- INTRODUCTION
Copyright under the Nigerian Copyright Act,2 is a legal protection granted to creators or originators of creative works, whether Literary, Musical, Artistic or Cinematographic works or an adaptation of any of these eligible works.3 Copyright confers an exclusive and assignable right to the Creators of such works. For a Copyright to subsist in a work of authorship, such work must have been fixed in a definite and tangible medium of expression such as paper, diskettes, flash drives, CD-ROMs, VCDs, DVDs or other formats now known or later to be developed from which the creative work can be perceived, reproduced or communicated to the pubic either directly or by means of a device.4 Therefore, copyright automatically exists in an original work of authorship from the moment the work is created and fixed in a definite medium of expression; and covers both published and unpublished works.5 The ownership of copyright is vested in the creator or author of an original work, and this original work automatically enjoys copyright protection in
In the recent case of
Since the referenced matter is presently on appeal, the gravamen of this article is to evaluate the decision of the trial court in line with the position of relevant laws and judicial precedent and to underscore the requirements for proving ownership of copyright to ground a claim for infringement.
- BACKGROUND
In a N1.5 billion claim, the Plaintiff instituted the instant action at the
On 25th
In emphasising the need for the Plaintiff's claim for infringement of his copyrighted work to be backed by evidence of formal registration, the learned trial Judge held that the registration of a Copyright is what confers locus standi on a Plaintiff to institute an action for infringement. Though parties before the Court had formulated four (4) issues for determination on either side, the Court reformulated a singular issue of locus standi in coming to its decision.
- OPINION
It is trite that the ownership of copyright is vested in the creator or author of an original work7 or an assignee/transferee8 thereof. This original work of an author automatically enjoys copyright and its benefits without having to be registered. This is provided in Section 1 (2) of the Nigerian Copyright Act which grants copyright to a literary, musical or artistic work when:
-
Sufficient effort has been expended on making the work to give it an original character; and
- The work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced, or otherwise communicated either directly or with the aid of any machine or device.
- CONCLUSION AND RECOMMENDATIONS
From the above provision, it is self-evident that the acquisition of copyright is automatic and does not require any formalities because once a work has been produced in a tangible medium of expression or in a form capable of being reproduced or perceived, such work is automatically copyrighted, and the author can enjoy the full benefits of a copyright holder and no further steps are required to be taken under the Act. Therefore, registration is not required or imposed as a pre-condition for copyright protection or a claim for infringement.
In the case of Zain
Further, the courts have held that only a copyright owner, an assignee or exclusive licensee can maintain an action for copyright infringement in
"Sections 16, 17 and 39, the Copyright Act 2004 made provisions for five categories of persons, who could sue to enforce infringement of copyright under the Copyright Act 2004. These five categories of persons or bodies include the following, namely: 1: An owner; 2: An Assignee; 3: An Exclusive Licensee; 4: A person carrying on the business of negotiating, granting of licenses, collection and distribution of royalties for not more than fifty owners of copyright in any category of works; and 5: An
Similarly, in the case of
"In effect for a person to be a legal owner of copyright for the purposes of vesting requisite locus, such must fall into any of the following categories, namely; the author of the work himself, the assignee, the licensee. It is therefore only any of these legally authorised or accredited owners that can seek redress in the copyright in the Court of law."
This decision was upheld by the
Furthermore, Section 43 of the Act13 makes a very elaborate and clear presumptions of ownership in the absence of any contrary evidence in favour of the Plaintiff in any claim for copyright infringement. Some of these presumptions include the fact that copyright subsists in a work that is the subject matter of an alleged infringement, the plaintiff is the owner of the copyright in the putative work and that the name appearing on the work is the name of the author of the work.
The import of the provisions of the Copyright Act and the above interpretations by the Courts in essence, is that it is sufficient that the subject matter in issue has been produced in a tangible form of expression, enough effort has been expended on the work and an author need not register his work before it can be protected by copyright. This invariably means that an Author is not required to present proof of registration to be vested with the locus standi to institute an action for infringement of copyright.
Significantly, the Berne Convention14 to which
In order to remove all doubts regarding the automatic protection of works of authorship under Nigerian law, section 3 of the initial 2015 Draft Copyright Bill21 stipulated that copyright protection should not be subject to any formalities before enjoyment of the right.22 Further, the "Copyright Act repeal and re-enactment Bill, 2021",23 which passed second reading24 at the
It is our considered opinion that the decision of the court is an error in law and against judicial precedent. The decision under review is fundamentally misguided because the decisions in a plethora of cases as well as the provisions of section 16 of the Copyright Act (which states the actions that constitute the components of infringement of protected works); and section 17 of the Act (which provides for the limitation to the right of an action of infringement), do not stipulate registration of copyright as a condition precedent and/or limitation to copyright protection.
Also, the voluntary notification of a work of authorship at the NCC cannot be mistaken as a precondition for the exercise and enjoyment of copyright protection by copyright owners. On the contrary, lodging a creative work at the NCC can be encouraged, to enable authors' wider latitude to establish, protect, enjoy, and exploit their works as they see fit.
In conclusion, the
The continuing legal education of our judges is commendable and needs to continue with even more vigour to equip the judges with the requisite skills and knowledge to entertain and adjudicate intellectual property matters effectively. In view of the above conclusion, it is recommended that, an IP section/division of the
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Footnotes
1
2 Cap C28 Laws of the
3
4 Section1 (2) Copyright Act, Cap C28, Laws of the
5 https://www.copyright.gov/help/faq/faq-general.html accessed
6 Unreported: Suit No: FHC/ABJ/CS/145/2019, ruling delivered on 25th
7 Section 2 Copyright Act, Cap C28 Laws of the
8 Section 11 Copyright Act (Supra).
9 (2021) LPELR-53534(CA) (p. 32) available at https://primsol.lawpavilion.com/analytics?ratio=lkkcoin&court=appeal accessed 27th
10 (2017) LPELR-50121(CA).
11 (2004) LPELR-12872(CA) (p. 7), See also
12 Adeokin Records & Anor v.
13 Copyright Act, Cap C28 Laws of the
14
15 WIPO, "
16 WIPO, "Copyright Registration and Documentation Systems" available at https://www.wipo.int/copyright/en/activities/copyright_registration/index.html accessed 21st
17 See Article 9 TRIPS Agreement (The Agreement on Trade-Related Aspects of Intellectual Property Rights) - https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm.
18 Section 34 (3) Copyright Act, Cap C28 Laws of the
19 NCC FAQS, "Is my work required to be registered as a condition for Copyright protection?" available at http://www.eregistration.copyright.gov.ng/ncc/faq accessed 24th
20 NCC, "About NCeRS" available at http://www.eregistration.copyright.gov.ng/ncc/about accessed 27th
21 The Bill was drafted by a committee constituted by the
22 See
23 https://nass.gov.ng/documents/bill/11019 accessed 23rd
24 https://www.thisdaylive.com/index.php/2021/06/08/bill-to-repeal-22-year-old-copyright-act-passes-second-reading-at-senate/ accessed 23rd
25 Particularly Section 46.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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