Fundamental Elements of Copyright Ownership and Protection Under Nigerian Law – Sandra Eke

Intellectual Property

7th November 2019

 

Sandra Eke[1]                  

Fundamental Elements of Copyright Ownership and Protection Under Nigerian Law

A Copyright is a legal protection granted to creators or originators of creative expressions, whether Literary, Musical, Artistic or Cinematographic works or an adaptation of any of these eligible works. It confers an exclusive and assignable right to the originator of the work, which though exclusive to the author, is subject to the recognised legal rights of others. It is not sufficient that an idea or concept has been formulated in the creator’s mind, such work must also be expressed or fixated in some medium, such as paper, diskettes, flash drives, CD-ROM, VCD, DVD etc., for it to be protected.[2] In some jurisdictions, the protection granted has less regard for how good or sophisticated the work is, rather the emphasis is on the originality of the work. While some other jurisdictions, like a few common law countries, require that some level of skill and judgement must have been expended in creating the work, Nigerian law requires that the author must have expended sufficient effort to give the work an original character.[3] In addition to skill and judgement, some civil law countries[4] require creative efforts and a demonstration of the author’s personality in creating a work.[5]

 

  1. What Are the Applicable Copyright laws or regulations in Nigeria?

The Copyright Act[6] is the principal law that protects copyrighted works in Nigeria. The Nigerian Copyright Commission (NCC) is the body charged with the responsibility of administering the Copyright Act. Asides the Copyright Act, there are some other regulations like the Copyright (Optical Discs Plants) Regulations 2006, Copyright (Collective Management Organizations) Regulations 2007, and Copyright (Levy on Materials) Order etc.

In addition, Nigeria is a signatory to some international treaties, agreements and conventions like the Berne Convention (1886), The Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement (1994), WIPO Copyright treaty (1996) etc., which have also stipulated additional prescriptions to be observed by members or signatories.

  1. Are all works eligible for Copyright protection?

Not all kinds of works are eligible for Copyright protection in Nigeria. Section 1 of the Copyright Act stipulates that the various kinds of works that are protectable in Nigeria are:

  1. Literary works;
  2. Musical works;
  3. Artistic works;
  4. Cinematograph films;
  5. Sound recordings; and
  6. Broadcasts.

It should be noted that formulas or equations, ideas, or things of a related nature do not enjoy Copyright protection in Nigeria.

The Copyright Act further prescribes additional connecting factors to be met before a putative author of a work can claim copyright protection in Nigeria. The author must be a Nigerian citizen or must be domiciled in Nigeria or should be a company incorporated in Nigeria and the work must have been first published in Nigeria.[7] Copyright protection could also be conferred on works of authors or corporate bodies from other jurisdictions who are a party to international treaties, agreements or organisations to which Nigeria is also a party, upon satisfaction of the condition that on the day the work is first published, at least one of the authors is a citizen or corporate body established under the laws in the country which is a party to an international agreement or organisation Nigeria is also a party.[8]

  1. Is registration a condition for copyright protection?

Generally, registration is not required for copyright protection, since copyright protection is automatically enjoyed upon creation and fixation of the work in a definite medium of expression. In addition, the Berne Convention prohibits compliance with any formalities before the enjoyment of copyright protection in member states who are signatories to the convention.[9] This provision was revised in the 1908 Berlin revision of the Convention by the present rule of formality-free protection, contained in Article 5(2) of the Paris Act 1971, which clearly stipulates that the enjoyment and the exercise of copyright shall not be subject to any formality.[10] While incorporating and abiding by the principles of the Berne Convention, most member states have introduced voluntary national registration or notification systems for copyrights, which accords better protection and benefits to copyright holders. For instance, in the United States, copyright registration provides verifiable evidence of authorship and entitles a claimant in a copyright infringement action to statutory damages.[11] It also entitles the owner of a copyright to deposit his work in the database of the U.S. Customs and Border Protection (CBP) as a shield against the importation of works that infringe on the right of the copyright owner.[12]

In Nigeria, the Nigerian Copyright Commission has introduced an online notification database to assist authors and creators in protecting their works more effectively.[13]

4. What are the benefits of lodging a notification of a work with the NCC? The records compiled by the NCC serves as an independent source of vetting the authenticity of data relating to a copyrighted work or its ownership, to the general public;[14]

  • The database of the NCC provides useful and accessible information to prospective licensees.
  • The acknowledgement certificate issued by the NCC to the originator of the work serves as prima facie evidence to establish creation and ownership of a work;[15]
  • The records contained in the notification database also helps in the collation of national statistics on creativity and culture;[16]
  • The NCC ensures that original copies of works lodged are well preserved in its depository. The Copyright Act mandates the NCC to maintain a database for all works lodged.[17]

5. What is the procedure for lodging a notification with the NCC?

To lodge a notification at the NCC, the Applicant is required to file an application with the following accompanying documents:

  1. A completed registration form.
  2. Two (2) copies of the work.
  3. Evidence of payment of the prescribed fee.
  4. A letter of authority duly executed by the author of the work, authorizing his lawyer/agent to lodge the copyrighted material or to receive the certificate of registration on the author’s behalf.

The NCC identifies some additional information required to complete the registration form:[18]

  • Title of the work.
  • Medium in which the work is represented (e.g. CD, Paper, VCD, DVD etc.)
  • Year of Creation of the work. This should be the year it was first fixed in a tangible medium.
  • Year and country of publication (if published).
  • Bibliographic and other registration Information (ISSN, ISBN or Others).
  • Details of Co-owner if any (Full name, address, email, mobile number).
  • Full details of Author (Including date of birth, nationality, and country of residence).
  • Indicate if the work is based on a previous edition or pre-existing work.
  • Name, email address and mobile number of correspondent (Person to contact for licenses and permission).
  • Where Applicant is not the original author/copyright owner, but has acquired a right in the work, the particulars of such right should be provided. State the nature of transfer, whether it is a licence or an assignment; the parties, territory covered and duration, where applicable.[19]


6. Conclusion

Copyright protection confers exclusive rights to an originator of a work, which gives the author an opportunity to enjoy certain privileges ranging from the rights to reproduction, distribution, and adaptation of the work to rights of public performance, broadcasting and communication of the work to the public etc.[20] These rights also have several limitations enshrined in the Copyright Act.[21] Although, registration of a copyrighted work is not a pre-condition for copyright protection, the benefits of lodging a notification of a work with the national depository far outweighs any perceived negatives.[22] With the growing number of copyright infringement cases and the difficulties associated with proving prior ownership or authorship of a work, depositing a work in the robust databank of the NCC, would be a wise decision for authors and creators to undertake, and an IP lawyer’s professional services should be retained in this regard.

 

 

For further information on this article and area of law, please contact

Sandra Eke at: S. P. A. Ajibade & Co., Lagos

by telephone (+234 1 472 9890), fax (+234 1 4605092)

Mobile: +234.7033442333 or Email: seke@spaajibade.com

www.spaajibade.com

1     Sandra Eke, Associate, Intellectual Property & Technology Department, SPA Ajibade &    Co., Lagos, NIGERIA.

[2]     S.1 (2) Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004.

[3]     Ibid.

[4]     Like China, Brazil and Czech Republic.

[5]     For instance, an author who first published a judgement of a court would not be eligible for copyright protection over verbatim extracts of the judgement, although some level of skill and labour may have been expended in searching through law reports and citing relevant sections of the judgment. On the contrary, he would enjoy copyright protection over the headnotes, or a summary of the judgment created by him, since these additional steps would satisfy the requirements of creativity and originality.

[6]     Cap C28, Laws of the Federation of Nigeria 2004.

[7]     Sections 2, 3 and 4 Copyright Act.

[8]     Section 5.

[9]     WIPO, “Copyright Registration and Documentation Systems” available at: https://www.wipo. int/copyright/en/activities/copyright_registration/index.html accessed 10th October 2019.

[10]    Ibid.

[11]    S.411 Copyright Law of the United States, Title 17 United States Code, 2016.

[12]    United States Copyright Office, “Circular 1: Copyright Basics” available at: https://www.copyright. gov/circs/circ01.pdf accessed 23rd October 2019.

[13]    Federal Ministry of Communications “Ncc unveils E-Registration Platform to Check Piracy”

available at: https://www.commtech.gov.ng/news-and-media/daily-news-report/118-ncc-unveils-e-registration-platform-to-check-piracy.html accessed 23rd October 2019.

[14]    NCC FAQS, “Why should I register my work, If registration is not a condition for Copyright protection?” available at: http://www.eregistration.copyright.gov.ng/ncc/faq accessed 11th October 2019.

[15]    Ibid.

[16]    WIPO, “Copyright Registration and Documentation Systems” available at: https://www.wipo.int/ copyright/en/activities/copyright_registration/index.html accessed 10th October 2019.

[17]    S.34(3)(e) Copyright Act.

[18]    NCC, “Tips for completing the application form” available at: http://www.eregistration. copyright. gov.ng/ncc/help accessed 10th October 2019.

[19]    Ibid.

[20]    S.6(1), 7 & 8 Copyright Act.

[21]    Paragraphs (a) – (p), Second Schedule of the Copyright Act.

[22]    It is recommended to redact all confidential/proprietary data and information from any material submitted to the NCC online database to ensure that these are kept from the public domain.

 

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