By Adigun Oluwapelumi and Audi Rahma Salihu
For: Starlion Legal
Introduction
Since its independence, Nigeria has made concerted efforts towards economic growth through various development programmes, policies, and laws. However, in recent decades, there has been a significant increase in the recognition of creative works as highly valued possessions, the benefits of which should not be enjoyed by undeserving and/or unauthorised individuals.[1]
On April 6, 2022, the Senate passed a bill repealing the Copyright Act, Laws of the Federation 2004, and re-enacting the Copyright Act 2022. The bill combines two similar bills on the subject, SB 688 and SB 769, sponsored by Senator Mukhail A. Abiru (APC: Lagos) and Senator Yahaya Abubakar Abdullahi (APC: Kebbi)[2]
The new Copyright Act aims to effectively protect authors’ rights in order to ensure just rewards and recognition for their intellectual efforts; to provide appropriate limitations and exceptions to ensure access to creative works; to facilitate Nigeria’s compliance with international copyright treaties; and to strengthen the capacity of the Nigerian Copyright Commission to effectively administer and enforce its provisions.[3]
Every person has exclusive control over his or her intellectual creations that are fixed in a specific medium of expression under the law. Meanwhile, technological progress is shaping the global economy. As a result, there is a growing awareness of the importance of staying current on global copyright trends, particularly because the exponential growth of the digital space comes with an equal measure of risks and benefits. This paper examines the new Copyright Act’s innovations aimed at protecting Nigeria’s digital economy.[4]
Innovations Under the Copyright Act, 2022.
Section 1 under the old law listed the works eligible for copyright which is currently section 2 under the Copyright Act 2022.
Section 11 of the Act provides explicit protection for audio-visual works. An audio-visual work is defined under Section 108 to mean “the aggregate of a series of related visual images with or without sound, which is capable of being shown as a moving picture by means of a mechanical, electronic or other device and irrespective of the nature of the material on which the visual images and sounds are carried and includes the soundtrack but does not include a broadcast”. In other words, pictures, videos, sound recordings, and other productions, many of which can be found online, will fall within the ambit of this provision. Media contents should therefore not be copied, republished, or used without explicit consent from the creators. This was not obtainable under the old Copyright Act of 2004, as there is no mention of “audiovisual” or any references whatsoever.
A very noteworthy reform in the Copyright Act, 2022, is the institution of simultaneous proceedings/actions. By virtue of section 47 of The Copyright Act, 2022, copyright infringement is actionable in both civil and criminal proceedings.
“Notwithstanding the provisions of any law to the contrary, it shall be permissible for both criminal and civil actions to be taken simultaneously in respect of the same infringement under this Act”.
The new Copyright Act has also instituted stiffer punishments for infringement of copyright. It defines a variety of copyright offences and stipulates penalties of fines ranging from N10,000 (for each unauthorized copy of a work with copyrights) to N5,000,000 and imprisonment terms ranging from one to five years or a combination of a fine and an imprisonment term. These provisions increase the penalties for copyright offences, which were as low as a fine of N100 and imprisonment terms of six months under the former law. The aim of stiffer penalties, being the deterrence of copyright offences.
These penalties are amply provided for in sections 44, 45, 46, 49, 73, 76 of The Copyright Act, 2022.
Section 49 describes anti-piracy measures put in place. It grants the commission anti-piracy devices (like designs, marks, labels, impression, etc.) to be used on any work which copyright subsists. Section 49(2b) provides that anyone who is convicted on the basis of contravention of this section is liable to pay a fine of N500,000 at least, or a prison term of at least three years or both. The penalties under the Copyright Act 2004 do not meet the standard installed by the Copyright Act 2022, under the former law, by virtue of section 21, the penalties, comprised of fines ranging from N50,000, N100,000 and N500,000 and an imprisonment term not exceeding 12 months, depending on the offence.
However, under the new Act, by virtue of section 49, the penalties, comprise of fines ranging from N100,000, N500,000 and N1.000.000 and imprisonment terms ranging from 1 year, 3years, and 5 years, depending on the offence.
Section 50 provides for the circumvention of technological protection measures. Section 52 outlines actions that may be taken when a person’s rights are violated. The aggrieved may institute an action before a court to seek redress for damages, accounts or injunctions.
The court may order that any device or product that is in the custody or control of the violator be impounded if it deems it necessary.[5]
With the new Act, content may now be removed from a website when it is being used inappropriately as per Section 54. As individuals will now have a secure passageway to utilize works in the digital realm online without worrying about the unchecked exploitation of those works, the positive effects will ripple out to other areas.[6]
Section 69 (2) of the Act provides that a performer who has authorized the fixation of his performance in an audio-visual work shall, in the absence of any agreement to the contrary, be deemed to have granted to the person by whom the arrangement for such fixation is made, his or her exclusive rights to the performance. For this reason, performers must be clear on what they consent to and what they desire as remuneration.
Section 63(3) defines a “performer” to be actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore irrespective of whether the work was fixed or only fixed during performance.
Ensuring that creators are recognized and able to enjoy the benefits, financial or otherwise, that come as a result of their intellectual efforts is a major drive under this Act. Section 69 (3) of the Act specifically provides that performers have a right to share in any payment received by the person who arranges for the fixation of the audio-visual work in respect of the broadcast or communication to the public of the fixed performance. This allows performers to fully exploit this provision in order to receive fair compensation and/or sufficient remuneration for their performances.[7]
Quite apart from the provision which allows for performers to negotiate and set the terms for their remuneration and fair compensation as provided by the new Act- section 69(3) which is not obtainable under the old Act, the penalty for infringement under the Copyright Act 2022, is also stiffer than what was obtainable under the Copyright Act, 2004.
Under the old Act, in section 30, the punishment was:
(a) in the case of an individual, to a fine not exceeding N10,000;
(b) in the case of a body corporate, to a fine of N50,000;
However, under the new Act, in section 73, the punishment currently provides for:
(a) an individual, to a fine of not less than N100,000.00 or to imprisonment for a term of not less than 1 year or to both; and
(b) a body corporate, to a fine of not less than N2,000,000.00.
Section 108 of the Act defines “copy” to mean a reproduction in any form, including a digital copy. This gives a broader protection for innovative works, and all Nigerians particularly those with access to the digital space, must be careful with how they utilize and transmit creative contents. There is no such provision under section 51 (interpretation section) of the Copyright Act, 2004.
With the vast and fast-paced nature of the digital world, there is no gainsaying the fact it is now possible to have billions of copies of an intellectual work transmitted across the globe within seconds. Therefore, in the absence of a comprehensive copyright regime, millions of Nigerians can easily be forced to watch as their heard-earned creations become lost and untraceable online. The respect and protection of digital contents will not only allow Nigerians fully realize the economic benefits of their intellectual efforts, but also encourage more innovations to boost the digital economy.[8]
As part of the new Act provision, rights are explicitly specified and exemptions are precisely clarified in a balanced way. In addition, the exceptions that will enable society to reap the benefits of copyright works have been clearly established. The current Act targets digital works and has solved all the problems plaguing the online and the digital world. For example, under the previous legislation, copies could only be hard copies, but under the new Act, copies are defined in a manner that permits softcopy as well, as per Section 108.[9]
A welcome and in fact, long overdue addition is the expansion of protection on the provisions of expressions of folklore. Section 74(5) of the Copyright Act, 2022, has defined “folklore” to mean – a group-oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means including –
(a) folklore, folk poetry, and folk riddles;
(b) folk songs and instrumental folk music;
(c) folk dances and folk plays; and (d) productions of folk arts in particular, drawings, paintings, carvings; sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, handicrafts, costumes, and indigenous textiles.
These expressions of folklore have been protected in section 74(1) against reproduction, commercialization, distribution and communication to the public through performance,
adaptations, translations and other transformations, when such expressions are made either for commercial purpose or outside their traditional or customary context.
Sections 74(2) & (3) mandate any party who wishes to make public and or commercial use of expressions of folklore should ensure such must be accompanied by an acknowledgment of the title of the work and its source, which is achieved by stating the community or place from where the expression utilized has been derived.
Section 75 places a statutory duty against infringement on the usage of such expressions on folklore. It provides-
“Any person who, without the consent of the Commission, uses an expression of folklore in a manner not permitted by section 73 of this Act, is in breach of statutory duty and shall be liable to the Commission in damages, injunctions and any other remedies as the court may deem fit to award in the circumstance”.
Section 76 imposes a sanction upon anyone found in contravention of the provisions within PART IX of the Copyright Act, 2022.
Section 76(2) provides that;
(2) A person convicted of an offence under subsection (1) of this section is liable on conviction in the case of-
(a) an individual, to a fine of not less than N100,000.00 or to imprisonment for a term of not less than 1 year or to both; and
(b) a body corporate, to a fine of not less than N2,000,000.00.
This particular provision and sanction are more than what was obtainable under the Copyright Act 2004, where the penalty for such infringement was by virtue of section 33(2):
(a) in the case of an individual, to a fine not exceeding N100,000 or to imprisonment for a term of 12 months or to both such fine and imprisonment; and
(b) in the case of a body corporate, to a fine of N500,000.
Perhaps the most explicit reform is the expanding the capacity of the NCC (Nigerian Copyright Commission) for the effective regulation, administration and enforcement of the provisions of the Act, as seen in section 1(d)of the Copyright Act, 2022
In truth, the entirety of section 1 of the Copyright Act 2022, deals with its objectives some of which are to:
(a) protect the rights of authors to ensure just rewards and recognition for their intellectual efforts;
(b) provide appropriate limitations and exceptions to guarantee access to creative works;
(c) facilitate Nigeria’s compliance with obligations arising from relevant international copyright treaties and conventions; and
(d) enhance the capacity of the Nigerian Copyright Commission for effective regulation, administration, and enforcement of the provisions of this Act.
None of this was available under the old Act of 2004.
Another reform of the Act, is the introduction of Copyright Levy. A copyright levy which will be payable on all materials used or capable of being used to infringe copyright in a work has been introduced in section 89.
By virtue of section 89(5), “material” includes any object, equipment, machine, or other device, including electronic or digital systems, used or capable of being used to infringe copyright in a work. The levy is to be paid into a fund that would be administered by the NCC and disbursed to approved Collective Management Organizations or other representatives of copyright owners.
The levy payable is subject to the Minister’s discretion; as is seen in section 89(2).
“This levy shall be as may be prescribed by the Minister, from time to time, by an Order and different levies may be imposed on different categories of material”
There is now a difference as opposed to before where the Commission had power to disburse the funds amongst approved societies in accordance with the regulations made by the Commission under section 40 of the Copyright 2004, Presently, the Commission shall disburse the funds instead to approved Collective Management or other representatives of right owners, in accordance with the regulations made by the Commission which gives the creators and owners of intellectual property more protection. Collective Management Organization is provided for in section 88 of the Copyright Act 2022, which is not the case under the 2004 Act, as there is no mention of it there.
The Nigerian Copyright Commission (NCC) is granted sweeping new powers under the Act, including to right to authorize the use of a work by any person for the purpose of rectifying the abuse of a dominant market position or to promote the public interest as provided in section 35, Copyright Act 2022.
It is also empowered, by virtue of section 97, with Ministerial consent, to make regulations under the Act, specifying conditions necessary for the operation of any business involving the production, publication, public exhibition, distribution, sale, hiring, rental, storage, warehousing or any other dealings in works protected by copyright.
More provisions showcasing the new statutory powers are found in sections 31, 35, 49, 75, 89, 99 of the Copyright Act, 2022.
Conclusion
The new Act serves as a timely reminder that policy responses and legal reforms are critical for dealing with the looming threats posed by technological advancement. Increased awareness of the importance of copyright in the digital economy will go a long way towards creating a culture of respect and appreciation for intellectual works. Furthermore, the Act seeks to strike a balance between the public interest in innovative works and their right to access information and/or intellectual creations on the one hand, and creators’ right to be fairly and adequately compensated on the other. Nigerians must educate and inform themselves about the copyright implications of their actions. They are also advised to take all reasonable steps to obtain creators’ permission before exploiting their work online.
BIBLIOGRAPHY
Adebayo, O. (2022) Nigeria may get new copyright act, PLAC Legist. Available at: https://placng.org/Legist/nigeria-may-get-new-copyright-act/ (Accessed: April 4, 2023).
AN-Usman (2023) New Copyright Act to reform existing system, Ask Nigeria. Available at: https://asknigeria.com/new-copyright-act-to-reform-existing-system/ (Accessed: April 4, 2023).
Section 52 (2), Copyright Act, 2022.
The nigeria copyright bill 2022 (2022) Law. Available at: https://www.dentonsacaslaw.com/en/insights/articles/2022/august/30/the-nigeria-copyright-bill-2022 (Accessed: April 4, 2023).
[1]The nigeria copyright bill 2022 (2022) Law. Available at: https://www.dentonsacaslaw.com/en/insights/articles/2022/august/30/the-nigeria-copyright-bill-2022 (Accessed: April 4, 2023).
[2]Adebayo, O. (2022) Nigeria may get new copyright act, PLAC Legist. Available at: https://placng.org/Legist/nigeria-may-get-new-copyright-act/ (Accessed: April 4, 2023).
[3]Ibid
[4]The nigeria copyright bill 2022 (2022) Law. Available at: https://www.dentonsacaslaw.com/en/insights/articles/2022/august/30/the-nigeria-copyright-bill-2022 (Accessed: April 4, 2023).
[5]Section 52 (2)
[6]AN-Usman (2023) New Copyright Act to reform existing system, Ask Nigeria. Available at: https://asknigeria.com/new-copyright-act-to-reform-existing-system/ (Accessed: April 4, 2023).
[7]The nigeria copyright bill 2022 (2022) Law. Available at: https://www.dentonsacaslaw.com/en/insights/articles/2022/august/30/the-nigeria-copyright-bill-2022 (Accessed: April 4, 2023).
[8]Ibid
[9]AN-Usman (2023) New Copyright Act to reform existing system, Ask Nigeria. Available at: https://asknigeria.com/new-copyright-act-to-reform-existing-system/ (Accessed: April 4, 2023).
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