialist is of paramount importance, particularly in the area of copy work, which over the year has proven to be the easiest prey of all and as become a thing of great concern for this growing industry.
However, to see to the full protection of this industry some machineries has to be put in place. Thus, that the following issues should be considered .
- The need for a Nigeria Copyright Commission Act, Stating expressly its structure, aim s and objectives. This would grant more potency to the responsibilities apportioned the commission in the Act.
- That a Body or a Task Fore be set up to look into the unlawful act of piracy.
- That it be made mandatory for professional musicians to register with PMAN as a condition for practice. In this way better statistics will be kept, and the rights and discipline maintained.
- That a ‘body be set up fully empowered with the task of collecting and distributing mediaeval , broadcasting and public performance loyalties throughout Nigeria. This could be in the form of the Mechanical and Copyright Organization of Nigeria (MCON)
- That mechanical royalties be set up by the law (Nigeria Copyright Act when enacted) at a minimum of 10% of producers published price to dealer (PPD)
- That minimum artist royalties be set up by law (NCC) at a minimum of 14% of producers published price to dealer (PPD) at 75% and 25% respectively.
- For broadcasting and public performance, royalties’ in the case of sound recording should be legislated to cover not only song writer/ composer and publisher but performers and record producer as well.
- That collecting societies should be adequately registered with the Nigeria copyright commission. Importantly, all that has been mentioned above should be subject to the Nigeria copyright commission Acts when enacted. The emphasis of the establishment of this act is not farfetched. The commission’s scope of powers and duties has been restricted within copyright Act and this is very much unhealthy for the easy performance of it function i.e. the cumbersome task as to administration of the copyright in Nigeria. Again, by ascribing a statutory status to it, would definitely send some fear down the spine of a lot of privates thus, working the industry of these unwanted and most dangerous quest.
REFERENCES
- Akanki E.O, Commercial law in Nigeria. (Unilag press) 2007
- Carlos M. Correa and Abdulqawi A.Yusuf. Intellectual Property and International Trade; the trips agreement. (2nd Edition Doubleday and Company,Inc 2008)
- Cornishn W.R, Intellectual Property (Sweet and Maxwell Ltd London) 3rd Edition 1999.
- David Bainbridge, Intellectual property (4th Edition The Claucer Press 1999)
- Della Summers, Direction Longman Dictionary of Contemporary English. (New Edition Pearson Longman 2000).
- Henry Cambell Black, Black Law Dictionary, (6th Edition, published by Butterworth and company limit.1891-1991)
- Hilary & Clifford Miller, Commercial Exploitation of Intellectual Property (Black Stone Press Limited).1990.