Copyright Infringement, Defences & Remedies Under Nigerian Law

The body of law for copyright protection in Nigeria is the Copyright Act 2022 and judicial decisions in which the provisions of the successive Copyright Acts have been interpreted. As decided by the Supreme Court in Plateau Publishing v. Adophy 1986) 4 NWLR (Pt. 34) 205, it is settled law that the right of an author to his literary publication in respect of which he claims copyright is incorporeal; and that an author’s copyright gives him the fullest right to exclude all other persons and the right to the actual enjoyment of the benefits of the production.

Who is an Author/Owner of Copyright?

“Author” implies “ownership”. Both “author” and “owner” are used interchangeably in many contexts. In legal parlance, authorship is the touchstone for adjudging the ownership of any work that is eligible for copyright protection. In other words, the author of a work is the person in whom copyright is vested either by contract or by the operation of law (i.e. the Copyright Act 2022). For instance, Section 28(1) of the Copyright Act, 2022 vests copyright of any eligible work in the author unless there is a contrary agreement.

Section 108(1) of the Copyright Act 2022, which deals with definition parts of the Act, does not define “owner” of a copyright except “co-owner”, which is defined in relation to copyright assignment and licence, to mean “persons who share joint interest in the whole or any part of a copyright; or have interests in the copyright in various works comprised in a production of two or more works.”

Also, the definition of an author of copyright appears to differ, depending on whether it is in relation to a collective work, audiovisual work, photographic work, sound recording or broadcast. According to Section of 108(1) of the Copyright Act 2022, an “author” can be defined in accordance with the following classes of copyright work:

(a) Audiovisual Work: an author of audiovisual work (such as video skits, slide-tape presentations, webinars, films/movies, television programs, corporate conferencing, church services, live streams or live theater production) means the person by whom the arrangements for the making of the audiovisual work were made, unless the parties to the making of the audiovisual work, agree otherwise by contract between themselves;

(b) Collective Work: an author of a collective work, means the person responsible for the selection and arrangement of the collection. Also, by virtue of the provision of S.29(a) of the Copyright Act of 2022, unless an agreement is made to the contrary, copyright in a collective work shall vest in the person on whose initiative or direction the work was created. Please note that the authors of the works incorporated in a collective work shall have the right to exploit their works independent of the right in the collective work. A “collective work”, pursuant to Section 108 of the Copyright Act 2022, means a collection of literary or artistic works, which by reason of the selection and arrangement of their contents, constitute intellectual creations and as such protected without prejudice to the copyright in each of the works forming part of such collection. Please note that the authors of the works incorporated in a collective work, as provided in Section 29(b) of the Copyright Act, shall have the right to exploit their works independent of the rights in the collective work unless otherwise provided in an agreement.

(c) Photographic Work: an author of a photographic work, means the person who took the photograph. Different considerations may apply where the person who took the photograph did so under a work-for-hire arrangement or in the course of eemployment. In Peter Obe v. Grapevine Comm. Ltd. [2003-2007] 5 I.P.L.R. 354 at 373 paragraph (d) – (e), in which the plaintiff sued the defendant for infringement of his copyright in a civil war photograph, Abdullahi Mustapha, J., in giving judgment to the plaintiff, held that the plaintiff is the owner of the copyright in the civil war photograph in question and that the photographer took the picture after resigning from his last employment.

(d) Sound Recording: an author of a sound recording, means the person by whom the arrangements for the making of the sound recording were made; and

(e) Broadcast: an author of a broadcast transmitted from within any country, means the person by whom the arrangements for the making or the transmission from within that country were undertaken.

Please note that ownership of a material in which a work is embodied shall not confer ownership of copyright in the work (see Section 30(7) of the Copyright Act, 2022). Also, except as may otherwise be provided for in an agreement, an owner of copyright who transfers the ownership of the material in which the work is embodied, shall not be deemed to have transferred his copyright or to have granted a licence for the exploitation of the work; and vice versa. See Section 30(8) and (9) of the Copyright Act, 2022

Who owns the Copyright of a Work Produced in the course of Employment or Work-for-hire Arrangement?

In a work-for-hire arrangement or where the author produces the work in the course of his employment for another person, the employer is presumed by Nigerian law to be the owner of the copyright in the employee’s work unless the parties have otherwise expressly agreed in writing. See Section 28(2) of the Copyright Act 2022. By parity of reasoning, also, the copyright of a work done by an employee in his own time and not in the course of an employment is in the employee.

By virtue of Section 28(2) of the Copyright Act 2022, where a person, in the absence of an express agreement to the contrary, creates a work under a contract for services, or in the course of employment by a government, a ministry, department, or agency of a government or a prescribed international or inter-governmental organization, the copyright in that work shall vest in that government, ministry, department, agency, prescribed international or inter-governmental organization. 

Section 28(3) of the Copyright Act 2022, provides that “Notwithstanding subsection (1) and subject to any agreement between the parties, where a person for private and domestic purposes, commissions the taking of a photograph or the painting or drawing of a portrait or the making of an audiovisual work, the person who commissioned the work shall be —

(a) deemed to have a non-exclusive licence to exploit the commissioned work for non-commercial purposes ; and

(b) entitled to restrain the publication, exhibition, broadcasting, communication, distribution and making available of copies of the work to the public.” 

Halsbury’s Laws of England 4th edition, page 549 paragraph 860, quoted and adopted by Abdullahi Mustapha, J. in Peter Obe v. Grapevine Comm. Ltd. [2003-2007] 5 I.P.L.R. 354 at 373 paragraph (f) – (j),  the following statement of law was made as follows:

“Where a literary, dramatic or artistic work is made by the author in the course of his employment by the proprietor a newspaper, magazine or similar periodical under a contract of service or apprenticeship, and is so made for the purpose of publication in a newspaper, magazine or similar periodical, the proprietor is entitled to the copyright in the work insofar as the copyright relates to such publication or reproduction of the work for the purpose of its being so published. In other respects, however, the author is entitled to copyright in the work…………………. These provisions may be excluded by agreement……………………… the copyright in work done by an employee in his own time and not in the course of his employment is in the employee”.  

What are the implications of assignment and licence of a work protected under copyright?

By virtue of chapter 4 of the Constitution of the Federal Republic of Nigeria 1999, copyright is deemed to be movable property and transferable by way of assignment, testamentary disposition (i.e. a Will), or operation of law. The foregoing is also restated in Section 30(1) of the Copyright Act 2022.

Assignment of a copyrighted work is the transfer of one’s ownership in an existing or future work to another person or entity. That is, it is the legal transfer of the exclusive rights of an owner or co-owner of a copyrighted work by himself. The transfer can be in relation to a part of the work or the whole work. An assignment or testamentary disposition of copyright may be limited to only some of the acts, over which the owner of the copyright has the exclusive right to control or a part only of the period of the copyright, or to a specified country or other geographical area. By virtue of Section 30(2) & (3) of the Copyright Act 2022, an assignment of a copyrighted work to do an act does not have an effect unless it is in writing.

A licence is a grant of permission by a copyright owner or co-owner to a third party to exercise its rights under the copyright. Copyright licence is a legal agreement between a copyright holder and a third party that authorizes the third party to carry out any of the copyright owner’s exclusive rights in relation to an existing or future work. Copyright licences can be either exclusive or non-exclusive. An exclusive licence means a licence signed by or on behalf of a copyright owner, authorizing the licencee to the exclusion of all other persons (including the person granting the licence), to exercise any right which would otherwise be exercisable exclusively by the copyright owner. On the other hand, a non-exclusive licence occurs when the owner of a copyrighted work grants to a third party the use of its work but retains ownership of the copyright which empowers him to be able to exploit his work and also licence it to others.

Please note that an exclusive licence to do an act shall have no effect unless it is in writing; while, however, a non-exclusive licence may be written, oral, or inferred from the conduct of the owner of copyright. See Section 30(3) & (4) of the Copyright Act. 

Please note also that Section 30(10) of the Copyright Act 2022 prohibits the transfer of thee rights in all future work of an author; though a testamentary disposition of a material on which a work is first written or recorded shall, in the absence of any indication to the contrary, be presumed to include any copyright or prospective copyright in the work, which is vested in the deceased. See Section 30(11) of the Copyright Act, 2022.

In the case of a co-owner or joint authorship an assignment or licence done by one of the copyright owners, shall have effect as if granted by the co-owners and subject to any agreement between them, any fee received shall be divided equitably among the co-owners. See S.30(5) of the Copyright Act.

In Plateau Publishing v. Adophy 1986) 4 NWLR (Pt. 34) 205, the Supreme Court held as follows: “An exclusive licence means a licence in writing signed by or on behalf of a copyright owner, authorising the licencee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner. The licencee under an exclusive licence has the same rights against a successor-in-title who is bound by the licence as he has against the person granting the licence. An exclusive licencee may bring proceedings for infringement in the same way as an assignee.”

What Constitutes Copyright Infringement?

Section 36 of the Copyright Act 2022 provides for the acts which may constitute infringement of copyright in Nigeria and some exceptions to the exclusive rights of copyright owner in Nigeria. So, except a person’s action falls within the statutory exceptions provided in Part II of the Copyright Act of 2022, the exclusive right of a copyright owner will be deemed to be infringed by any person who, without the authorisation of the owner of the copyright, does or causes any person to do the following:

(a) an act, which constitutes a violation of the exclusive rights under the law; 

(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 Nigerian law; 

(c) sells, offers for sale or hire any work in respect of which copyright is infringed; 

(d) makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the sole purpose of making infringing copies of the work; 

(e) permits a place of public entertainment or of business to be used for a public performance of the work, where the performance constitutes an infringement of copyright in the work, unless the person permitting the place to be used was not aware and had no reasonable ground to suspect that the performance constitutes an infringement of the copyright; 

(f) permits within its premises, the reproduction of a copyright work; or 

(g) performs or causes to be performed for the purposes of trade or business or the promotion of a trade or business, any work in which copyright subsists. See Section 36(1) of the Copyright Act of 2022. 

Who has the Right to Sue for Copyright Infringement?

Subject to the provisions of the Copyright Act 2022, infringement of copyright shall be actionable at the instance of the owner, assignee or an exclusive licensee of the copyright at the Federal High Court sitting in the jurisdiction where the infringement occurred. See Section 37(1) of the Copyright Act, 2022.

There are several judicial pronouncements across the hierarchy of the Nigerian court system upholding the exclusive rights of a copyright owners to sue in respect of the infringement of a copyrighted work. For instance, in Peter Obe v. Grapevine Comm. Ltd. [2003-2007] 5 I.P.L.R. 354 at 373 paragraph (d) – (e), Nigerian court gave judgement in favour of a photographer (the plaintiff) in respect of the unauthorized use (by the defendant) of a civil war photograph taken by the plaintiff. Also, the court in the case of Haritz Ibezim Okoli v. Mr. Dick France & Anor (2006), gave judgment in favour of a copyright owner by relying on S.15(1) of the Copyright Act 1988 which is in pari materia with Section 36(1) of the Copyright Act, 2022 on infringement of copyright. 

According to the Court of Appeal in Multichoice (Nig.) Ltd. v. M.C.S.N. Ltd.Gte.(2020) 13 NWLR (Pt. 1742) 415 (Pp. 522-523, paras. G-A), the infringement of copyright shall be actionable at the suit of the owner, assignee, or an exclusive licensee as the case may be in the Federal High Court exercising jurisdiction in the place where the infringement occurred, and in any action for such infringement, all such reliefs by way of damages, injunction, accounts, or otherwise shall be available to the plaintiff as it is available in any corresponding proceedings in respect of infringement of other proprietary rights. See also Section 103 of the Copyright Act of 2022.

Please note that the doing of any of the acts referred to in Section 36(1) of the Copyright Act must be 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. See S.36(2) of the Copyright Act.

Please note also that, by virtue of Section 37(3) of the Copyright Act, 2022, where an action for infringement of copyright brought by the copyright owner or an exclusive licensee relates to an infringement in respect of which both have concurrent rights of action, the copyright owner or the exclusive licensee may not, without the leave of court, proceed with the action unless the other is joined as a plaintiff or added as a defendant.

In M.C.S., (Nig. Ltd. Gte) v. C.D.T. Ltd (2019) 4 NWLR (Pt. 1661) 1 at 23, the Supreme Court held as follows: “A community interpretation of sections ….. of the Copyright Act acknowledges five categories of persons who can institute or commence an action relating to infringement of copyright either personally or in a representative capacity. The persons so recognised are an owner, assignee and exclusive licensee of copyright in a work ……., also a person carrying on the business of negotiating, granting of licences, collection and distribution of royalties for not more than fifty owners of copyright in any category of works protected by the Act ……and an association of copyright owners (collecting Society) which may be formed upon the satisfaction of the conditions provided in …..the Act. It follows that an appropriate construction of the provisions so shown above, it is right to say that the right to sue is exercisable either jointly or severally by any one or more of the categories of persons so listed. In the same vein the rights conferred under s…… the Copyright Act for such created the capacity a person act and so an owner, assignee and exclusive licencee acts in a personal capacity while (other persons) .….. act in a representative capacity. The implication is that the latter capacity requires a licence or exemption, the former is not so required in order to have the rights exercised.” (words in brackets are for clarity).

What are the Available Reliefs for Copyright Infringement?

It is trite law that where is a wrong, there is a remedy. Pursuant to Section 37 of the Copyright Act 2022, infringement of copyright shall be actionable at the instance of the owner, assignee, or an exclusive licencee of the copyright in the court exercising jurisdiction in the place where the infringement occurred. An action for infringement includes a counterclaim and the plaintiff shall be entitled to reliefs such as damages, injunction, accounts or as is available in any corresponding proceedings in respect of infringement of other proprietary rights. 

In Colburn v. Simms (1843) Ha. 543 at p. 560 (quoted with approval by the Supreme Court in Plateau Publishing v. Adophy 1986) 4 NWLR (Pt. 34) 205 at page 224 paras. G-H, per Uwais, JSC)  the principle upon which account for profits is awarded in a case of copyright infringement is stated as follows –“It is true that the court does not, by an account, accurately measure the damage sustained by the proprietor of an expensive work from the invasion of his copyright … The court, by the account, as the nearest approximation which it can make to justice, takes from the wrongdoer all the profits 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, in fact, than he is entitled to … The court of equity, however, does not give anything beyond the account.”

Following from the above, the Supreme Court thereafter held in Plateau Publishing v. Adophy 1986) 4 NWLR (Pt. 34) 205 at page 224-225 paras. H-B, per Uwais, JSC as follows: “Now, although it is question of law that account for profits will be awarded once the provisions of subsection (2) of section 12 of the Copyright Acts, 1970 are satisfied, it is a matter of evidence and therefore facts, whether at the time of the infringement the appellants were not aware or had no reasonable ground to suspect that the respondents copyright was attached to the article published. Both the lower courts, as seen earlier in this judgment, had found that the appellants had infringed the respondent’s copyright and that they could not avail themselves of the defence provided by the subsection. Thus, there has been two concurrent findings of fact on the issue. It is trite law that this court will not interfere with such findings. It is no longer necessary to cite authorities in support of the principle. Consequently, the respondent is not to be awarded account for profits but damages.”

What are the Defences to Copyright Infringement Claims?

Part II of the Copyright Act, 2022 provides some statutory exceptions to the exclusive rights of a copyright owners. These statutory exceptions are legal defences to infringement claims by a copyright owner. The exceptions are contained in Section 20-27 (Part III) of the Copyright Act of 2022. They are as follows:

1. Fair dealing: The exclusive rights granted to owners of copyrighted work under Sections 9 – 13 of the Copyright Act does not include the right to control acts related to the work by way of fair dealing for purposes, such as private use, parody, satire, pastiche, or caricature, non-commercial research, and private study; criticism, review or the reporting of current events, subject to the condition that if the use is public it shall where practicable be accompanied by an acknowledgment of the title of the work and its author except where the work is incidentally included in a broadcast. See Section 20(1) of the Copyright Act, 2022.

Notwithstanding the exclusive right provided for in Section 9 of the Copyright Act (literary and musical works), reproduction of a copy or the adaptation of a computer program is permitted if the copy or adaptation is for the following use among others; for use with a computer for the purpose for which the computer program was obtained; archival purposes or as a replacement if the original copy of the computer program is lost, destroyed or rendered unusable; for the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes of maintenance or repair only of that machine on the condition that such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed. 

2. Examination and Instruction: Copyright in a literary, musical and artistic work is not infringed when it is copied if the copying was made or is being made in the course of carrying out an instruction (by a student) or for preparation of an instruction (by a teacher or instructor). It should be noted that the application of this exception is restricted to the person giving or receiving instruction and it is not using a reprographic process. See Section 21(1) of the Copyright Act, 2022.  

However, where the reprographic copying of passages from a published literary or musical work is done or carried out by or on behalf of an educational establishment for instruction, such act cannot be said to have been an infringement on the copyright in the work on the condition that not more than five percent of the work is copied by or on behalf of an educational establishment within a period of three (3) months. See Section 23(1) of the Copyright Act 2022. 

Copyright in a sound recording, audiovisual work, broadcast, or cable program in the course of carrying out an instruction or in the preparation of an instruction to be given in a non-profit educational institution is not an infringement by virtue of Section 21(2) of Copyright Act 2022, on the exclusive right of the owners provided the copying is done by and used for the instruction by a person giving or receiving instruction.

By virtue of Section 21(3) of the Copyright Act, a work protected by copyright is not infringed by anything done for an academic examination by way of setting, communicating, or answering examination questions.

3. Archives, libraries, museums, and galleries: Despite the protection of the exclusive rights of the owner of a copyrighted work, archives, libraries, museums, and galleries may, for non-commercial purposes, make and distribute copies of works protected under this Act as part of their ordinary activities; make copies of works in their collection for back-up and preservation; make or procure a copy of any missing part of a work in its collection from another institution; make or procure a copy of any work that is or should be available in its collection in any chosen format, where the work cannot reasonably be acquired in that format through general trade or from the publisher; or make or procure a copy of any work where the permission of the owner of the copyright cannot be obtained, after reasonable effort, or where the work is not available by general trade or from the publisher. See Section 25 of the Copyright Act 2022. 

4. Blind visually impaired persons: According Section 26 of the Copyright Act 2022, an authorized entity may, without the permission of the owner of copyright in a work, make or procure an accessible format copy of a work or subject matter and supply the copy to beneficiary persons by any means, including non-profit lending, or electronic communication by wire or wireless means, on the condition that the authorized entity desiring to undertake any of the activities under this section has lawful access to that work or subject matter or a copy of that work or subject matter; the work or subject matter is converted to an accessible format copy; the accessible format copy is supplied to be used exclusively by beneficiary persons; and that the activity is undertaken on a non-profit basis.

5.  Compulsory Licence: The exclusive rights of an author of a work provided for in sections 9-13 of the Copyright Act 2022 may because of a compulsory licence be exercised by a compulsory licencee without the permission of the rightful owner. Sections 31- 35 of the Copyright Act provide the grounds on which a person can apply for a compulsory licence to the Nigerian Copyright Commission. It should be noted that the compulsory licence does not divest all the rights for instance the moral rights of the author in his work to the compulsory licencee and the compulsory licencee can only enjoy the exclusive right on the grounds in which the compulsory licence was granted. It should also be noted that the compulsory licencee does not by the licence become the owner of the copyright in the work.

6. Innocent Infringement: Section 37(4) of the Copyright Act 2022 provides that innocent infringement may be pleaded in defence against an action for copyright infringement. Section 37(4) of the Copyright Act 2022 provides that “In an action for infringement of copyright, where it is proved or admitted that an infringement was committed, but that at the time of infringement, the defendant was not aware and had no reasonable grounds to suspect that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement, whether or not any other relief is granted.“

Please note that this defence does not discharge the defendant from liability; it only changes the type of reliefs that can be granted to the copyright owner. In Plateau Publishing v. Adophy 1986) 4 NWLR (Pt. 34) 205, the Supreme Court held that the defence of innocent infringement of a copyright is a defence for the protection of the author of the infringing article and not a defence for the publisher of the infringing article though the appellants in that case were held jointly and severally liable. According to the apex court, it is not necessary to allege that the defendant in an action for infringement of copyright knew that he was infringing the copyright of someone; because such knowledge is unnecessary.

Following from the above decision, it would therefore mean that the right of action for infringement of copyright exists whether the infringement is intentional, malicious or innocent or whether the right to property is real or personal, corporeal or incorporeal.

Source: Koriatlaw