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Creatives should take copyright law as seriously as their art, explains Adeoluwa Ademola of Inventa
This article serves the purpose of educating creatives on the importance of copyright laws in Nigeria.
It also provides insight into the major aspects of copyrights, its protection, and their implication on creatives.
It is worthy of note that the principal law that governs copyrights in Nigeria is the Copyright Act LFN 2004, and the government agency that is responsible for the regulation and administration of copyright in Nigeria is the Nigerian Copyright Commission (NCC).
The Copyright Act (the Act) makes provision for the protection, transfer, infringement, and remedies for the infringement of copyrights in Nigeria.
It is important to note that not all creative works are eligible for copyright. Section 1(1) of the Copyright Act LFN 2004 states that the following listed works qualify for copyright:
- Literary works;
- Musical works;
- Artistic works;
- Cinematograph films;
- Sound recordings.
Section 1(2) of the Copyright Act provides that a literary, musical, or artistic work shall not be eligible to be copyrighted except the following occurs:
- Sufficient effort was expended in making the work to give it its original character;
- The work has been fixed in a definite medium of expression that is now known or to be developed later from which it can be perceived either directly or with the aid of any machine.
The above conditions must be fulfilled before a creative work can be deemed a copyright under the Nigerian law.
Let us consider the elements for copyright above.
Originality: To be original, a work must not be derived from another and must have been created independently. It should not be an adaptation or a reproduction of another person’s work. It also suffices to mention that such work must be a product of creative expression that falls under a category of copyrightable subject matter.
Fixed: In this instance, a work must be fixed in a tangible medium of expression. An eligible work is deemed copyrighted the moment the work is fixed. A work is considered to be fixed so long as it is sufficiently permanent or stable to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. In other words, an idea cannot form a copyright because it is a collection of thoughts and is not fixed in a medium of expression.
Duration of copyright
It is important to note that copyright does not vest in the author forever. The First Schedule to Copyright Act LFN 2004 provides for the duration of copyright protection in a work:
- For literary, musical, and artistic work other than photographs; the Copyright Act stipulates seventy years after the end of the year in which the author dies and in the case of a government or a body corporate, seventy years, after the end of the year in which the work was first published.
- For Cinematograph films and photograph; the Copyright Act stipulates fifty years after the end of the year in which the work was first published.
- For sound recordings, the Copyright Act stipulates fifty years after the end of the year in which the recording was first published.
- For broadcasts, the Copyright Act stipulates fifty years after the end of the year in which the broadcast first took place.
Registration of a copyright
A voluntary copyright registration scheme has been established by The Nigerian Copyright Commission (NCC), to enable authors and right owners to notify the commission of the creation and existence of a work.
A person is required to submit an application personally or through an agent for registration to any office of the NCC nationwide. A complete registration form, copies of the work, and evidence of payment of the prescribed fee must be submitted to the commission.
Investopedia defines Copyright infringement as the use or production of copyright-protected material without the permission of the copyright holder. It further defines copyright infringement as the rights afforded to the copyright holder, such as the exclusive use of a work for a set period of time, are being breached by a third party.
Section 15 of the Copyright Act provides for the infringement of Copyright in Nigeria. Copyright is infringed by any person who, without the licence or authorisation of the owner of the Copyright does the following acts:
- Does or causes any other person to do an act, the doing of which is controlled by copyright.
- Import or causes to be imported into Nigeria any copy of a work which it had been made in Nigeria would be an infringing copy.
- Exhibit in public any article in respect of which copyright is infringed.
- Distributes by way of trade, offers for sale, hires, or otherwise for the purpose prejudicial to the owner of the copyright any article in respect of which copyright is infringed.
- Makes or has in his possession plates, master tapes, machines, equipment, or contrivances used for making infringed copies of the work.
- Permits a place of public entertainment or business to be used for a performance in public of the work, where the performance constitutes an infringement of the copyright in work, unless the person permitting the place to be used not aware, and had no reasonable ground for suspecting the performance would be an infringement of the copyright.
- Performs or causes to be performed for trade or business or as supporting facility to a trade or business, any work in which copyright subsists.
Institution of copyright infringement
An action on infringement may be brought by the owner of the copyright, an assignee or an exclusive licensee to the Federal High Court exercising jurisdiction where the infringement occurred. Such reliefs by way of injunction or damages shall be available to the plaintiff.
Also, an action relating to the infringement of copyright may be civil or criminal. A civil action may arise between two parties. On the other hand, the NCC may institute a criminal action against the infringer. Notably, a civil and criminal action may run simultaneously on the same fact of infringement, and the criminal action may subsist even if the parties had settled the civil claim.
Remedies of infringement
There are remedies available to authors of copyright works whose copyrights have been infringed upon. For example, they may write a letter of demand that, the person infringing their copyrights stop the infringement, deliver all original and copies of the infringed work to them and pay compensation for use of their work.
In the event that the infringing party does not respond to such demand, the copyright owner can commence an action at the Federal High Court, seeking to claim damages for the infringement and an injunction preventing the infringer from further perpetrating such act.
Furthermore, there are criminal liabilities for any persons that infringe on another’s copyright. Specifically, Section 20 of the Copyright Act provides that a person who makes or causes to be made for sale, hire, or for the purpose of trade or business any infringing copy of a work in which copyright subsist or imports or causes to be imported into Nigeria a copy of any work which if had been made in Nigeria would be an infringing copy or make or causes to be made, or has in his possession any plate, master tape, machine, equipment or contrivance for the purpose of making any infringing copy of any such is criminally liable. The punishment upon conviction is five years of imprisonment or a fine or both.
Copyright is an important aspect of intellectual property that should be taken seriously by every creative in this era, as it plays a crucial role in protecting the value and interests of creatives and provides opportunity for creatives to fully exploit the works created by them. It provides an avenue for the balance of a creative’s desire for financial rewards and a user’s access to the creative work for societal benefits.
Adeoluwa Ademola is a trademark and patent attorney at Inventa Nigeria. He can be contacted at email@example.com
Copyright, Nigeria, Literary works, music, art, film, sound, Copyright Act LFN 2004