© Springer International Publishing Switzerland 2015Brian Fitzgerald and John Gilchrist (eds.)Copyright Perspectives10.1007/978-3-319-15913-3_7
7. Evolution and Future Trends of Copyright in Nigeria
Thomas More Academy of Law, Australian Catholic University, 486 Albert Street, East Melbourne, VIC, 3002, Australia
Nigerian Copyright Commission, Abuja, Nigeria
This chapter was first published in the (2014) Journal of Open Access to Law Vol 2, No 1 and is reproduced by kind permission of the publisher.
Creativity gives expression to the ideas in the human soul. Every culture reveals an intrinsic part of itself through the creativity of her people. The Director of the Museum of Fine Arts in Boston commenting on some Nigerian artistic works said “These objects are the Benin Kingdom’s legacy to the world and a testament to the brilliance and creativity of its artists”.1 The works he referred to were 34 in number, 28 made of bronze and 6 of ivory and are currently displayed at the Benin Kingdom Gallery of the Museum of Fine Arts in Boston.2 These works include what the gallery describes as “Horseman, Battle Plaque, Double Gong, and Oba Dominating Leopards”.3
Seating in another Museum outside the shores of Nigeria is a bone ivory sculpture known as the Queen Mother Pendant Mask-“Iyoba”. Iyoba is a sculptured work of Idia, who was the Queen mother of Oba Esigie, an ancient monarch of the Bini’s now part of the people of Nigeria and located in Edo State in the mid-western part of Nigeria.4 The sculptured work dates back to the sixteenth century and its presence at the Metropolitan Museum in London serves as a reminder to the world of the creative genius of Nigerians.5
Nigeria is a country with over, one hundred and sixty (160) million people, 500 ethnic groups, two hundred and fifty (250) local languages (however, English is the official language), thirty-six (36) states, a Federal Capital Territory (Abuja) and seven hundred and seventy four (774) local government councils. It is the most populous African nation and the seventh most populous in the world.6 It has a dual mixed culture, one from its traditional background and the other from its British colonial heritage. Her people are distinct in culture, tradition, belief and religion and it is these differences that bring about an enriched cultural diversity and a uniqueness in the expression of her creativity.
Nigeria’s rich cultural diversity plays a key role in the creative expressions of her people and has a strong influence on the copyright based works created by Nigerians. The rise in the Nigerian entertainment industry, popularly known as Nollywood has put Nigeria on the limelight both in the music and film industries. It is therefore not surprising that Nigeria’s film industry has been rated as the third largest in the world after Hollywood of the United States and Bollywood of India.7 These creative works continue to lay credence to the creative capabilities of Nigerians and underscores the need to encourage further creativity by putting in place a strong and viable copyright system.
Creativity is the bedrock of every civilization and it encourages the transformation of ideas into tangible products such as articles, books, pictures, films, drawings, music, poems and drama amongst several other things. Appreciation of the value of these tangibly expressed ideas often lead to commercialisation of the products. This was the situation that occurred in the United Kingdom when printers were enabled by the invention of the printing press to commercialise the writings of popular authors.8 This practice by printers to commercially exploit the literary works of authors must have been due to the fact that printers recognised an appeal by the general public to some works and that such works if mass produced could be commercially viable. The challenge was that commercialisation of these works meant reproduction of the works and this was done without the consent of authors and apparently, with no financial benefits accruing to them. This practice gave rise to complaints and agitations which brought about the introduction of the first copyright law to protect the rights of authors to their literary works by the grant of exclusive rights to the work, for a specified period of time.9
Since the passage to law of the first copyright legislation, the Statute of Anne,10 many copyright laws have been passed by national governments and the international community.11 These laws underscore the importance of copyright and rights related to copyright also referred to as neighbouring rights to national and socio-economic development. Nigeria is one of the nations with copyright legislation12 and plays her role within the international copyright system.
7.2 What Is Copyright?
Before venturing into the historical perspective of how copyright began, it would be useful to understand the term copyright. Copyright is a legal system that protects the creative outputs of authors by granting them exclusive rights to control the use of their creations for a limited time, subject to certain limitations, exceptions and statutory licensing arrangements allowing use and exploitation without the author’s consent. Copyright is one of the two major heads of the field known as Intellectual Property and Intellectual Property has been defined by the World Intellectual Property Organisation (WIPO) as “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce”.13 Whereas, inventions, symbols, names and designs used in commerce are majorly under the other head of Intellectual Property known as Industrial property; copyright covers literary, artistic, musical and dramatic works. It also covers under a copyright related rights regime, broadcast, sound recording and cinematograph film works.
Two purposes will be considered, economic and moral. With regards to the economic purpose, copyright encourages creativity and provides a legal regime for recouping investments put into products of creativity by granting authors exclusive rights to control the exploitation of these products for a specified period of time.14 On the moral side, copyright protects the integrity of the created work by giving the author the right to object to any distortion, mutilation or other modifications which would be prejudicial to his honour or reputation.15
In achieving the economic and moral purposes of copyright, the copyright system as a whole strives to provide balance between the interest of the author and that of the user. Copyright therefore aims to ensure that the public has some form of access to the products that have been created. After all, the whole essence of externally expressing an inward idea is for public appreciation, maximal utility of the expressed idea and for the betterment of mankind.16 Copyright is therefore meant to play some form of balancing role; that is, balancing the proprietary economic interests of the author in exploiting his created works against that of the public, to wit, accessibility to such created works by the public.
7.2.3 No Formality Required
Once a work is created, copyright is automatically conferred and its enjoyment and exercise is not subject to any form of formalities. This no formality standard for conferment of copyright stems from a series of meeting which resulted in the Berne Convention, where it was agreed that no formality requirement be placed on the exercise and enjoyment of copyright.17 In other words, once a work has been created, it ought to enjoy the protections conferred by copyright without the need to comply with formality such as registration. It is however important to note that certain countries practice some form of registration or recordation systems for copyright but none of them make it a prerequisite for the conferment of copyright.18
7.2.4 Recordation System & Notification Scheme
The United States Copyright Law has a recordation system which requires registration of copyright, but it clearly notes that registration does not prevent automatic conferment of copyright once a work has been created.19 However, in the event of copyright infringements, works originating in the United States but which have not been registered cannot be filed in respect of an infringement suit and are therefore not eligible for enforcement except they are registered.20
Nigeria also has a recordation system called the Notification Scheme.21 It is not a mandatory registration scheme but rather a platform to enable authors give notice of the existence of their work in which copyright subsists. Unlike the recordation system in the United States, failure by a copyright owner to notify the Nigerian Copyright Commission through the notification scheme on the existence of a work does not affect the right of a copyright owner to commence an action in respect of an infringement suit requiring enforcement. This scheme takes its source from one of the mandates of the agency responsible for regulating and administering copyright in Nigeria.22 The Nigerian Copyright Commission (NCC), established by virtue of Section 34 of the Nigerian Copyright Act is responsible among other things for maintaining an effective data bank of authors and their works. The Notification Scheme is the mechanism through which records of authors and their works are received and through which the databank is maintained. The Commission’s Notification Scheme will be discussed later in the chapter.
7.2.5 Idea Expression Dichotomy
Copyright does not protect ideas and discoveries but may protect the form in which they are expressed. For a work to be eligible for copyright protection it must show that sufficient effort has been expended on making the work to give it an original character. The work must also be in a fixed and definite form.23
7.3 Historical Perspective
7.3.1 King Diarmund & Statute of Anne
The history of copyright law cannot be told without reference to the Statute of Anne and truly the Statute is an important reference point to the legal expression of copyright but in reality copyright predates the Statute of Anne and has a longer historical origin than 1710. The Declaration by King Diarmund while passing judgement in respect of the dispute between Finnanin and Columcille in the sixth century in Ireland is said to have ushered copyright into the world.24 The issue that lead to the declaration was that Finnanin accused Columcille of copying his Bible without his permission and requested that Columcille return the copied work to him. Columcille pleaded in defence that the copy made from the original copy did not take anything away from the original copy and hence no wrong could have been done. In making his decision, King Diarmund declared that “to every cow her calf; and to every book its copy”.25 This declaration set in motion the principles that protect works of creativity and established that creative works and in this case, a book had the right to enjoy protection against unauthorized exploitation. This same principle has provided guidance in the development of copyright through the ages even to this present day.
7.3.2 English Copyright Act 1911
Nigeria’s copyright history is deeply connected to that of the United Kingdom because of the colonial linkage. Nigeria’s copyright history can be traced from two perspectives. The first traces the history to economic and political interests by the United Kingdom which could have been linked to the growing dependence by Nigerians on literary, artistic, musical and other copyright related works originating from the west. During Britain’s colonial rule over Nigeria which lasted for 60 years,26 a new copyright law replacing the Statute of Anne was passed and by virtue of the extension order in council of 1912 of the English Copyright Act of 1911, the English copyright law became applicable in the Southern Protectorate of Nigeria. The introduction of the English copyright Law to Nigeria represents the first perspective. The second is of the opinion that copyright has been and is an intrinsic part of the customs and traditions of the people of Nigeria. This view points to the practice where dancers and singers pay homage to their ancestors and predecessors in the trade before they commence their performances. The intent for acknowledgement is the traditional believe that if the current performers desire to succeed, homage must be paid to their ancestors and predecessors in the trade and such homage will attract the requisite blessings. They also point to the practice where money, gifts, refreshment and other forms of remuneration is given to the performers in appreciation and recognition of their performances.27 All these practices go to the root of the modern copyright concepts of moral and economic rights. Both perspectives support the importance of respect, appreciation and some form of remuneration for the efforts of those who have produced creative works. It is without contention however that the extension of the English Copyright Act of 1911 to Nigeria in 1912 introduced into Nigeria’s legal system, a copyright legal framework.
The introduction of the English Copyright Act of 1911 (hereinafter referred to as CA 1911), in Nigeria made very little impact on the ordinary Nigerian’s day to day life and this was probably due to cultural differences between the people that originated the CA of 1911 and those to whom it was now being applied in Nigeria. At the time of the enactment of the CA 1911, writing had become a way of life in the United Kingdom, expressing ideas be they original or non-original in fixed tangible forms had become the general mode of communication and constituted important elements in the ‘fixation and originality’ requirements for what would qualify as a copyright work.28 In Nigeria however, the predominant mode of communication at the time was through verbal and non-written modes. Information was passed down from one generation to the other verbally, that is through word of mouth. Songs were composed and given life not by being written down but by it being sung. Many a times, singers pick up their inspiration while performing and songs are delivered extempore. The audience is the only living evidence that the songs exist. Excluding sculptures and other artistic works which were naturally expressed in fixed form, musical and dramatic works were expressed verbally and were rarely expressed as literary works.29
Furthermore, the Nigerian tradition that favours communal ownership and encourages the spirit of camaraderie and free sharing was at variance with the individualistic and proprietary nature of the modern concepts of copyright. In the eyes of the ordinary person, the laws did not exist and would have been regarded as just another administrative process introduced by the colonial masters. The Act however provided the first legislative framework for Nigeria’s administration of a copyright system and provided the basis for further development of copyright laws in Nigeria. This Act continued in force through independence in 1960 until 1970 when the first indigenous Copyright Act was promulgated.
7.3.3 The Copyright Act, 1970
The 1970 Act was passed as a decree on the 24th day of December in 1970 under the then General Gowon led military government of Nigeria. The legislation had twenty (20) sections and three (3) schedules. It provided for works eligible for copyright, conferment of copyright, nature of copyright in certain works, first ownership, assignment and licensing, infringement and actions for infringement. The Act provided powers for the appointment of a competent authority to resolve copyright licensing conflicts but the said powers were never activated throughout the life of the legislation.30 Nigeria being a party to the Universal Copyright Convention (UCC)31 provided for reciprocal extension of protection and placed restrictions on importation of printed copies. Reliance on copyright deriving its source from common law rights were abrogated and the enactment allowed for the making of regulations to fill any lacuna which the enactment left out or which may arise. The sections providing for repeals, transitions and saving provisions as well the interpretations and citation sections were the last three sections.
The First Schedule to the Act provided for the term of copyright and interestingly reduced the term of copyright from 50 years after the death of the author as reflected in the earlier CA 1911 legislation to 25 years for literary, musical and artistic works. For photographs it provided for 25 years after the end of the year in which the work was first published in contrast to that of the CA 1911 which provided for 50 years from the making of the original. That amounted to a 25 years reduction.
The Copyright Act 1970 being the first indigenous act was expected to protect the Nigerian interest and be reflective of the peculiarities of her people as well as their culture and traditions. This may have accounted for why it cut down the term of copyright to 25 years from 50 years, after all the Nigerian traditional culture is more disposed to a culture of sharing as opposed to the proprietary system. The cut down has however been viewed as a negative move in that the Nigerian copyright owners expected to have retained at least the same rights provided by a non-indigenous legislation and that the indigenous legislation would provide enhanced and more favourable rights, instead it cut down on the term of copyright and was in general terms a watered-down version of the English Copyright Act of 1911. The Act while making provisions on copyright failed to designate any particular authority to oversee copyright issues in Nigeria. The legislation was basically a lame duck and at this time the local copyright based industry in Nigeria was beginning to grow and required a firm policy structure to support this local industry from a local and international perspective.32 Concerns about the lacuna in the 1970 Act led to agitation in the copyright based industries which eventually led to the 1988 Copyright Act. Okoroji captured the frustration succinctly when he said
The very weak provisions of Decree No 61 of 1970, the copyright law then in force, was identified as the major obstacle to effective confrontation of the copyright problem. The civil provisions were cumbersome and had many loop holes… The criminal sanctions… were laughable. There was no provision for any imprisonment. There was therefore very little legal deterrent against piracy… It became very clear that the most important and urgent task … was to get an effective copyright law promulgated in Nigeria.33
7.3.4 The 1988 Copyright Act
The end of the Nigerian civil war in 1970 coincided with Nigeria’s oil boom which brought immense wealth to Nigeria. With lots of money to spend and people needing to get back their lives, entertainment offered comfort and further developed into an important industry in Nigeria. Highlife was in high demand and the likes of Sir Victor Uwaifo, Osita Osadebe, Victor Olaiya, Cardinal Rex, Jim Lawson and Celestine Ukwu met these entertainment needs through life performances and productions with Philips Ijora Causeway studios in Lagos Nigeria. Philips which later became phonogram was not the only point of production at the time, there was also Polygram which later became Premier and then EMI which changed to Ivory, DECCA and then Afrodisia. Popular Nigerian artists such as Fela Anikulapo Ransome-Kuti known for his Afro-beat Music, Sunny Okosun for his popular singles “Fire in Soweto”34 and Mother & Child”, Bongos Ikwue for “Beautiful woman” all produced with EMI. EMI also sold foreign produced works, such as those of Bob Marley, Peter Tosh, Jimmy Cliff and Jonny Nash amongst several others. Indigenous producers were also thriving and made big hits. Homzy Sounds produced the popular “Love Nwantinti” performed by Nelly Uchendu. Another indigenous producer was Rogers All stars who produced what may be regarded as one of Nigeria’s most impacting songs “Sweet Mother” performed by Prince Nico Mbarga and the Rocafil Jazz Orchestra.35 In the midst of all these developments in the entertainment industry, technological development enabled the invention of the cassette player and cassettes which further brought about cheaper and easier copying. A proliferation of facilities to mass produce works on cassettes brought about piracy challenges in the entertainment industry. Producers, authors and performers were all concerned about the high level of piracy.36 The same effects were being felt in the publishing industry as well. This led to setting up an Anti-Piracy Vanguard made up of the music and publishing industries.37 Despite several anti-piracy raids and collaborations with the police, piracy was on the rise and the copyright law which had been recently passed had no teeth to bit and therefore did not deter the pirates from their acts. The Nigerian copyright industry frustrated and agitated identified legislative reform as one of the cardinal issues in combatting the challenges posed by piracy. After series of meetings and lobbying the 1988 copyright legislation was passed and became a part of the Nigerian legal system.
The Act was promulgated under a military administration and was therefore passed as a decree. The Act has been amended twice, firstly in 1992 and secondly in 1999. In 2004, the laws were re-codified under the laws of the federation of Nigeria. The recodification changed the numbering of the sections but its contents are still the same. The Act when passed in 1988 had 41 sections but the combined effect of the recodification and the amendments to the Act has moved the number of sections to 53 sections while retaining the original number of parts and schedules, that is, four parts and five schedules.
The four parts provide for the following:
Part I: Copyright,
Part II: Neighbouring rights,
Part III: Administration of copyright and
Part IV: Miscellaneous.
The five schedules to the act cover the following:
First Schedule: Terms of copyright,
Second Schedule: Exceptions from copyright control
Third Schedule: Special exceptions in respect of a sound recording of a musical work respectively.
Fourth Schedule: Compulsory licences for translation and reproduction of certain works
Fifth Schedule: Translation and savings provisions.
7.3.5 Works Eligible for Copyright Under the Act
Works eligible for copyright the world over are generally similar but there exist some differences depending on the jurisdiction. Under the Nigerian Copyright Act, six works are particularly mentioned as eligible for copyright. They are as follows: literary, musical and artistic works; cinematograph films, sound recordings and broadcasts.38 The first three works form the core of copyright while the last three, are bye products of the first three. They are the economic and commercial end of the first three and are referred to as neighbouring or related rights. Therefore in the discussions on copyright in this section, the focus will be on the first three (literary, musical and artistic) and when reference is made to the last three (cinematograph films, sound recordings and broadcasts), it is in respect of neighbouring rights.
For a work to be eligible for copyright under the act, sufficient effort must have been expended on the work to give it an original character and it must have been fixed in a definite medium directly perceivable or perceivable with the aid of any device or machine.39 The fact that the making of a work involved some form of copyright infringement would not alone constitute grounds for ineligibility.40
7.3.6 Conferment of Copyright
Once a work is eligible for copyright, copyright may be conferred on such a work through a number of channels.
By virtue of nationality or domicile: The author(s) is a citizen of or is domiciled in Nigeria or an organisation/company duly registered under the laws of Nigeria.41
By reference to country of origin: The work was first published or made in Nigeria.42
In Works of government, State authorities and International bodies: The work is made under the direction of the government, a state authority or an international body.43
Reference to International agreements: The work is made by a person who on the date of the first publication of the work, such person was a citizen of a country or domiciled in a country to which Nigeria is a party to an obligation in a treaty or other international agreement; or where the work was first published in a country where Nigeria has treaty obligations, or where it was first published in either of the following organisations, the United Nations or any of its specialised agencies, the African Union or the Economic Communities of West African States.44
7.3.7 Powers of a Copyright Owner
The author of a copyright work or the owner of copyright enjoys certain exclusive rights. These rights operate as restrictive rights in that the author is empowered by copyright to control the doing of certain actions and without his consent or authorization, such works may not be carried out. The doing of any of such works without consent amounts to an infringement of the right of the author or the copyright owner. Sections 6–9 of the Act provides for the general nature of copyright and provides for the exclusive actions that the author/copyright owner controls. These exclusive actions include reproducing, publishing, performing, translating, making any cinematograph film or a record in respect of the work, distributing to the public for hire or for commercial purpose copies of the work, communicating to the public and making an adaptation of the work. The doing of any of the afore-mentioned actions amounts to copyright infringement which carry consequence both in the civil and criminal realms.
7.3.8 Infringement of Copyright
An important part of the legislation are the infringement provisions of the Act which provide for both civil and criminal actions which may be instituted simultaneously.45 The Act specifically states amongst other things when prescribing copyright infringement that
Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright
(a) does or causes any other person to do an act, the doing of which is controlled by copyright; (b) 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 this Act;…46
In the event of an infringement, the copyright owner, assignee or exclusive licensee may bring an action before the Federal High Court and may claim for damages, injunctions and/or accounts. Ignorance is a defence to copyright infringement, but it must be proved that at the time of the infringement the defendant was actually unaware and had no reasonable grounds to suspect that copyright subsisted in the work. In such situations plaintiffs are not entitled to damages but rather account for profits in respect of the infringement.47
The Act criminalises copyright infringement with Section 20 of the Act providing conviction or fine and conviction and fine punishment to those found guilty. It provides that where a person is found guilty of making or causing to be made for sale, hire or other commercial purposes any infringing copy, or 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 makes, causes to be made or has in his possession, any plate, master tape, machine, equipment or contrivances, for the purpose of making any infringing copy of any such work, such a person shall be liable to a fine of an amount not exceeding N1,000 for every infringing copy or a term of imprisonment not exceeding 5 years, or to both such fine and imprisonment. The criminal provisions with stiff penalties have been tested in the courts and have in many ways served as deterrence to further copyright infringements.
7.3.9 Court Convictions
In the cases of NCC V Godwin Kadiri,48 NCC V Michael Paul 49 and NCC V Emordi Henry Chukwuma 50 all on charges infringing broadcast rights, the defendants were all found guilty. In the case of NCC V Godwin Kadiri, which held in the Benin judicial division, the defendant was sentenced to serve a 6½ years jail term with no option of fine and is being made to serve two jail terms. In NCC V Emordi Henry Chukwuma and NCC V Micheal Paul which were heard in the Abuja and Lafia jurisdictions of Nigeria, they were both sentenced upon conviction to pay fines of N10,000 and 5,100 respectively. Convictions have been made with regards to infringements of other works. In NCC V Nwoke Isreal, 51 the Lagos judicial division of the Federal High Court, convicted and sentenced the defendant to 1 year imprisonment without the option of fine for infringing upon literary rights. In NCC V. Anoke Celestine on charges bordering on infringements of sound recording and cinematograph film rights, the Benin judicial division of the federal high court sentenced the defendant to 10 months imprisonment.
7.4 Nigerian Copyright Commission
The 1999 amendment to the Act amongst other things established a body responsible for all matters affecting copyright in Nigeria known as the Nigerian Copyright Commission.52 Although the Nigerian Copyright Act was passed in 1988, it was not until August 1989 that the Nigerian Copyright Council was established by virtue of Decree No. 47 of 1988 and in 1996 government approved that it become the Nigerian Copyright Commission. The 1999 Amendment to the Act gave legislative effect to the government’s earlier approval. The Nigerian Copyright Council has it then was, was only saddled with copyright administrative responsibilities but with the amendments to the Act, its mandate was extended to cover enforcement and it became a full-fledged enforcement agency with perpetual succession.53 The Commission was given certain powers such as powers to grant compulsory licenses,54 approval of organisations desirous of operating as collecting societies,55 powers to make regulations subject to the approval of the Minister56 and powers to appoint copyright inspector inclusive of all police powers.57 The combined effect of these provisions upgraded the status of the Commission from an administrative agency to an enforcement agency.