LICENSING AS A TOOL FOR CURBING PIRACY IN NIGERIAN COPYRIGHT INDUSTRY, October 2008

LICENSING AS A TOOL FOR CURBING PIRACY

IN NIGERIAN COPYRIGHT INDUSTRY

BY

ALUKO, OLUWASEGUN SAMSON

[LAW/2002/074]

BEING A LONG ESSAY SUBMITTED TO

THE FACULTY OF LAW

OBAFEMI AWOLOWO UNIVERSITY

ILE IFE, OSUN STATE, NIGERIA

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS (LL.B) HONOURS DEGREE

October, 2008

CERTIFICATION

This is to certify that this LONG ESSAY was written by ALUKO, OLUWASEGUN SAMSON [LAW/2002/074], a Part V Student of the Faculty of Law, Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria under my supervision and approval, subject to the acceptance by the candidate of full responsibility for all errors still discoverable therein.

________________________                                                _______________________

Supervisor                                                                                                     Date

Mr. O. S. Opadere

Department of International Law

Faculty of Law

Obafemi Awolowo University

Ile-Ife, Osun State, Nigeria

DEDICATION

This Long Essay is dedicated to the Almighty God

and the People who had touched my life in a positive way

– my family, mentors, teachers, and friends.

ACKNOWLEDGEMENTS

My profound gratitude is expressed to my God.

He guides my path and has brought me this far.

My Father and Mother have been a touch guiding my path in life. Thank you so much for bringing me to this life. I will not let you down.

To you, ‘Funbi, and Setemi, thank you for allowing me to mentor you as lovely sisters. You’re simply the best girls to have as sisters in the whole wide world!

Thank you so much Mrs. Sumbo Akintola for being a wonderful mentor, helping me build the blocks of my career. You have really been expectantly beautiful.

Thank you my teacher and friend, Mr. Olaolu Opadere, for your fatherly advise and the supervision of this long essay. I am humbled at your art of listening and stupendous wisdom with which you tackle every situation. You are a good man.

Thank you, Aluko & Oyebode, and the great minds there,

 for imparting knowledge into me.

My Special Friend, Ayodeji Olomojobi “Pado”, Bisi Akinkugbe, Tunde Osadare,

Bola Odepe, Yemisi Olumide (my beautiful sister), Barbara Akpotaire

thank you for being friend to me, young enough to be your brother.

To all my friends:

Moyo Fawole, Princess Tayo Ibironke, Akindele Phillips, Akin Olatuji, Tosin Anuodo (your criticisms help me ponder over my life – thank you), Abiodun Bakare (we’ve been together since the beginning of this dream – you’re a good friend), Oyeshina Oyedunle (great mind and the ladies man…lol!), Tunde Ogundare, Moyosore Odeyemi, Ibitayo Durosomo, Ayodele Akinsanya (my roomie, thank you for tolerating me), Tolu Ogunwumi, Gbenga, Kayode, Femi (my flat mates), Ife Opeyemi, Moyosoluwa Onamusi, Aramide Oluwaseyi Alade - my Jamaican friend (thank you for listening to me), Titilayo Phillips (thank you for making me discover the other side of me), Mr. Lanre Akinsola, Chuka Ikuazom, Austin Obieje, Otunba Tokunbo “Pepper” Wahab, Tofe Alade-Adeyefa, Tunde Tijani. To all the girls that make the world beautiful. Pastor Kazman, thank you for helping my spirit with your messages, I will never forget my peeps in Heart to Heart, and of course His Passion Production. Adeeso Adetoye, you infuse this leadership spirit in me. Wish you the very best. And to every other person, thank you!!!

To the LAW/2002/Class, I’m glad I met you all. Long life for us and I wish everyone the very best of life.

To You, Jolly Christian Centre, Christ Love Fellowship, Liberation Chambers, Faculty of Law, Obafemi Awolowo University, I’m happy I pass through you, and you also pass through me. Thank you for allowing me to make good use of you.

From

Segun Aluko

Friday, 10 October 2008

14:41 GMT +1

TABLE OF CONTENTS

Title Page                                                                                                                              i

Certification                                                                                                                          ii

Dedication                                                                                                                             iii

Acknowledgement                                                                                                              iv

Table of Content                                                                                                                   vi

List of Abbreviation                                                                                                                        x

Table of Statutes                                                                                                                   xii

Table of Cases                                                                                                                      xiii

Abstract                                                                                                                                 xvi

Chapter One

1.0         General Introduction                                                                                                1

1.1.       Intellectual Property Rights                                                                                     3

1.1.2 Trademarks                                                                                               3

1.1.3 Patents and Designs                                                                                4

1.1         Concept of Copyright                                                                                                            5

1.2         Evolution of Copyright                                                                                             8

1.3         General Nature of Copyright                                                                                   11

1.3.1   Nigerian Music Industry – An Overview                                            13

1.3.2   Nigerian Film Industry – An Overview                                               18

1.3.3   An Overview of the Copyright Act Cap C24,

Laws of Federation of Nigeria, 2004                                                     21

Chapter Two

2.0         Basic Rights of A Copyright Owner: Primary Infringement                            23

2.1         Introduction                                                                                                                23

2.2         The Reproduction Right                                                                                           27

          2.2.1 Musical works                                                                                                   34

          2.2.2 Films                                                                                                                    35

2.3         The Distribution Right: Issue of Rights to the Public                                           36

2.4         The Rental and Lending Rights                                                                               37

2.5         Public Performance Right                                                                                         39

2.6         Broadcasting and Cable Rights                                                                                41

2.7         The Adaptation Rights                                                                                              43

2.8         Authorisation                                                                                                              44

Chapter Three

3.0         Secondary Infringement of Copyright                                                                  47

3.1         Introduction                                                                                                                47

3.2         Dealings in infringing copies (Piracy)                                                                    47

3.2.2 Infringing copy                                                                                                  48

3.2.3 Importation of Copyright Work                                                                      48

3.2.4 Exhibition of Work in Public                                                                           50

3.2.5 Distribution of Work                                                                                        50

3.2.6 Knowledge                                                                                                         51 

3.2.7 Internet (File-sharing and peer to peer dealing in copyright works)        52

3.3 Providing the means of making infringing copies                                                   56

3.4 Permitting or enabling public performance                                                              56

3.5 Ways of Countering Infringement or Piracy of Copyrights                                    58

          3.5.1 Identified Methods of Curbing Piracy in Nigeria                                        58

3.5.2 Remedies                                                                                                                        62

3.5.2.1 Conversion Rights                                                                                     63

3.5.2.2 Damages                                                                                                     63

3.5.2.3 Injunction                                                                                                    65

          3.5.2.2.1 Mareva Injunction                                                                         66

                   3.5.2.2.2 Antom Piller Injunction                                                               67

   3.5.2.4 Other Remedies                                                                                           70

Chapter Four

4.0         Licensing                                                                                                                     71

4.1         Concept of Licensing                                                                                                 71

4.1.1       Licenses v. Assignment                                                                              72

4.2         Forms of Licenses                                                                                                       74

4.2.1             Exclusive Licence                                                                                        74

4.2.2             Non-Exclusive License                                                                               77

4.2.3             Compulsory License                                                                                   77

4.3         Licensing as a tool for curbing piracy in Nigerian Copyright Industry           78

4.3.1             Music Licensing                                                                                           82

               4.3.1.1 Elements of Music Licensing                                                         83

4.3.2             Film Licensing                                                                                              84

4.3.3             Collective Licensing                                                                                   86

4.3.3.1   Collecting Societies in Nigeria                                                      89

4.3.3.2   Experiences in other Jurisdictions

(United Kingdom, and United States)                                                      92

4.3.3.3   Applying those experiences to Nigerian Copyright

                        Industry                                                                                93

Chapter Five

5.0         Conclusion and Recommendations                                                                       95

5.1         Exploring Licensing in Nigeria                                                                                96

5.2         Making Collective Societies work in Nigeria                                                        97

5.3         The Role of Lawyers in Copyright Licensing Transactions                                98

5.4         Proposed Copyright Law Reform                                                                           99

Bibliography                                                                                                                         102

  

LIST OF ABBREVIATIONS

A. C. ……………………………………….………………………………… Appeal Cases

All E. R. …………………………..……………………………...…….. All England Report

C.A. ………………………..…………..…… Nigerian Copyright Act, Cap C28, Laws of the Federation of Nigeria, 2004

C. A. ………………………………………………………………….……. Court of Appeal

C.D. ……………………………………………............................................... Compact Disc

C.D.P…………………….… United Kingdom Copyright, Patent and Designs Act 1988

Ch. ……………………………………….……………………………..…. Chancery Report

D.V.D. ………..………………………………………………………… Large Capacity CD

F.D.I. ……………………………...……………………………. Foreign Direct Investment

F.H.C. …………………………………...………………....................... Federal High Court

F.H.C.L.R …………………..…………………………… Federal High Court Law Report

F.S.R. ……………………………………………………………………….

H.L. ………………………….………………..……………………………. House of Lords

Ibid ……………………………….………………………….. In the Book Just Mentioned

I.P.T.T.O. ………………………. Intellectual Property and Technology Transfer Office

I.P.R. ……………………..…………………………………..  Intellectual Property Report

K. B. ………………...………………….…………………………………….... King’s Bench

L.F.N. …………………………………………………. Laws of the Federation of Nigeria

Mac. Cas. ……………………………………………………..

M.C.S.N. …………………………….……………. Musical Copyright Society of Nigeria

M.T.V ……………………………………...………………. Music Television, Inc. Europe

N.A.F.D.A.C. ..………………. National Agency for Food Administration and Control

N.C.C. …………………………..……………………… Nigerian Copyright Commission

N.F.V.C.B. …………………………………….. National Film and Video Censors Board

Nig. ………………………………….………………………………………………. Nigeria

N.O.T.A.P. ………...…. National Office for Technological Acquisition and Promotion

N.W.L.R. ……………………………….………….………. Nigerian Weekly Law Report

N.Z. High Ct. ……………..…………………………... New Zealand High Court Report

Op. Cit. …………………………………………………..In the Work Already Mentioned

P.M.A.N. ………………………………… Performing Musicians Association of Nigeria

P.M.R.S. ……...……………………………... Performing and Mechanical Rights Society

R.P.C. ……………………………..………………………………... Report of Patent Cases

S. C. .………………………………………………………………..……….. Supreme Court

Q. B. ……………………………..…………………………….…………….. Queen’s Bench

Q.B.D. …..…………………………………..…………………….. Queen’s Bench Division

U.D.H.R. …………………...…………………… Universal Declaration of Human Right

V.C.D. …..…………………………………………………………….. Video Compact Disc

W.L.R. ………………………….…………………………………….. Western Law Report

TABLE OF STATUTES

1.       Trademarks Act, Cap T13, Laws of the Federation of Nigeria, 2004

2.       Patents and Designs Act, Cap. P2, Laws of the Federation of Nigeria, 2004

3.       Copyright Act, Cap. C28, Laws of Federation of Nigeria, 2004

4.       Universal Declaration of Human Rights (UDHR) (1948-1988)

5.       Registration of United Kingdom Patents Act, Cap. 182, LFN 1958

6.       Patent Right (Limitation) Act, 1968

7.       Patent Act, 1949(Registration of United Kingdom Patent Act)

8.       Copyright Designs and Patents Act (CDPA) 1988

9.       National Office for Technological Acquisition and Promotion (NOTAP) Act, Cap. N18, Laws of Federation of Nigeria, 2004

TABLE OF CASES

A

American Motion Picture Export Co. (Nig) Ltd v. Minnesota (Nig) Ltd

[1981] F.H.C.L.R 64………………………………………………………………………..  58

Antom Piller K.G. v. Manufacturing Process (1976) Ch. 65 ……………………… 67, 69

Austin v. Columbia Gramophone Co. Limited [1917-23], Mac. Cas. 398 …………… 34

B

Bilhoffer Mchinenfabrik GmbH v. Dixon & Co. Ltd [1990] F.S.R. 105 at 108 ………. 33

Blair v. Osborne and Tomkins (1971) 2 Q.B. 78, C.A. …………………………………. 77

Booker McConnell v. Plascow [1985] R.P.C. 424 at 442 ………………………………. 70

Bryne v. Statist Co. [1914] 1 K. B. 622 ………………………………………………...… 43

C

CBS Songs Ltd v. Amstrad Plc [1988] A. C. 1013 HL …………………………………. 45

D

Designer Guild Limited v. Russell Williams (Textiles) Limited

(2001) 1 All E.R. 700 …………………………………………………...……. 7, 29, 31,32, 34

Duck v. Bates [1884] 13 QBD 843 ……………………………………………………….. 40

D’Almaine v. Boosey (1935) 1 Y&C Ex. 288 ………………………………………….… 34

E

Electronic Techniques (Anglia) Ltd v. Critchley Components Ltd

[1997] F.S.R. 401 at 409 ……………………………………………….…………………... 32

E.M.I. v. Pandit (1975) ……………………………………………………………………. 67

Ernest Timer, etc, Ltd v. Performing Right Society Limited [1943] Ch. 167 ………... 40

F

Falcon v. Famous Players film Co. [1926] 2 K.B. 474 at 499 ………………………..… 45

Francis Day & Hunter v. Bron (1963) Ch. 587, CA ………………………….… 33, 34, 52

I

Infabrics Ltd. V. Jaytex Shirt Co. Ltd [1978] F.S.R. 451………………………..……..... 51

Ibcos Computers Ltd v. Barclays finance Ltd [1994] F.S.R. 275 ……………...………. 32

Island Records Ltd & Ors v. Pandulum Technical Sales &Services Ltd & Anor

[1993] F.H.C.L. 318 at 328 ………………………………………………………..………. 56

L

Ladbroke (Football) Limited v. William Hill [1964] 1 W.L.R. 273 …………….…. 30, 32

M

Masterpiece Investments Limited & Anor v.

Worldwide Business Media Limited & Ors (1997) F.H.C.L.R. 496 …………….……. 29

Maurice Ukuoha v. Broad-Based Mortgage Finance Limited & Anor

[1997] F.H.C.L.R 477 ……………………………………………………………………… 58

Mellor v. Australian Broadcasting Commission [1940] AC 491……………………… 72

McConnell v. Plascow [1985] R.P.C. 424 at 442 ………………………………………... 70

N

Nigerian Copyright Council v. Musical Copyright Society of Nigeria & Ors.

(1999) F.H.C.L.R. 419………………………………………………………………….…... 61

Norowzian v. Arks Ltd [1998] F.S.R. 394 ………………………………………………. 36

P

Plateau Publishing Co. Ltd & Ors v. Chief Chuks Adophy

(1986) 4 N.W.L.R. 205 SC at 208 – 210 …………………………………………………... 59

Plix Products Limited v. Frank M. Winston (Merchants) Limited

[1983-85] 3 IPR 390 at 414, NZ High Ct. ……………………………………………...… 72

Performing Right Society v. Hammond’s Bradford Brewery Co. Limited

[1934] Ch. 121 ……………………………………………………………………………... 40

R

Ravenscroft v. Herbert (1980) RPC 193 …………..………………………………… 29, 44

S

Schroeder Music Publishing v. Macaulay [1974] 3 All E.R. 616 …………….…… 72, 84

Sillitoe v. McGraw-Hill Book Co. [1983] F.S.R. 545…………………………….……… 51

T

Thomas v. Sorrell (1673) Vaugh 330 at 351 ……………………………………...……... 71

U

Universal Music Australia v. Sharman (2005) FC Australia 1242 (ADD) …………... 29

W

Williamson Music Limited v. Pearson Partnership (1987) FSR 97, 109 ……………... 13

Wiseman v. George Wiedenfeld & Nicolson [1985] F.S.R. 525 ………………………. 43

X

XYZ Music GmbH v. King [1995]2 All E.R. 129 ……………………………………….. 52

Abstract

The Nigerian music and film industries have grown exponentially in recent years albeit through many challenges; this growth has become evident in our daily lives both locally and internationally. The Nigerian musicians now enjoy quality air play on local and foreign airwaves including satellite channels both in Africa and Europe. The Nigerian music industry is not alone in this regard, as the film industry is blazing the trail amidst criticisms on home front on its video quality, and the plots of those movies. One thing is, of course, certain: The Nigerian copyright industry particularly, the music and the film industries, have become a force to reckon with in our national life as Nigerians. They emphasize our identity as Nigerians both home and abroad. Moreover, the copyright industry has shown so much profitability in recent times, hence the problems militating against it.

One major problem bedevilling this industry, amidst others, is the gangrenous virus which has eaten deep into its fabric and in fact threatened its existence: infringement of copyright in the cloak of piracy. Attempts have of course been made in countering this disturbing act which has often led to loss of investment and profit accruable to copyright authors, owners, assignees and licensees. The Nigerian Copyright Commission recently introduced the Strategic Action Against Piracy (STRAAP) in 2005. The Nigerian Copyright Commission also recently released a regulation whereby 15 Optical Disc Producing factories in Nigeria and other factories will now have to register with the NCC. The Regulation which was signed into law by the Minister of Justice further provides that the factories are now required to also procure licences; require the plant’s use of Source Identification Code (SID) (mastering LBR Code & mould Code) on all discs produced and sold in Nigeria; and also to empower the government authorities to inspect plants and take deterrent action against any plants found to be operating outside the law. Besides, the Performing Musicians Association of Nigeria (PMAN) under its past chairman, Charles ‘Charley Boy’ Oputa had been reported in the electronic media to have organised and indeed engaged in public outcry and even unexpected visits to the Alaba International Market, Lagos confiscating pirated CDs and burning infringing copies worth multi-billion Naira. It is however disheartening that little had been achieved in the war against piracy in Nigeria.

This work which is in five chapters shall therefore focus on the general nature of copyright, the basic rights of a copyright owner vis-à-vis first infringement, through second infringement which shall look at dealings in copyright works. Furthermore, we shall also consider the basic forms of piracy and the present development with respect to internet file-sharing and peer to peer dealings of copyright work. The work shall consider the ways of countering acts of piracy in the Nigerian Copyright Industry and recommend licensing as a way of curbing piracy in the Nigerian Copyright Industry.

In this recommendation, the work shall explore the basic forms of licensing with copious reference to voluntary and collective licensing of both the musical and film works in Nigeria. In its explanation, we shall delineate the experiences of other jurisdictions particularly, United States of America, and United Kingdom and seek how these discoveries can be applied to the present situation of the Nigerian Copyright Industry.

In conclusion, we shall focus on making licensing work in Nigeria by making a case for collective licensing thus expound the role of the present Collecting Societies in Nigeria. We shall also consider the role of lawyers in this transaction and finally, identify some proposed reforms in the Nigerian Copyright law to accommodate the development in recent times.

Aluko Oluwasegun Samson

LAW/2002/074

October, 2008

Chapter 1

1.0         Introduction

The right of an artist, author or creator of a work has been recognised and given effect in law overtime. This right has become known as perpetual, inalienable, and imprescriptible[1]. The right of an author to the exclusive use of his work, which is considered similar to holding of a tangible property, is extant in the product of his intellect. This is considered a product of the author’s skill and labour which therefore deserves remuneration. Different theories[2] have argued therefore, on the justification of this right. The natural theory likens the right of an author to the right of a holder of an interest in land which the law protects. The theory posits that inasmuch as the work in question is a product of the skill or intellect of the author, he should enjoy exclusive right in the use of such work; and any use of the work must be authorised by him, or subject to certain remuneration.

Another theory considers the right of an author based on the reasoning that without his/her intellectual prowess, the society might not record the development present; therefore the need to grant the author an exclusive right to the work as a form of compensation in order to encourage new development in the society. This is the incentive theory. Other theories, reward and social theories[3], also posit that the author should be rewarded for making useful his work, and the law must be used to guarantee this reward so that the work can receive sufficient recompense for their ingenuity; and that temporary protection should be granted as reward for knowledge of the new work.

These theories of justification for copyright protection of work of an author, despite criticisms, have over time suggested the right of an author in the work to the exclusion of any other person whatsoever from using the work without his/her prior authorisation. However, this right has been subjected to breach by the society through acts of piracy and infringement which have eaten deep into its operations. The need to stem the tide of piracy is not only limited to Nigeria, it is in fact global. The activities of pirates are rife and sophisticated through the use of computer softwares, internet file sharing, and other gadgets. It however appears that the activities of governments and other stakeholders at combating the pirates’ acts on the copyright works proved little results. It is noteworthy that the rationale behind the principle of copyright is basically to achieve a balance between the rights of an author to the exclusive use of his/her work and to avoid unauthorised usage on one hand; and the right of the society to share in the knowledge or innovation.[4]

This long essay will therefore consider, amongst other tools, licensing as a tool for curbing piracy in the Nigerian copyright industry. This is based on the UDHR Declaration of 1948 and the latent realisation that as the author seeks to protect his/her work against unauthorised usage, and hopes to get remuneration for any usage; the society also look forward to making use of the work, and where such is not readily available, the growing populace of users will always look elsewhere to get it; thus encouraging piracy in our society. The essay will therefore delineate the role of licensing streamlining it to the role of collective licensing, with copious reference to its operations in other jurisdictions.

1.1     Intellectual Property Rights

Intellectual property is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill.[5] As the name implies therefore, intellectual property is the property resulting from the human mind, or the human intellect. This right has been given efficacy by the law which deters others from copying or taking unfair advantage of the work or reputation of another and provides remedies, should this happen.[6] The proprietary right created for such owner or author has become noted as either of the concepts of the intellectual property rights, which include:

i.               Copyrights;

ii.            Patents & Designs which include other rights as industrial designs, technical know-how and trade secrets;

iii.          Trademarks and others.

1.1.1  Trademarks

The concept of trademarks as a genre of intellectual property rights has spanned centuries. Trademark as an intellectual property right concerns the right of an author of such mark to the exclusive commercial use of the mark and to prevent any other person from using the mark. Trademark is defined in section 65 of the Trademarks Act[7]:

a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right either as proprietor, or as registered user to use the mark whether with or without any indication of the identity of the person. (Emphasis mine).

 Although service marks are not provided for in the Act, it must be noted that by virtue of section 45 of the Act, the Honourable Minister of Commerce and Industry is empowered to make regulations for the operation of the Act. Thus, service marks have become recognised in Nigeria in Classes 44 and 45[8] and are presently awaiting publication in the National Gazette.

Besides the foregoing, it is important that we are aware of the development in other jurisdictions particularly America, and Europe where other forms of Marks have become recognised and enforceable. Such marks include sound marks, smell marks, etcetera.

1.1.2  Patents and Designs

The patents and designs as intellectual property rights became enforceable at law based on the justification for the rights. This right protects an inventor who owns a property right in his invention – a natural right which also accords with the views on the property right of philosophers such as John Locke[9]. The reason for this right is based on the major theories for the justification of such protection since it is believed that without the invention of such person, the society might not be able to experience the development of present day world in science and technology. Encouragement, inducement and reward are the main factors underlying the patent system.

Patent is the monopoly granted to an inventor in respect of his invention which of course means technical improvements whether great or small which contains at least an element of inventiveness over what is previously known. Literally, a patent is a document issued upon application to a government office and fulfilment of certain basic preconditions. This document describes an invention and creates a legal situation in which the patented invention can normally only be exploited; in other word, manufactured, used, sold or imported with the authorisation of the patents owner. In Nigeria, patent administration and scope is governed by the Patents and Designs Act, Cap P2, Laws of the Federation of Nigeria 2004.[10] The Patents and Designs Act was enacted on 1^st December, 1971 fashioned against the UK Patents Act. Formerly, Patents applications are made in the United Kingdom for the purpose of enforcement in Nigeria.[11]

1.2     Concept of Copyright

The concept of copyright is quite distinct from other forms of intellectual property in that while others are creation of ideas, copyright is the expression of those ideas. Copyright covers the right of the owner in literary, musical and artistic works including dramatic works, broadcasts, and sound recordings. Trademarks cover marks in respect of goods as provided for in the Act, while patents cover inventions and technical know-how.

Copyright is that area of intellectual property law which covers the rights of the Intellectual property rights owner, producer or creator to the exclusive use of his/her product free from use by any other person. The concept of copyright protects the right of an author or owner of literary, musical, and artistic works. More so, it protects other works like cinematograph films, sound recordings, and broadcasts.[12] It must be noted at this juncture that copyright will not vest in an idea since copyright only governs the expression of such idea.

By the provisions of the Act,[13] a work may not be eligible for copyright if it does not fulfil the conditions specified in the Act. These conditions include:

(i)            Originality; and

(ii)         Fixation.

For copyright to vest in a work, the work must be original. The condition of originality basically provides that the work must be the product of the supposed owner’s intellect, skills and hard work; as copyright will not protect a work which absolved the owner of adequate skill and work in its production. The Act provides that “sufficient effort has been expended on making the work to give it an original character”.[14] Moreover, the work must have 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. This condition emphasizes that copyright will not subsist on an idea as it is not the responsibility of the Court; in fact, the court would not waste its time on a cause for the protection of idea.[15] Although intellectual property unlike the real property is not tangible, it must be in a nature of being easily perceived, reproduced and communicable.[16] However, a work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.[17] It must be noted that notwithstanding the fact that the making of a work or the doing of any act in relation to the work involved, an infringement of copyright in some other work will not affect the eligibility of such work for copyright.[18]

Unlike other intellectual property rights which require registration in the relevant registries and commissions of the State, registration is not totally necessary for copyright to subsist in a work; the work needs only be fixed and original. The provisions of section 14 of the Act provides that the publisher shall keep a register which must include the name of an author; the title of the piece; year of production; and the quantity of the work produced. Further, section 34(3)(e) of the Act mandates the Nigerian Copyright Commission (NCC)[19] to maintain a databank on authors and their works, which is only for evidential purpose. Keep in mind that this is in no way a certificate of registration for issuance of copyright on a work but just for record purposes in the archives of the, NCC, national library, and for public notice for which a certificate is issued, upon payment of requisite fees, by the NCC to the owner/author.

1.3     Evolution of Copyright[20]

The concept of copyright evolved as a result of frantic search for the means to adequately protect the interests of authors and publishers.[21] The need to protect the right of authors of artistic, literary, and musical works had been realised over time by the developed countries, on the need to preserve and protect the livelihood of these authors whose contribution has brought about development to their society. In some cases therefore, these authors may have gained their livelihood by providing services against remuneration. In other cases, the author occupies a post in the household of ruler or magnate in return for his services by receiving board or lodging or any other thing by way of remuneration. The moral basis for the protection of author’s rights has been appreciated for as long as the profession of author has existed.[22] Plagiarism although widely practiced by individuals has been condemned by public opinion. At that time, plagiarism and unauthorised copying of author’s works or at least literary ones were a long and costly process while the market for such works was greatly restricted and the economic returns in respect of making of unauthorised copies was snubbed, which therefore, did not present a sufficiently urgent case for the enactment of legislation in protection of author’s rights.

The advent of the printing press introduced in England in 1476 by William Caxton changed the scenario. The legal protection of authors’ rights was first recognised in England in 1518 when the King issued the first copyright privilege to Richard Pryson, who was the King’s printer and successor to William Caxton. Copyright privileges were called “monopolies” particularly during the reign of Queen Elizabeth, which were for a term of two years[23].

The Statute of Monopolies, 1623, ended most monopolies with certain exceptions, such as patents and in the same year, grant of letters patent to publishers became popular[24]. The Act of Queen Anne 1907 marked the period when common law copyright for Great Britain was brought to a close. Between 1556 and 1641, the English Crown exercised authority over printing and the Stationers’ Company through the Star Chambers Decree 1586 granting the Charter of a Stationer’s Company. Note that it was obligatory from the Company’s beginnings for the members to enter into the company’s register the works which they claimed the right to copy including books, pictures, sermons, etc. For this purpose, it was established that the person making the entry in the register had the exclusive right in perpetuity to copy the work. After the abolition of the Star Chamber Decree in 1641, the English Parliament continued to extend the Stationers’ Company’s censorship/monopoly arrangement through a series of ordinances and licensing Act between 1643 and 1692[25].

Perhaps one of the earliest uses of the expression, “copyright” was recorded by the literary historian, Roy Wiles as it occurred on an assignment dated October 2, 1740. The use of that work meant the exclusive right to copy and except for the implied rights to copy, there is nothing else[26]. It was, at that time, not regarded as an author’s right but a publisher’s rights in the guise of booksellers and printers who created these rights for themselves as necessary protection for their businesses. It was this right that the English Statute adopted and limited in 1709; although under the statute, the author became entitled to hold copyright. The interest protected was still, essentially in its practical effect, the publisher’s exclusive right to copy[27].

The promulgation in 1710 of the Statute of Anne[28] which was widely regarded as the first copyright law created a system of monopoly rights similar in many ways to the Stationers’ Company’s private system, it however introduced three major changes;

(i)            The Statute of Anne directly outlined the public copyright system that applied to the public in general;

(ii)         The Statute also recognised a copyright as originating in the author, rather than a Guild member; and

(iii)       The Statute placed a time limitation on the monopoly enjoyed by holders of a copyright.

The Statute further provided for the exclusive right of publishing of printed books which limitation period was set at 21 years; and 14 years for books not yet published from time of its first publication[29].

1.4     General Nature of Copyright

The general nature of copyright is clearly stated in section 6, Copyright Act[30] which grants exclusive right to control the doing in Nigeria of any of the acts stipulated therein subject to the exceptions specified in the Second Schedule to the Act. Section 6 of the Act provides that copyright in a work shall be the exclusive right to control the doing in Nigeria of any of the acts following act:

(a) In the case of a literary or musical work, to do and authorise the doing of any of the following acts-

(i)            reproduce the work in any material form;

(ii)          publish the work;

(iii)        perform the work in public;

(iv)        produce, reproduce, perform or public any translation of the work;

(v)          make any cinematograph film or a record in respect of the work;

(vi)        distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement;

(vii)      broadcast or communicate the work to the public by a loudspeaker or any other similar device;

(viii)    make any adaptation of the work;

(ix)        do, in relation to an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (i) to (vii) of this paragraph.

For an artistic work[31], copyright shall restrict the following acts purporting to;

(i)            reproduce the work in any material form;

(ii)          publish the work;

(iii)        include the work in any cinematograph film;

(iv)        make any adaptation of the work;

(v)          do, in relation to an adaptation of the work, any of the acts specified in relation to the work above.

Copyright shall also control the doing of any of the acts stipulated below in relation to a cinematograph film[32] regarding acts aimed to:

(i)            make a copy of the film;

(ii)          cause the film , insofar as it consists of visual images, to be seen in public and, insofar as it consists of sounds, to be heard in public;

(iii)        include the work in any cinematograph film;

(iv)        make any adaptation of the work;

(v)          do, in relation to an adaptation of the work, any of the acts specified in relation to the work above.

It must be noted that the doing of the acts provided for in section 6(1) of the Act shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognisably derived from the original.[33] The nature of copyright also covers other genres of copyright like sound recording;[34] broadcast;[35] and broadcasting of works incorporated in cinematograph film.[36] For the purpose of this work, this writer shall limit the work to music and film, with an exposition of the industries in Nigeria; but with copious reference to their operations in United Kingdom and United States of America since the Nigerian music and film industries seem to be behind in its developmental efforts compared to these other jurisdictions.

1.4.1  Nigerian Music Industry – An Overview

Music, like other genres of copyright, must fulfil the twin conditions of originality, and fixation for subsistence of copyright.[37] Original musical work has been defined in general as:

the production of the mind of a human author which is intended to be performed by the production of a combination of sounds to be appreciated by the ear for reasons other than linguistic content, the originality of the work resulting from the exercise of substantial independent skill, judgment and creative labour expended on its creation as opposed to its mere interpretation.[38]

In a pop music for instance, there are embodied three kinds of copyright viz:

-       Copyright in the words and music of the song (literary or dramatic work)[39];

-       Copyright in the actual sounds embodied in the record (aural effect of the voice singing);[40] and

-       Copyright in the musical arrangement (for example, orchestration, compilation of songs in Compact Discs, etc)[41].

It must be noted that originality of music is in fact a matter of degree; mere labour of transcription may not be sufficient and it is important to also note that the principal judge for music is “ear”, and not “eye”.

The Nigerian music industry has over the years experienced tremendous growth although there is no statistics available for this, the release of music CDs, music videos, and other promotions attest to this. Besides, Nigerian musicians now enjoy quality air play on satellite channels more than their counterparts in the other African countries. Although the value of the Nigerian music industry may not be easily determinable, perhaps we can say like it is suggested of the film industry[42], the music industry might be valued at a little less than that.

Like United Kingdom, the revenue of music is generated by three of the five core sectors of activity, in Nigeria. These include[43]:

-          Concerts, musical theatre and other performances;

-          The production and sale of sound recordings; and

-          The administration of copyright in compositions and recordings.

A performer has an unwaivable right to remuneration in respect of the public performance (including broadcasting) of his performances[44]. Performers’ rights are usually regulated through the medium of a contract with a record company under which the performer gives his consent to exploitation of fixations of his performances usually in return for a royalty or a percentage of income.

The work of a songwriter[45] or performer[46] becomes eligible for subsistence of copyright inasmuch as the conditions are fulfilled. However, music usually involves relation between the artist and other persons usually the recording or publishing company which finance the music for commercial exploitation. Hence, music businesses are usually brokered by an execution of music recording contract, usually involving the artist (performer) and the record company. The recording contract will generally seek to control exclusively the artist’s right in the music for a period of time. For a songwriter on the other hand, the music publishing agreement will apply. These two types of music agreements are quite similar only that the former regulates the relationship between an artist (performer, musician or vocalist) and the record company; usually for the purpose of exploiting the rights in the music at a commercial level. On the other hand, the music publishing agreement is usually between a composer, or lyricist (song writer), and the music publisher; also for exploitation of the rights in the music.

A recording contract can be an exclusive recording contract which will usually be for an initial term of one year with options, generally on the record company’s part; which can also extend the term by further one-year periods. The recording contract usually includes terms like the minimum requirement (or minimum commitment) whereby the songwriter agrees to deliver to the publisher a specified minimum number of compositions during each year of the term or alternatively that a minimum number of songs be released on record with the penalty that if he fails to do so, the agreement is automatically extended by a further period of about 6 or 12 months for the commitment to be fulfilled.[47] Other terms include: term and retention period; maximum period of extension which regulates year of release; royalties and other remunerations payable to the artist; permitted deductions and percentage applied which may include fees paid to arrangers, translators, and third party sub-publishers or licensees.

The recording contract also sets out how income is to be accounted to the songwriter, in what form and how regularly; and the option of reassignment upon notice which is exercisable by the artist in case the record company did not exercise its duty to release such album or music. Royalties may therefore be calculated in any of the two ways: without deductions which is called “at source” basis; or with deductions which means “receipts” basis[48].

On the other hand, a music publishing agreement could be any of the three types. An exclusive publishing agreement regulates the copyright in all music and lyrics written and composed by a songwriter for a period of time; and royalties and other remunerations payable to the songwriter. It must be noted that the operation of the exclusive music publishing agreement is quite the same as the recording agreement except for the parties involved. An artist may however decide to form his/her own record label or music publishing outfit thus obviating the contract which is required of in the exploitation of rights of an artist in the music[49]. Moreover, subject to terms of the individual contracts these agreements can be licensed or sub-licensed by the publisher to third parties either for a particular territory or in respect of particular rights[50], e.g. sheet music publishing rights, mechanical license for recording of the song on a record, or a synchronisation licence for a recording of the song with visual images.

Beside the above, a publishing agreement may be a song assignment. This agreement does not bind the songwriter exclusively to the music publisher, nor is there a minimum commitment. The songwriter assigns or licences the copyright in one or more named songs to the music publisher for the life of the copyright, or a shorter rights period in return for a royalty, but not always, an advance against royalties. The same or similar rights are granted to music publishing as in exclusive publishing agreement, but only limited to particular song covered by the song assignment[51].

The third type of publishing agreement is the administrative agreement. This governs the relationship between a song writer, or a small music publisher, and a company that seeks to administer the copyright in certain song. The administrative party assumes a “purely administrative role” of the copyright in that song[52].

The music therefore constitutes a new work called, sound recording, which a copyright will subsist in separate and distinct from the song[53], which belongs to the producer as the first owner; since s/he is the person by whom the arrangements necessary for the making of the sound recording are undertaken.

1.4.2  Nigerian Film Industry – An Overview

The Nigerian film industry, like the music industry, has experienced tremendous growth in a little more than a decade. Although, the Nigerian film industry had been in existence in the early 1960s, most especially reflected in the works of filmmakers like Ola Balogun, and Hubert Ogunde; but they were frustrated by the high cost of film production.[54] The emergence of television broadcast in the 1960s in Nigeria, coupled with the law limiting foreign television content led producers in Lagos to televising local popular theatre productions. Many of these were circulated on video, and a small scale informal video movie trade developed. Nigerian film is thus a video movie industry; which Nigerians call home videos. It is quite interesting that the modern Nigerian movie industry now tagged “Nollywood” reached a rallying point in 1992, with the release of Living in Bondage, a film about a businessman whose dealings with a money cult resulted in the death of his wife, as the industry's first blockbuster[55]. Since then, thousands of movies have been released; thus in 15 years, the industry has grown from nothing into a $500-million industry that employs some 300,000 people.[56] The industry has also grown to rank third in the world after Bollywood and Hollywood; as it releases 200 home videos a month.[57]

Like the sound recording, a film must also comply with the twin conditions of originality and fixation in a material form, for the copyright to vest in it.[58] There are three stages of film production viz:

-       Development;

-       Production; and

-       Distribution.

Each stage raises different copyright issues. During the development stage, different issues are taken which include acquisition of necessary rights in any literary or dramatic work on which the film is to be based (underlying work); engaging personnel required at the development stage (i.e. directors, writer of screenplay, etc); creation of works necessary to make the film (i.e. screenplay, production, and costume designs, etc); scouting possible filming location and negotiation for use of studio facilities; and preparation of a production budget and shooting schedule, financing plan and cash flow schedule[59].

The production stage is divided into three phases; the pre-production stage[60] involves storyboarding; which is the plot outline, casting, engaging the production crew, set building, hire or manufacture of costumes and properties and securing locations or studios. The production stage is the principal photography. During this phase to filming or “shooting”, prints are taken from each section of negative that has been shot to create the “rushes”[61]. Additional scenes may be filmed at this stage, by a second unit, often away from the principal location, and the soundtrack is recorded, usually towards the end. The third stage is the post production, which is usually at the studio; wherein the editing, dubbing and recording of any voice-overs are undertaken, music and sound effects are added, the scene may be re-shot if necessary. At this stage also, the first (rough cut) and second versions (director’s cut) of film assembled during the post production will be delivered by the director to the producer[62]. The latter will then make such changes as he may wish, or be allowed in the normal course of film production, to make prior to delivery of final version (or “final cut”) to one or more distributors for the commercial exploitation of the film. Note that the producer will charge a producing fee to the budget and will receive a share (typically 50%) of any eventual profits delivered following the recoupment from receipts of the cost of marketing and production of the film[63].

The last stage of film production is the distribution stage. This stage involves distribution agreement which is usually through a sales agent (formerly called a producer’s “rep” or representative)[64], who will charge expenses and a commission of typically between 10% and 25% of income realised from distribution agreements which he procures on producer’s behalf. The distributor’s income (known as “gross income”) will principally consist of box office receipts, fees paid by licensed broadcasters and revenue from the sale of copies of that film by video retailers[65].

 Also, there are main sources upon which a film is based with their rights which include: underlying works, original music works, sound recording, and artistic works which may require an authorisation from the owner of copyright before use. However, an incidental inclusion of artistic work in a film may not be an infringement of copyright in the work.[66]

In a film[67] therefore, several rights in the work are required for exploitation which include the soundtracks, ancillary rights, moral rights, performers’ property rights, and rental and lending rights. These rights could be assigned, sold, or licensed by the producer of the film for the purpose of commercial exploitation of the film.

1.4.3  An Overview of Nigerian Copyright Act

The Nigerian Copyright Act is the law governing copyright in Nigeria. The Act commenced on the 19^th day of December, 1988 by the then Federal Military Government. The Act was promulgated

to make provisions for the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters[68].

The Act is in four parts covering copyright, through eligibility, general nature of copyright, assignment and licenses, infringement of copyright, remedies, criminal liability and other ancillary provisions; neighbouring rights; administrative rights; and miscellaneous provisions. Besides, there are five schedules to the Copyright Act which involve the terms of copyright; exceptions from copyright control (i.e. the principle of fair use or dealing); special exceptions in respect of a sound recording of a musical work; compulsory licences for translation and reproduction of certain works; and transitional and savings provisions. These and other provisions of the Act shall be explored in the course of this research.

Chapter 2

2.0 Basic Rights of a Copyright Owner: Primary Infringement

2.1 Introduction

As earlier referred to in chapter 1[69], under the general nature of copyright as provided for in section 6 of the Act; subject to the exception specified in the Second Schedule to this Act, copyright in a work shall be the exclusive right to control the doing in Nigeria of any of the acts provided for in that section.[70] The right of an author of a copyright work in respect of that work is purely exclusive, that is, it is the right of the author, only, to use and control the use of the work to the exclusion of any other person. An act of use of the copyright work by any other person, other than the author, is an infringement of the right of that author. Copyright is a statutory property right, the rights of property granted being the exclusive right to do various “restricted acts” in relation to the copyright work.[71] Being a property right therefore, copyright can be licensed or assigned to a third party. Besides, copyright can also be exploited by the copyright owner or any of his/her licensee or assignee[72], heir or personal representative. This right may however be restricted by virtue of exceptions of fair use or dealing of the copyright work[73], or exclusive licence issued to third party.

Where the acts provided for in section 6 of the Copyright Act are made by any person other than the owner of the copyright work, this will amount to an infringement of the right of the owner in that copyright work. Infringement will therefore occur if one of the exclusive rights of the copyright owner has been invaded[74]. Once such act of infringement occurs, this will lead to an action for infringement by the owner of the copyright work against any person infringing his work.[75] The Copyright Act provides for infringement of copyright. By virtue of section 15 of the Act[76], copyright is infringed by any person who without the licence or authorisation of the owner of the copyright –

(a)          does, or causes any other person to do an act, the doing of which is controlled by copyright;

(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 this section of this Act;

(c)           exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;

(d)          distributes by way of trade, offers for sale, hire or otherwise,, or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a) of this subsection;

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

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

(g)          performs or causes to be performed, for the purposes of trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

These acts of infringement are, upon proof at the Court of law remediable on the Order of the Court. The common and necessary ingredients of these remedies are that: (a) they only arise when some other infringing act has occurred or is assumed to have occurred (“the primary infringement”) and (b) the liability of a defendant is dependent on establishing some degree of “guilty” knowledge on his part.[77]

These acts of infringement by the third party which is actionable in Court are also regarded as the exclusive rights of the copyright owner as provided for in the Act and other laws[78].

(i)                 Reproduction right[79];

(ii)              Distribution right[80];

(iii)            Rental and Lending Rights[81];

(iv)            Public Performance Right[82];

(v)               Broadcasting and Cable Rights[83]; and

(vi)            Adaptation Right[84].

An infringement of copyright will therefore occur where the a person, without the licence or authorisation of the copyright owner, does, or authorises another person to do, any of the acts restricted by copyright as provided for in the Act being such acts the doing of which are controlled by the owner of the copyright[85]. It is therefore important to note that infringement is not restricted to the person who does the unauthorised act, but also to the person who authorises the doing of the act which amounts to infringement. Once an act of infringement has been proven, the defendant is liable to infringement and innocence will not avail him of liability[86]. Besides, copyright is a right of property and is actionable without having to show damage. The following acts are strict liability which means that it is unnecessary for the copyright owner to demonstrate that the infringer knows that he infringed his copyright[87].

2.2     The Reproduction Right

The reproduction right is the exclusive right of the owner of copyright work to prevent copying or reproduction of a work. This right is considered the most fundamental and historically the oldest right of a copyright owner. This has also been categorised as follows[88]:

(i)            Exclusive right of copying

Here, the exclusive right of the copyright owner to reproduce the work in any material form is recognised. Under this category, two elements have been established, (a) a sufficient degree of objective similarity between the copyright work and the alleged infringement and (b) that this was the result of the plaintiff’s work having been copied by defendant, i.e. that there is causal connection between the two[89].

Although copyright does not protect the idea, but the expression of that idea. Therefore, where such idea has been worked out in any material form, being writing, recording, drawing, etc, depending on the genre of copyright work, it will be an infringement of the labour which went into the expression of the idea which is appropriated to the defendant.

Moreover, there may be some form of indirect copying of such work. This is evident in such instances where the defendant copies from another author who had earlier infringed the plaintiff or other person’s work. The proof of copying is a matter of fact, the standard being the ordinary civil standard, and in proving such connection, possibility of access raises a prima facie case or inference of copying for the defendant to answer.

(ii)         Substantial Part

This category is based on the degree to which the defendant’s work infringes the plaintiff’s right in the copyright work. Although the Nigerian Copyright Act did not make any provision for qualifying a work as an infringement of right of copyright in another work, the United Kingdom Copyright Act provides for the basic elements to look for in an infringement action. These basic elements have therefore been the subject matter of court proceedings which oftentimes have been called for determination in the United Kingdom Courts[90]. In Nigeria, it appears that although there is no provision on qualifying an infringement based on taking of a substantial part of the plaintiff’s work, the Federal High Court had made its judgment which will, of course, substantiate substantial part of a copyright work.

In the case of Masterpiece Investments Limited & Anor v. Worldwide Business Media Limited & Ors[91], the main issues were whether the article in which copyright was alleged had been violated was literary work and, if so, whether there had been an infringement of the work. The facts of the case[92] were that sometime in 1989, one of the plaintiffs’ clients commissioned them to do a write-up on the image of a company known as the Edison Group of Companies. The plaintiffs published the article in the Business Magazine known by the defendants. A few months later, however, another article on the image of the third defendant, Ugochukwu &Sons Ltd, appeared in the same magazine. The two articles contain a lot of similarities and it was quite obvious that the contents of the second write-up were copied mainly from the write-up on the image of the plaintiff client company. The plaintiff brought this action before the Federal High Court when all efforts to seek redress from the defendants proved abortive. The Court held that the write-up by the plaintiffs in the magazine was a literary work.

In considering the other matter for determination whether there had been an infringement of the literary work, Odunowo, J said:

The next issue to be determined is whether there was an infringement… Detailed analysis of both publications reveals the following facts. Apart from the fact that the subtitles in Exhibit E are written in small letters as opposed to capital letters used in Exhibit D, twenty-seven (27) of the words used in the defendant’s introduction are the exact words used by the plaintiffs in their own introduction containing thirty (30) words in all, which gives a result of 90% copying. And so far as the conclusion is concerned the wordings in both exhibits are exactly the same, the only minor difference being the use of pronouns. Consequently, the suggestion by Mr. Idigbe that the similarities in the words adopted are mere coincidence does not sound credible or convincing. Hence I am fully satisfied that the plaintiff’s work has been infringed[93] (Emphasis mine).

The Court in its judgment awarded general, special and exemplary damages totalling N600,000.00 (Six hundred thousand naira) in favour of the plaintiff.

This category of ‘substantial part’ is sub-divided into three parts viz: inexact copying; substantial test; and relevant factor[94]. The inexact copying of the original work of a copyright owner involves the following:

-       reworking of a whole of it (as where the whole of literary work has been paraphrased, an entire artistic work redrawn or a complete musical work altered);

-       exact use of part of the work (as where extracts from a literary work have been taken verbatim)[95]; and

-       a combination of the above.[96]

On the test for determining the substantive part copied, the Courts have formulated a number of questions. The application of this test differs, based on the genres of copyright, but the general application of this test affords much. Lord Bingham of Cornhill stated the substantial test in Designers Guild Limited case[97] thus:

The law of copyright rests on a very clear principle: that anyone who by his or her own skill and labour creates an original work of whatever character shall, for a limited period, enjoy an exclusive right to copy that work. No one else may for a season reap what the copyright owner has sown

Lord Bingham further analysed the substantial part test in section 16(3) as being a realistic recognition that no real injury is done to the copyright owner if no more than “an insignificant injury” is done to the copyright owner.

It is important to note at this juncture that when the Court comes to the determination of whether the defendant has taken a substantial part of the plaintiff’s work, infringement must have been established. And where the defendant’s work substantially resembles the claimant’s[98], we may as well conclude that a substantial part of the plaintiff’s work has been taken, thus giving the plaintiff a right of action for infringement.

Some of the questions to determine taking of substantial part include[99]: has the defendant made a substantial use of those features of the plaintiff’s work in which copyright subsists?[100] Has there been a substantial appropriation of the independent labour of the author?[101] Has there been an over borrowing of the skill, labour and judgment which went into the making of the plaintiff’s work?[102] According to the authors of “Copinger & Skone James on Copyright”[103],

It is therefore often important to ask what the features of the plaintiff’s work which give rise to its protection under the law of copyright. For example, with a literary work it may be the skill or effort in expressing thoughts in words, the collecting together and presentation of other material…; with a dramatic work, the working out of details of character and plot; with a musical work, the arrangement  For example, with a literary work it may be the skill or effort in expressing thoughts in words, the collecting together and presentation of other material…; with a dramatic work, the working out of details of character and plot; with a musical work, the arrangement and representation of subject matter, and so on. If substantial use has been made of these features, then infringement will have occurred.

Other considerations will focus on whether the two works are in competition. The principle of what is worth copying is worth protecting may also suffice[104].

(iii)   Direct or Indirect Copying

Moreover in respect of the reproduction right of a copyright owner, the work may be copied either directly or indirectly. This may take different forms whereby the infringer undertakes a verbatim copy of the original author’s work; or paraphrases the work so as not to appear as a copy of the plaintiff’s work without acknowledging such author. On the other hand, this might be indirect and with the development of internet services, and use of computer, this might of course take a transient form. Indirect copying may as well take the copying of a work from another person’s work who might have as well copied from the original author thus making the infringement a transitory form[105]. In determining whether a copying takes place indirectly therefore, it is necessary to prove an unbroken chain between the plaintiff’s and the defendant’s work. It must therefore be shown that the intermediate copy is itself either a direct or indirect copy of the copyright work.[106]

Further, the question of subconscious copying may also arise in an action for infringement. In Francis Day & Hunter v. Bron[107], the English Court of Appeal considered whether subconscious copying occurred in a song titled “Why” composed by one Mr. de Angelis and published by the defendants, and that the copying infringed copyright in the claimant’s song, “In a Spanish Town”. The Court held that subconscious copying is a possibility which, if it occurs, may amount to an infringement of copyright. But in order to establish liability on this ground, it must be shown that the composer of the offending work was in fact familiar with the work alleged to have been copied[108].

2.2.1  Musical Works

Infringement of copyright in music is not a question of note for note comparison, but of whether the substance of the original copyright work is taken or not[109]. As with a literary and dramatic work therefore, the copying of a musical work can take place not only by its reproduction in the form of sheet music but also by its reproduction in the form of recordings of the music, whether on conventional sound carriers like records, tapes, CDs and films, or in data files stored in computer memory[110]. To determine whether a musical work has been infringed, the issue arises whether there had been an appropriation of the skill, labour and taste of the original composer, and in determining the above, in common practice like the other genres of copyright, experts evidence are called to ascertain the significance of similarities between the works[111].

It is important to note, however, that unlike other genre of copyright, in determining any form of similarity however substantial it is between two or more songs, the ear will be the best judge in respect of this[112]. We must also note that by extension, copyright in sound recording, is also protected, which is the particular recording of sounds in the sound carrier. Sound recording means (a) a recording of sounds, from which the sounds may be reproduced, or (b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced[113]. Copyright in a sound recording is infringed by making a copy of these sounds, directly or indirectly, from that recording but not by making a new recording, of identical or similar sounds independently, e.g. by recording a new performance by musicians of the same music.

2.2.2  Films[114]

A film as a genre of copyright can also be infringed where a copy of, or a substantial part of a film is made either directly or indirectly, and whether transiently, or incidental to some other use[115]. Moreover, a soundtrack accompanying a film is today to be treated as a part of the film but this does not affect any copyright which subsists in a film soundtrack as a sound recording[116]. Again, the copyright in a film is infringed if the recorded moving images are directly or indirectly copied but not if the same or similar images are recorded independently[117]. The person whose right has been infringed in a film will be the principal director of the film[118]. It of course appears that the same reproduction in relation to sound recording will apply to films in such material forms as CDs, VHS, VCD and DVD. An extension of this could be flash drives, Memory Card and files stored in Hard Disk of personal computers. And for soundtrack accompanying a film, it is to be treated today as part of the film but this does not affect any copyright which subsists in a film soundtrack as a sound recording[119].

2.3     Distribution Right: Issue of Right to the Public

Another right protected by copyright in all works is the issue of copies of the work to the public. This right, although not stipulated as “distribution right” in the Nigerian Copyright Act, but the provisions of section 6 thereof, will suffice.

Besides, section 15 of the Copyright Act provides that:

copyright is infringed by any person who without the licence or authorisation of the owner of the copyright distributes by way of trade, offers for sale, hire or otherwise, or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a) of this section.

Where the person 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 section 15, it shall amount to an infringement of copyright[120]

For musical work or sound recording, and film, any act which include import or causing to import the copyright work, distribution to the public by way of commercial purpose which include sale or dealing with copies by way of rentals, lease, hire, loan or similar arrangement will amount to infringement of copyright in such work. This category of right has been a cause of serious concern in Nigeria whereby commercial use of copyright in music and movies, without authorisation or licence from the copyright owner, are rife.

2.4     The Rental and Lending Rights

These are a direct offshoot of the distribution right of a copyright owner. These rights basically flow from the earlier right of distribution of copyright works[121]. These rights apply to certain categories of works, namely: (a) literary, dramatic and musical works; (b) artistic works other than works of architecture in the form of building, or works of applied art, and (c) films and sound recording[122]. These rights obviously are of two concepts. Rental means making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage[123]. Lending on the other hand, means making a copy of the work based on the terms applicable to rental, usually through an establishment[124] which is accessible to the public. It is important to note that the work must be made available to the public and it will not include rental or loan of work or a copy by one private individual to another since such lending is not of a commercial nature.

It is to be noted further that there are some classes of acts which are excluded from both the rental and lending rights which are recognised in the UK CDPA 1988[125], but can also be inferred from the Nigerian Copyright Act 2004.

The main purpose of this right is to guarantee the owner of copyright in either of the works protected by copyright of remuneration for such use of his/her works. The right of the author to remuneration appears to be sui generis[126] and is not strictly a right of copyright, since his rights are limited to his claim for remuneration and he cannot, for example, prevent the further rental of copies if he is not paid.

2.5     Public Performance Right

This right of public performance is also embedded among rights which govern the restricted acts on copyright works. Literary, dramatic and musical work performance are not defined in the Nigerian Copyright Act, but are defined in the UK Act, to include delivery in the case of lectures, addresses, speeches and sermons[127] and in general, includes any mode of visual or acoustic presentation, including presentation by means of sound recording, film, broadcast or cable programme of the work[128]. For dramatic works, if incidents of the plot are visually presented, this will amount to an infringement, even though the same language is not used. For sound recording, films, broadcasts, and cable programmes, showing or playing of the work in public is infringement[129]. Note that even a performance may include broadcast (as in radio or television presentation), this will not amount to public performance of the works included in the broadcast since it is a separate restricted act[130].

What is important in this regard is the expression, “in public”. Section 15(1)(a) makes any dealing or causing another person to do an act, the doing of which is controlled by copyright to be an infringement. By virtue of paragraph (c) of that section, exhibition of works protected by copyright in pubic will bring about an infringement under S.15 (1)(a). The interpretation of this expression has been considered over time with regard to the number of people; monetary consideration for performance; place of performance; and whether such performance will injure the right of the copyright owner or his earnings[131].

Perhaps a cursory look at the exceptions to infringement of copyright as provided for in the Nigerian Act[132] will afford an explanation of the expression “in public”. The following instances may therefore afford an explanation of the expression “in public” and wherein an act of infringement would have been actionable:

(a)   if the use of a copyright work is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship, except where the work is incidentally included in the broadcast[133].

(b)   The inclusion in a film or a broadcast of an artistic work situated in a place where it can be viewed in public[134]. So, where an artwork is situated in the background in a film, this will not constitute infringement of copyright in that work.

(c)    The reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public[135].

(d)  The reading or citation in public by any person of any reasonable extract from a published literary work if accompanied by sufficient acknowledgement provided it is not for commercial purpose[136].

(e)   Broadcasting of a work, already lawfully made accessible to the public[137]; and

(f)     The communication to the public of a work, in a place where no admission fee is charged in respect of the communication, by any club whose aim is not profit making[138].

2.6     Broadcasting and Cable Rights

Broadcasting has been defined to mean sound or television broadcast by wireless telegraph or wire or both, or by satellite or cable programmes and includes re-broadcast, and broadcasting authority means any authority established under any law in Nigeria or elsewhere providing broadcasting services for public reception[139]

The copyright law also makes broadcasting of copyright work a restricted act within its scope. It makes broadcasting of copyright work an exclusive right of an owner of copyright in either of the works protected by copyright: literary or musical work[140], or cinematograph film[141]. It is important to note also that copyright is also embedded in broadcast as a work in itself[142]. By virtue of section 8 of the Copyright Act, copyright in a broadcast shall be exclusive right to control the doing in Nigeria of:

(a)          the recording and the re-broadcasting of the whole or a substantial part of a broadcast;

(b)          the communication to the public of the whole or a substantial part of a television broadcast, either in its original form or in any form recognisably derived from the original; and

(c)           the distribution to the public, for commercial purposes, of copies of the work by way of rental, lease, hire, loan or similar arrangement.

 Note further that copyright in a television broadcast shall include the right to control the taking of still photographs from the broadcast[143]; and the above provisions of the Copyright Act are subject to certain exceptions provided in the Second Schedule to the Act[144]. For cable rights, the Act[145] defines “cable programmes” as follows:  

visual images, sounds, or other information sent by means of a telecommunication otherwise than by wireless telegraph for reception –

(a)          at two or more places (whether for simultaneous reception or at different times) in response to request by different users; or

(b)          for presentation to members of the public”

From the above provision therefore, a cable programme will include programme services transmitted via cable network to two or more persons either for individual use or transmitted to members of the public. The person who makes this available appears to be the one who if proved guilty will be regarded as the infringer of the copyright of the owner.

2.7     Adaptation Right

Often times, the question arises whether a work which adapts its content or scope from a prior work covered by copyright is a copy of the original work. One of the acts restricted by the copyright in any literary, dramatic or musical work is the right to make any adaptation of the work[146]. Section 51 of the Copyright Act defines

adaptation as the modification of pre-existing work from one genre of work to another and consists in altering work within the same genre to make it suitable for different conditions of exploitation and may also involve altering the composition of the work.

Note further that an adaptation of a work could also be its translation[147]; and an author of such adaptation or translation has been held over time to be the author of his translation[148] inasmuch as he has not infringed on the copyright of the original author of such work. An author of an original work may also undertake to make an adaptation of the work or commission another person to do so since it is within his exclusive right to do so[149].

An adaptation can therefore come in different forms. It could be the making of an adaptation of a literary or dramatic work; or to produce or reproduce, publish, perform a translation or an adaptation of the work[150] which are the exclusive preserve of the copyright owner. From the above therefore, an adaptation could be the translation of a work from one language to another. It could also be an alteration of a literary work from one genre to another. This could be for example, the taking of incidents and plot from an author’s novel, to a substantial extent, and turning them to a dramatic work, which is likely to amount to an infringement by the making of an adaptation[151].

We can therefore say that if any other person other than the owner of such copyright in the original work undertakes to make any adaptation of the original work or make a translation in any language or form, such act shall be regarded as infringement of the author’s right in the copyright work.

2.8     Authorisation

It must be noted that the author[152] of a work is the only person who can exercise his right of authority for use of copyright work by any other person. Section 6 of the Copyright Act provides for the general nature of copyright which emphasizes the right of the author to the exclusive use of his work for any purpose provided in the Act. From the foregoing and the provisions of the Act, copyright is infringed where an act restricted by the copyright in a work is done without consent of the owner. Besides this, copyright is also infringed where another person without the consent of the owner authorises the doing of an act. An authorisation has been described as the grant or purported grant, which may be express or implied, of the right to do the act complained of, whether the intention is that the grantee should do the act on his own account, or only on account of the grantor[153]. The English Courts have also made use of other expressions in the alternative of the word, “authorise”. In Falcon v. Famous Players film Co.[154], Bankes L.J., following Monckton v. Pathe Freres Pathephone Ltd[155] used “authorise” as “sanction, approve or countenance” but it has been advised that the above must be treated with caution as the word “countenance” could be equivalent to the word “condone”[156].

It appears that by virtue of section 15(1), an authorisation by “any person who without the licence or authorisation of the owner of the copyright” to do any of the act stipulated in that section will be held by the Court as an infringement of the owner’s copyright in that work. An authorisation could therefore come in causing a copyright work to be performed for the purpose of trade or business[157]; or permitting a place of public entertainment or of business to be used for a performance in the public of the work[158]. It must be noted however, that where the person authorising the use of the work was not aware, and had no reasonable ground for suspecting the infringement, he might not be guilty of an infringement[159]. It is unlikely therefore that the photocopy of a work from a public or school library will be an authorisation[160], so also will be the use of such photocopy for educational purpose once it is proved that they are not for commercial exploitation of the right embedded in the copyright work in question.

From the above, we have been able to delineate the various rights of an owner of copyright work[161]: which are perpetual, inalienable and imprescriptible[162]. They are exclusive rights of the owner and once any of the rights are breached in the form of use or dealing in the copyright work[163], it shall be regarded as an act of infringement out of which a cause of action may arise as a civil action[164] or as a criminal action by the Nigerian Copyright Commission[165]. These will be treated in Chapter 3 which focuses on the dealing in infringing copies otherwise considered as piracy.

  

Chapter 3

3.0     Secondary Infringement of Copyright

3.1     Introduction

Another phase to infringement is the secondary infringement of copyright. This phase is usually the commercial exploitation of a copyright owner’s right in the work beside the primary infringement categories. Note that what the copyright law seeks to protect is the right of the owner, author or assignees of such work from unauthorised use of their works by third parties. There are of course different acts by which an infringement is made. Before a secondary infringement could occur, acts of primary infringement must occur. These acts must have established guilty knowledge on the part of the defendant, of such infringement amongst other things.

This chapter will focus on these categories of acts of infringement constituting the secondary infringement of copyright. It must be noted that although these acts are provided for in the Nigerian Copyright Act, their classification are not clear-cut unlike the United Kingdom Copyright, Designs and Patents Act, 1988 which specifies in clear terms the acts of secondary infringement.

3.2     Dealings in Infringing Copies

It is an infringement by virtue of section 15 of the Copyright Act that any person who without the licence or authorisation of the owner of copyright to do any of the acts specified in the section. These acts of infringement are, upon proof at the Court of law remediable on the Order of the Court. The common and necessary ingredient of these remedies is some actual or imputed knowledge of primary infringement of copyright[166].

From the above therefore, we can deduce that where a person does any of the above act with the intention to swindle the copyright owner of  his right with respect to any commercial exploitation of the right in such work without the latter’s authorisation or grant of licence, will constitute infringement of copyright in such work.

3.2.1  Infringing Copy

In bringing an action before the Court for an act of infringement, it is important for the plaintiff to prove that there was indeed an act of copying of his/her work. It appears therefore that an article, or object, is an infringing copy if its making constituted an infringement of the copyright in question. The Act even defines “copy” to mean:

a reproduction in written form, in the form of a recording or cinematograph film, or in any other material form, so however that an object shall not be taken to be a copy of an architectural work unless the object in a building or model[167]

3.2.2  Importation of Copyright Work

Where a person imports or causes to be imported into Nigeria any copy of work which, if it had been made in Nigeria, would be an infringing copy under the Act, the person will be guilty of an infringement of copyright of the owner[168]. From this, we can identify cases which this provision will most likely cover:

(1)          The article or work in question must have been made abroad by a third party who has no interest in the copyright and no licence of any kind;

(2)          The article or work made abroad by a person who owned the copyright in that territory (but not in Nigeria) or who had a licence in that territory (but not for Nigeria)

(3)          The article or work must have been made abroad by a person who owned the copyright in Nigeria but who had granted an exclusive licence for Nigeria.

Importation of a work or article protected by copyright in Nigeria will only amount to infringement if that work is in the course of business or brought into Nigeria for the purpose of commercial exploitation of the work. Moreover, infringement regarding importation of copyright works will most likely affect bringing of works into Nigeria through either of the known means of importing goods into Nigeria. One, it could be by bringing such article through any of the ports of entry into Nigeria, be it through the air, sea or border posts. Further, it appears that once the transition of the article in question has ended or broken in any of the ports in Nigeria, it will be considered as being imported into Nigeria thus, constituting infringement of the right of the copyright owner in such goods.

It seems however that where such work is only berthed in the sea port, or received in the airport or passing through Nigeria en route another territory, this might not lead to infringement of copyright since such work, on the general principle of international trade and investment law, will not necessarily constitute an importation of the article into Nigeria.

3.2.3  Exhibition of Work in Public

Where a person exhibits in public any article in respect of which copyright is infringed under section 15(1)(a), such act will constitute a secondary infringement of the copyright of the owner[169]. From this, we can of course deduce that the main element to be proven will be the exhibition of the work in public for the purpose of exploiting the work in order to deprive the copyright owner of compensation, or appropriate the skills and hard work for the infringer’s use.

3.2.4  Distribution of Work

It will also amount to dealing in an infringing copy as a secondary infringement where the infringer distributes by way of trade, offers for sale, hire or otherwise, or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under section 15(1)(a)[170]. This will be a breach of the distribution right of an owner of copyright as earlier dealt with in chapter 2.

It appears therefore that where an infringer goes about using, without the authorisation of the copyright owner, of the work through sales, hire or otherwise, of any infringing copy, then an act of secondary infringement would have occurred being dealings in the infringing copy.

3.2.5  Knowledge

As has been discussed earlier in this work, where it is proven that the defendant has knowledge of his act, of being an infringement of the plaintiff’s right in the work, or causing the latter to lose finances through unauthorised exploitation of his work, this will lead to an infringement of his copyright. It is therefore necessary that adequate knowledge is proved showing that the defendant knew or had reason to believe he was dealing with an article which was an infringing copy of the work. The rationale for this has brought about classification of knowledge by text writers and jurists. There are, therefore, two states of mind: actual knowledge, or constructive knowledge[171].

Proof of actual knowledge will depend on facts on the evidence of the defendant’s actions and what he knew and did. The burden of proof is usually on the plaintiff, and has been described as a heavy one[172]. Where a person deliberately refrains from inquiry and shuts his eyes to that which is obvious to him (and which he knows), he cannot be heard to say that he lacks the requisite knowledge[173].

On the other hand, constructive knowledge will occur where the defendant (i.e., the infringer of the copyright of an owner in his/her work) has reason to believe that he is in fact infringing the copyright of another person in a particular article or work. In determining this, the reasonable man’s test will be applicable by assuming a reasonable man in the position of the defendant and with his knowledge and experience[174]. It appears also that it will be no defence for a defendant to say that although he knew the facts he nevertheless believed that as a matter of law no infringement would be committed, even if this was on the basis of legal advice[175].

For the purpose of an action therefore, where a person is not aware that he is dealing in infringing goods, he must therefore be given notice of the facts, commonly by letter, before a prima facie case can be made that further dealings by him will amount to infringement[176].

Other elements will also be considered in proofing knowledge of the defendant that he is infringing the copyright of an owner in a particular work. Such elements shall include knowledge of an agent, who is acting on the authority of the principal[177], publication of details of the plaintiff’s work[178] and filing of same in the data bank of the NCC[179], will amongst others constitute an effective evidence to show knowledge of the defendant in an infringement action.

3.2.6  Internet (File-sharing and peer to peer dealing in copyright works)

The emergence of the World Wide Web (www) has brought about tremendous development in the modern world. But the World Wide Web is only a subset of the internet[180]. The internet which must have started in the 1980s only had few people, constituted mostly of education researchers, scientists and people in the military, hooked to it[181]. The internet garnered speed in its development with the invention of the Mosaic browser by Marc Andressen, which was funded by the United States’ National Science Foundation[182]. Today, it is history and the achievements which computers and the internet have brought to the modern day world are enormous respecting career development, business, research, science and technology, information dissemination and everyday living.

Almost anybody could now connect to the internet. All you need is get a PC, laptop or even a palm top, get connected to a LAN (Local Area Network), or the wireless device, and you will be enthralled at the buckets of information  that are readily available on the internet. Besides, there are platforms for sharing information among persons which could be pictures, articles, and other copyright works. This may necessarily not have to be by connection to the internet as this is often achieved by “ad-hoc” connection of two Computers either by use of LAN cable or wireless, while lots of information is shared between them. This is called “file-sharing”[183].

The use of computer and the internet has made the issue of infringement of copyright, a more interesting one. Typically, an individual user is connected via an Internet Service Provider (ISP)[184]; or if he works at a company, university or other organisation, may be connected to the LAN but the essential principle is the same[185]. The way the internet works affords so much in mind. Computers which store data for use on the internet are known as “servers”[186]. In accessing an information or work on the internet therefore, the user needs only to type in the electronic address of the remote server, being information from another person’s webpage, called the “URL” or “website”. The request is first sent to the server of the local ISP, which in its turn contacts the remote server and requests it to transmit the data in question. Thus the data is transmitted from the remote server to the ISP’s server, perhaps through intermediaries, and is then sent from the ISP server to the client.

Peer-to-peer file sharing, on the other hand, is the process of exchanging files—usually music files—with other people over the Internet. In this regard, files which include music, movies, and other works which may be protected by copyright are shared over the internet. The peer-to-peer technology allows individual users to connect to each other directly, without need for a central point of management[187]. This type of file swapping can violate copyright laws if the people sharing files are making unauthorised copies of protected works without permission and without paying. In the late 1990s and early 2000s, file-sharing services became increasingly popular[188]. The entertainment and recording industries both in Nigeria, and abroad had also attempted to curb this, which is considered as internet piracy. The height of this came in 2001 when Napster, a music file-sharing service, was heavily sanctioned in an action for piracy, which led to the eventual fold-up of the company[189].

But the fight against internet piracy has not ended with the death of Napster, it has only brought about more incidence of P2P File-sharing with the development of Generation of the P2P[190]. There are now more file-sharing websites which allows for free or paid download, of digitized information which could be data, photos, articles, designs, music and videos. Some of these are even softwares which allow easy download which include, Limewire, FlashGet, www.pjbutta.com, www.kaZaa.com amongst others. In an ongoing battle to curb Internet piracy, the music and entertainment industries also pursued the commercial services that make file sharing possible. The file-sharing services often claimed that they did not know about and could not monitor the activities of their users, and thus should not be held responsible for the actions of those users[191]

From the above therefore, it is obvious that the sole dealing with an internet file-sharing site may not necessarily afford the best strategy to fighting internet piracy as the Napster scenario had only led to the emergence of other service providers. Later in the work, we shall consider different ways at countering acts of piracy and suggest possible actions to correct this.

3.3     Providing the Means of Making Infringing Copies

Where an infringer makes or has in his possession; plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work, an act of secondary infringement would have occurred[192]. This of course will amount to the best examples of acts of pirates on musical and cinematograph works which have been cause of concern to musicians, song writers, stakeholders and the Nigerian Copyright Commission[193].

The issue of possession of cassette reproduction machine may not necessarily raise a prima facie evidence of secondary infringement in an action for infringement. This was upheld by Belgore, J in the case of Island Records Ltd & Ors v. Pandulum Technical Sales &Services Ltd & Anor[194]. His Lordship held thus:

In an action for infringement of sound copyright, the fact that a plaintiff gives evidence of the presence of machines for reproduction of cassette tapes of sound recording in the defendant’s office is not conclusive proof that the machine was reproducing any of the plaintiff’s tapes or records. There must be more direct evidence…[195]

3.4     Permitting or Enabling Public Performance of Work

Where a person permits a place of public entertainment or of business to be used for a performance of the work, where the performance constitutes an infringement of the copyright of the work, this will also amount to secondary infringement of the copyright of the owner in his/her work. The issue of what will constitute the expression, “in public” has been dealt with in Chapter 2, above[196]. This is however subject to the circumstances where the person permitting the place to be used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright[197]. This however does not absolve the person of any liability for infringement of the copyright in the owner’s work since infringement is a strict liability which the plaintiff need not prove any damage whatsoever[198]. The infringer, although lacking knowledge of infringement, is liable to account for the profits acquired during the act of infringement[199].

Permitting the performance of a copyright work in public which relates to the dealing in an infringing copy in this regard  is separate from exercising the right of the author to such use with respect to his/her primary right[200]. Moreover, the secondary infringement of copyright respecting this category will also apply to where a person performs or causes to be performed, for the purposes of trade or business or supporting facility to a trade or business, any work in which copyright subsists[201].

Secondary infringement may not arise where such uses or acts are reproduction of work(s) for compilation in the archives stored in the National Archives established under the National Archives Act; or the public records of a State, being records for the storage or custody of which provision is made by law, neither will copyright in such work(s) be infringed by the making or the supplying to any person of any reproduction of the work in pursuance of that Act or law[202].

3.5     Ways of Countering Infringement (or Piracy) of Copyright

3.5.1  Identified Methods of Curbing Piracy in Nigeria

Many ways have been offered at countering infringement of copyright. These include, inter alia, the provisions of the Act.

Enforcement of Right of Copyright Owner through Civil Proceedings

Section 16(1) provides:

subject to this Act, infringement of copyright shall be actionable at the suit of the owner, assignee or an exclusive licensee of the copyright, 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 an infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other propriety rights.

In such an action for infringement, an infringement is proved or admitted, and the court in which the action is brought, shall have regard (apart from all other material considerations) to the flagrancy of the infringement; and any benefit shown to have accrued to the defendant by reason of the infringement[203].

The above therefore provides for the enforcement of the right of the copyright owner through civil proceedings. This avenue has been exploited many times by a copyright owner and reported cases[204] afford so much information in this regard. The provisions which guarantee the commencement of a civil action by the copyright owner against any person who has infringed the former’s right in the work or dealt with an infringing work, are quite laudable but also fret with some conditions which must be fulfilled. One of such was considered in Island Records Ltd & Ors v. Pandum Technical Sales & Services Ltd & Anor[205]. In that case which is on the infringement of copyright in sound recording, the Court held that copyright was not conferred on the plaintiff by section 2 therefore, the plaintiffs (that is, the six companies registered outside Nigeria) had no locus standi. For infringement of copyright to take place, there must be a copy amounting to a theft of the work created by an author or of one who also records or owns the record at the time of recording.

It appears from the above that the requirement of eligibility for copyright protection of a person’s work, as provided for in sections 1 – 5 of the Copyright Act must be fulfilled before s/he can enforce his right in an action for infringement. Note also that in a case of unawareness of the defendant of the infringement of the plaintiff’s copyright in a work, an account for profits, not damages, may be awarded against the defendant[206]. The right of action for infringement exists whether the invasion was intentional, malicious or innocent or the right to property is real, or personal, corporeal or incorporeal[207].

Enforcement of Right of Action through Criminal Proceedings

Section 20(1) of the Copyright Act provides:

Any person who –

(a)          makes or causes to be made for sale, hire, or for the purposes of trade or business any infringing copy of a work in which copyright subsists; or

(b)          imports or causes to be imported into Nigeria a copy of any work which if it had been made in Nigeria would be an infringing copy; or

(c)          makes, causes to be made, or  has in his possession, any plate, master tape, machine, equipment or contrivance for the purposes of making any infringing copy of any such work,

is, unless he proves to the satisfaction of the court that he did not know and had no reason to believe that any such copy was an infringing copy of any such work, or that such plate, master tape, machine, equipment or contrivance was not for the purpose of making infringing copies of any such work, guilty of an offence under this Act and liable for conviction to a fine of an amount not exceeding N1,000 for every copy dealt with in contravention of this section or to a term of imprisonment not exceeding five years, or to both such fine and imprisonment.

Further, any person who –

(a)          sells or lets for hire or for the purposes of trade or business, exposes or offers for sale or hires any infringing copy of any work in which copyright subsists, or

(b)          distributes for the purposes of trade or business any infringing copy of any such work; or

(c)          has in his possession, other than for his private or domestic use, any infringing copy of any such work; or

(d)         has in his possession, sells, lets for hire or distribution for the purposes of trade or business, or exposes or offers for sale or hire any copy of a work which; if it had been made in Nigeria would be an infringing copy.

Subject to the person proving to the satisfaction of the Court of his unawareness and reasonable belief that any such copy was an infringing copy, but guilty of an offence under the Act, and liable on conviction to a fine of N100 for every copy dealt with, or a term of imprisonment not exceeding two years or, in the case of individual, to both such fine and imprisonment[208].

Where a person, without the authority of the copyright owner, distributes, in public for commercial purposes, copyright work by virtue of sections 6(1)(a), 6(1)(c)(iv), 7(1)(b) or 8(1)(c) of the Act, by way of rental, lease, hire, loan or similar arrangement, s/he is guilty of an offence under the Act, and upon conviction liable to a fine of N100 for every copy dealt with or for a term of six months imprisonment, or to both[209]. Besides this, the Court, in hearing this action, may, whether the alleged offender is convicted or not, order all copies of the works, plates, master tapes, machines, equipment and contrivances in the possession of the alleged offender, which appear to be infringing copies of the works, be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the Court may think fit[210]. Moreover, the Court may, where the infringing article has been seized by a police officer and on the application of the Attorney General of the Federation[211] or owner of the copyright, order that the articles be destroyed or delivered up to the owner of the copyright, or otherwise subject to the discretion of the Court[212].

Apart from the above, the Act empowers the Nigerian Copyright Commission, subject to the Minister’s consent, to prescribe design, label, mark, impression or any other anti-piracy device for use on, in or in connection with any work in which copyright subsists[213]. The contravention of this is punishable where it is proven that any person who sells, rents, hires; or offers for sale, rent or hire, any work in contravention of the prescription under section 20(1) commits an offence and liable on conviction to a fine not exceeding N100,000 or imprisonment for a term not exceeding 12 years or both[214]. Moreover, where a person, without the permission of the NCC imports into Nigeria, or has in his possession any anti-piracy device prescribed under section 20 or any machine, instrument or other contrivance intended for use in the production of the anti-piracy device, is guilty of an offence and liable on conviction to a fine not exceeding N500,000 or imprisonment for a term not exceeding five years, or to both such fine and imprisonment[215].

Other ways of countering acts of piracy include: an order of search and seizure, and conversion rights.[216]

3.5.2  Remedies

The Copyright Act provides the copyright owner some measures to mitigate the intensity of the economic effect, amongst other things, of infringement. The remedies available to an owner of copyright in a work which has been infringed may be summarised in the following terms.

3.5.2.1 Conversion Rights

This remedy is provided for in section 18 of the Act which provides that all infringing copies or substantial parts thereof, and all plates, master tapes, machines, equipments, etc used for the reproduction of the infringing copies shall be deemed the property of the owner, assignee, or the exclusive licensee by way  of right of conversion  through legal proceedings.

Besides this, in an infringement proceeding, a copyright owner may also have either of the following remedies or reliefs subject to the discretion of the Court as provided for in the Act:

(a)   award of damages[217];

(b)   injunction[218]

3.5.2.2 Damages

Damages have often times been a veritable instrument at affording palliative measures to the injury suffered by a person in a Court proceedings. This had developed over a long period of time as a common law remedy but it has also been applied even in the Equity Courts by virtue of the Judicature Act 1875. Damages are classified into different parts and these include: general and special damages; exemplary (or punitive) damages and nominal damages.

(a)          General and Special Damages

These are compensatory damages. General damages are losses which flow naturally from the defendant’s conduct and its quantum need not be pleaded or proved as it is generally presumed by law therefore, evidence which will assist the Court must be given if the plaintiff is to obtain substantial damages under this head of claim[219].

Special damages on the other hand are damages which the law does not presume but must be specifically pleaded and proved[220].

(b)         Exemplary or Punitive Damages

These forms of damages are not really intended at compensating the plaintiff in an action, but to punish the defendant and deter him from similar behaviour in the future. This is however subject to the discretion of the Court particularly with respect to the facts in issue and adduced judicial authorities.

Perhaps a cursory look at the provisions of section 16(4), as Babafemi suggested in his book[221], affords much as the section provides that the Court shall have regard (apart from all other considerations) to “the flagrancy of the infringement; and any benefit shown to have accrued to the defendant by reason of the infringement”. The Court shall also have power to award such additional damages by virtue of section 16(4) as the Court may consider appropriate in the circumstances.

(c)           Nominal Damages

Where the plaintiff establishes violation of his right by the acts of the defendant but could not prove or show any actual damages as a result of such violation, nominal damages will be awarded[222]. Nominal damages may also be awarded where injury has been proved but there is no evidence for the assessment of the compensation to be awarded in such instance.

Damages had been awarded over time in the Nigerian Courts particularly in copyright actions. One of these was the case of Masterpicece Investments Ltd & Anor v. Worldwide Business Media Ltd & Ors[223]. In that case, the Court having found that the defendants infringed the literary work of the plaintiff, assessed the damages to be awarded to the plaintiff, and therefore awarded a sum of N250,000 as general damages for the infringement of the plaintiff’s copyright and for depriving him of the claim of authorship of his model work.

3.5.2.3 Injunction

There are different types of injunction which include: Interim Injunction, Perpetual Injunction, Quia Meruit injunction, Mareva Injunction, Antom Piller Injunction, etc. For the purpose of remedying copyright infringement, Mareva, and Antom Piller Injunction are very useful.

(a)          Mareva Injunction

Mareva Injunction is an injunction granted by the Court of Law (Federal High Court in Nigeria) with jurisdiction, to detain the valuable property of the infringer within its jurisdiction to ensure that it is available to satisfy the award of damages when eventually made. The elements of Mareva Injunction were set up in the English case of CBS UK v. Lambert[224]. These elements are as follows:

(i)            there should be clear evidence that the defendant is likely, unless he is restrained by an order, to dispose of the infringing copy, in order to deprive the claimant of the fruit of any judgment he may obtain;

(ii)         no order should be made for delivery of or in respect of the defendant’s wearing apparel, bedding, furnishing, tools of his trade, farm implements, livestock or any machine or other goods such as materials or stock-in-trade which it is likely he uses for the purpose of a lawful business;

(iii)       a claimant’s liability to identify what he wants delivered of and why is an indication that no order should be made because the order must qualify what chattels or classes of chattels are to be delivered of;

(iv)       the order must not authorise the claimant to enter on the defendant’s premises or to seize the defendant’s property save by the defendant’s permission just as in Antom Piller Order; and

(v)          no order should be made of delivery up to anyone other than the claimant’s solicitor or the receiver appointed by the Court.

(b)         Antom Piller Order

This is a mandatory injunction compelling the infringer to allow ingress into his premises for the purpose of the plaintiff securing concrete evidence of his infringement in order to aid the Court at arriving at a just award of damages[225]. The development of Antom Piller Order started with the English Court in recent times although the Courts had been using the rudiments of it for many years.  Such orders are usually made by the Courts upon plaintiff’s application, to compel a defendant to permit the plaintiff to inspect document or other things essential to the plaintiff’s case[226]. The justification for this is the grave danger of vital evidence being destroyed if the defendant is forewarned[227].

The Antom Piller Order was first reported in the case of E.M.I. v. Pandit (1975) 1 W.L.R. 302 which was decided in December, 1974. The name “Antom Piller” was however not attached to this species of order until the decision of the English Court of Appeal in the case of Antom Piller K.G. v. Manufacturing Process Ltd[228] towards the end of 1975[229].

The facts of the case are that the defendant, an English Company, and its two directors were the United Kingdom agents of the Plaintiff. The plaintiff, a German company, was specialised in the manufacturing of frequency converters for computers. The plaintiff claimed that the defendants were secretly giving confidential information about the plaintiff’s products. In order to prevent the disposal of document in possession of the defendants relating to the plaintiff’s machines and designs before the discovery of the action, the plaintiff applied for the following ex parte:

(a)          An order of interim injunction to restrain the defendant from infringing the copyright and disclosing confidential information;

(b)          An order for permission to enter and inspect all such documents and to remove them to the plaintiff’s solicitor’s custody.

Brightman, J., presiding at the lower Court, granted the interim injunction but refused to grant an order of inspection or removal of documents on the ground that it might become an instrument of oppression. On appeal by the plaintiff, the Court of Appeal held in a lead judgment delivered by Lord Denning M.R., that the Court had inherent jurisdiction to grant the order of inspection, which became known as the Antom Piller Order, and accordingly granted the order.

The operation of the Antom Piller Order had since become widened over years by the Court, to include ancillary order whose purpose is to compel the defendant, in copyright infringement cases, to disclose vital information relating to the illegal trade[230]. The Order had therefore become widely acceptable and used in the English Courts[231] and also extended to the Nigerian Courts[232].

In granting an Antom Piller Order, the Court, in order to ensure that a defendant is not treated unfairly, has stipulated safeguards. Some of these include:

(a)          The inspection must do no harm to the defendant[233];

(b)          The plaintiff must be capable of paying the amount he is undertaking to give as damages[234];

(c)           An undertaking by the plaintiff that the order be served on the defendant with all relevant documents;

(d)         An undertaking by the plaintiff that the solicitor who served the order will explain its terms to the defendant served, and will advise him to seek immediate advice;

(e)          Express liberty to each defendant to apply to the Court on short notice to vary or discourage the Order;

(f)            A cross undertaking in damages; and

(g)          An undertaking by the plaintiff to issue a writ, if the ex parte Application for the Antom Piller Order is made before there has been time to issue the writ[235].

3.5.2.4 Other Remedies         

The Court may order other remedies as it deems fit to award in the circumstances. These remedies include account for profit, delivery up and search and seizure.

We shall consider in the following chapter a veritable way in the opinion of this writer of countering acts of piracy in Nigerian copyright industry with particular emphasis on licensing vis-à-vis collective licensing of copyright.

Chapter 4

4.0     Licensing

4.1     Concept of Licensing

As earlier discussed, copyright confers an exclusive right on the copyright owner thus excluding any other person from dealing in the copyright work without the authorisation of the copyright owner. Therefore, where the copyright owner authorises another person to use or deal in the copyright work, he shall not be liable in an action for infringement of the copyright. Such authorisation permitting the use of the copyright is called “license”.  By section 11 (1) of the Act[236], copyright shall be transmissible by assignment, testamentary disposition or by operation of law as movable property.

The term, “license” was defined in the case of Thomas v. Sorrell[237], wherein Vaughan, J. held that:

A dispensation or license properly passeth no interest nor alters or transfers property in anything, but only makes an action lawful which without it had been unlawful.

License passes no proprietary interest but merely makes lawful that which would otherwise be unlawful, it is a permission which carries with it immunity from proceedings. Therefore, a licensee cannot sue in his own name to restrain infringement since he has no right that has been infringed, nor to transmit, unless the license itself so provides either expressly or by implication. There is no requirement that a license be in writing or comply with other formalities. License can therefore be oral or written; or be implied into a contract, whether on the grounds of business efficacy or trade practice and custom. It may therefore be gratuitous or inferred from conduct only.  These are subject to the provisions of the Copyright Act in some circumstances.

A license could be disposed to the world at large or to a specified section of the community[238]. Although a license is personal to the grantee, he is not obliged to do everything personally to exploit the license and may employ an agent or a sub-contractor to do any or all of the acts falling within the terms (express or implied) of the license inasmuch as the licensee is not in effect sub-licensing[239]. A licence granted by a copyright owner is therefore binding on every successor-in-title to his interest in the copyright, except purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser.

4.1.1  Licensing v. Assignment

Many times, we encounter problems in determining whether a particular agreement amounts to an assignment of copyright, in whole or part, or merely a license. Assignment and licence are differentiated as follows:

(i)            The rights of a licensee, exclusive or non-exclusive, are not proprietary. On the other hand, the rights of an assignor are proprietary thus allowing him to exercise any right of alienation or otherwise on the copyright work[240].

(ii)         A licence could be either written or oral, except an exclusive licence which shall have effect unless it is in writing[241]. On the other hand, an assignment of copyright in a work shall have no effect except in writing[242].

(iii)       The right of a licensee (an exclusive licensee) to assign is subject to the terms of the license; while the assignor has an assignable right free of any encumbrances[243].

(iv)       A licensee does not have any right to sue since he has no right in the licensed copyright work in question although an exclusive licensee might sue only if he joins the licensor as co-plaintiff or as co-defendant in an infringement action[244]. On the other hand, an assignee is treated in law as a successor-in-title, so he can sue in his own name to claim his right in the copyright work[245].

(v)          A licensee must act within the scope of the license except an exclusive licensee which has the authorised rights to the exclusion of any other person including the copyright owner. An assignor on the other hand has an unlimited right to deal in the copyright work as he deems fit.

(vi)       A statutory exclusive licensee cannot himself grant an exclusive sub-licence which will enable the sub-licensee to sue in his own name[246].

4.2       Forms of Licence

          Keep in mind that by virtue of the Copyright Act[247], a licence is a lawfully granted licence[248] permitting the doing of an act controlled by the Act. There are different forms of licenses[249] which are often the subject of a Court proceeding or business transaction. By the provisions of the Act, there are three classes of licence which include: exclusive licence, non-exclusive licence, and compulsory licence. These forms of license extend to the areas of copyright in issue – music and film – and of course, collective licensing which will be treated anon. These classes of licence are described below with respect to dealing in the rights of a copyright owner in the work.

4.2.1  Exclusive Licence

This means a licence signed by or on behalf of a copyright owner authorising the licensee 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[250]. An exclusive licensee therefore deals in the copyright work to the exclusion of others including the copyright owner. Note that the word ‘exclusive’ does not grant a proprietary interest to the licensee, but contractual remedies against the licensor in the event of breach of exclusive provision of the licence agreement. 

From the statute, an exclusive licence must be in writing, and granted by the owner of copyright. An exclusive licence cannot be granted by any other person other than the copyright owner as such grant of licence is invalid. It therefore implies that an exclusive licensee cannot grant an exclusive licence also but this does not affect his right to grant any other form of licence since as a licensee, he is allowed to use the copyright work as if it is originally his work. It seems however that where a grant of exclusive licence is permitted by the terms of the head licence, it will create a valid contractual licence, giving the sub-licensee protection in an infringement action brought by the copyright owner and contractual rights against his own licensor[251].

Moreover, the exclusive licensee is allowed by law, to use the copyright work exclusively. This in effect allows him to deal in the copyright work to the exclusion of any other person and also limiting the copyright owner to grant any other licence in respect of the work or any terms relating thereto. Note that a licence may be limited so as to apply to only some of the acts within the copyright work which the copyright owner has the exclusive right to control, or to a part only of the copyright, or to a specified country or other geographical area[252]. In effect, exclusive licence will not be given to more than one licensee in respect of an exclusive right of copyright owner in a work or relating to a country as this will negative the provisions of the Act thus, making the latter licence invalid at law.

Note further that an exclusive licensee can exercise his right to institute an action for infringement against any person infringing the copyright in the work, the subject of the licence. This is however subject to the licensee bringing an application for joinder of the copyright owner (or his authorised agent), the “licensor”, as co-plaintiff, and where he refuses, as co-defendant, before the Court in an infringement action[253]. An exclusive licensee has the same right of action as the licensor in respect of the work, and is therefore entitled to same remedies for conversion and for infringement as the copyright owner, “licensor”[254]. This will be treated as if the licence is an infringement and owner of copyright is not entitled to these remedies[255]. Note that the right of an exclusive licensee to sue for infringement is only limited to third party infringers and not assignees or licensees claiming under the copyright owner.

An exclusive licensee will also have the right of action against the copyright owner or licensor in respect of breach of terms of the licence, and entitled to remedies against the copyright owner or his representative.

4.2.2  Non-Exclusive Licence

A non-exclusive licence, unlike the exclusive licence, can either be oral, written, or inferred from the contract[256]. This also confirms rights in the licensee to deal in the copyright work but this is not exclusive. The copyright owner or any of his assigns or representatives can grant other licence(s) on the copyright work. A non-exclusive licence does not pass proprietary interest and does not raise any right of action against any infringer as he may not sue a third party for infringement. But the non-exclusive licensee may exercise his right to sue the copyright owner or licensor for breach of terms of the licence. All that accrues to him of right therefore is the authorisation of the copyright owner in the form of grant to him, to the use of the copyright work depending on the right in view, or the geographical area.

4.2.3  Compulsory Licence

By virtue of S. 37 (1) of the Act, the Nigerian Copyright Commission (NCC) shall have the power to grant compulsory licences in accordance with the provisions of the Act. In exercising the above power, the NCC shall constitute a Copyright Licensing Panel[257] for the purpose of granting the compulsory licence. A compulsory licence is usually granted at the application of a person to the NCC.

The Fourth Schedule to the Act sets out conditions for the grant of the compulsory licence. Thus, any qualified person[258] may apply to the NCC for a licence to produce and publish a translation of a literary or dramatic work which has been published in printed or analogous form of reproduction for the purpose of teaching, scholarship or research[259]. Before a compulsory licence is granted, there are basic conditions which must be present[260].

Besides this, where an application is granted, the applicant shall pay to the owner of the copyright in the work royalties in respect of copies of the translation in the work sold to the public, calculated at such rate as the Commission may, in the circumstances of each case,  determine in the prescribed manner, except that the royalties shall be consistent with the standards normally operating in the case of licences freely negotiated between persons in Nigeria and owners of translation rights in the country of the owner of the right of translation[261]. However, the licence shall not extend to the export of copies of the translation of the work outside Nigeria and every copy of such translation shall contain a notice in the language of such translation that the copy is available for distribution only in Nigeria[262].

4.3     Licensing As A Tool for Curbing Piracy in Nigerian Copyright Industry

The effect of piracy and counterfeiting to copyright is not only on Nigeria, but indeed global. This had affected the gross earnings of the copyright owner as their works are used with impunity without authorisation of the owner of the copyright work. The effect of this is quite obvious around us. The hawking of pirated music and movies on Compact Discs on the streets and highways are common phenomenon in Nigeria. It is interesting to note that piracy does not only affect the copyright owners, but the nation as a whole in its earnings as the development of a nation is usually calculated from the gross earnings of its citizens.

Recently, the United States of America delisted Nigeria from Piracy Blacklist[263]. The NCC has not reneged on its mandate to fight piracy as well with its latest regulation for registration of Optical Disc Manufacturing Plants in Nigeria which had been signed into law by the honourable Minister of Justice[264]. Under the policy, the existing and prospecting Optical Disc factories will now have to register with the NCC to procure licence, and to use the Source Identification Code (SID) (mastering LBR code and mould code) on all disc produced and sold in Nigeria, and also to empower the government authorities to inspect plants and take deterrent action against any plants found to be operating outside the law[265]. Besides this, the NCC had earlier made a regulation to counter acts of pirates launched in its campaign in 2005 which is called “Strategic Action Against Piracy “STRAP”[266]. The Nigerian Customs Services has also been mandated to counter cross-border piracy, while the Performing Musician Association of Nigeria “PMAN” has been in the vanguard against music piracy in Nigeria.

The foregoing measures at countering piracy are quite laudable but they have achieved only a minute effect at stemming the tide of piracy in Nigeria. There seems to be no statistics to show the economic loss of the Nigerian copyright industry to piracy but in a recent report[267], it is estimated that the record industry reports 98% piracy rates (for international repertoire), while the Business Software Alliance reports an 84% piracy rate and losses due to piracy of between US$47million and US$54 million while broadcast piracy of copyright work is also on the increase claimed ostensibly to boost the career of musical artists[268]. We can say at this juncture that the provisions of the Act, particularly sections 15 and 16, have only made copyright enforcement and fight against piracy directed at an individual who is caught while a number of infringers are out there free. The Napster example already referred to is germane to this discussion as its liquidation had only led to the establishment of other illegal file-sharing websites[269]. The award of damages, injunction, accounts for profits, delivery up and other remedies by the Court in any action can only be directed at any person who is a party to such infringement action if found guilty. So also are the other measures of government and private stakeholder in the fight against piracy.

It is in the opinion of this writer that the problem of piracy lies basically in the unavailability of copyright works, most times. It is common knowledge that the quest for use of copyright work has grown exponentially since the UN’s Universal Declaration of Human Right. Where such work which is increasingly demanded by the public is not available, the user will look elsewhere to get it. For illustration, let us assume a hit album of a musical artist which was produced on a record label based in Lagos, Nigeria.  The artist is of course known in other parts of Nigeria (we are talking of about 35 other States and the FCT, Abuja), doing shows and granting media interviews while at the same time, enjoying quality air play. This substantiated in the record being tops on different chart lists, leading to more demand for the record. A fan who could not obtain the record in faraway place like Maiduguri will not hesitate to get a pirated copy for his enjoyment. We might as well say, in reply, that the problem can be easily corrected by proper distribution channels. We must therefore remember to note that the present day economic reality has not made that really possible. Providing licences to those faraway places is a panacea to countering acts of piracy since as we have noted earlier, the licensee who had paid royalties or expected to forward royalties on the basis provided in the terms of the licence, will strive to protect his interest in the copyright work thus countering copyright piracy.

Let us therefore consider the basic forms of copyright licensing regarding the subject in focus – music and film - and how they can be exploited for the benefit of the Nigerian copyright industry.

4.3.1  Music Licensing

Music licensing is the process through which television outlets and producers acquire permission to use copyrighted music in their programming and productions[270]. It also involves the process of licensing, or negotiating permission, to use an existing piece of music. As earlier noted, the “license” is a document that is created to record the terms and conditions that are negotiated for the usage of the music. There are different forms of music licensing usually categorised by the rights inherent in the music which can therefore be assigned or licensed.  Music generally has two copyrights[271] which are: (a) the ownership of the music either by the actual writer of the music or a music publisher; and (b) the ownership of a particular sound recording of a piece of music usually owned by a record company or by the writer of the music. A music copyright actually consists of a bundle of ownership right with four principal parts. These rights are as follows[272]:

(i)            Publication Right; this is an authority to copy or publish the musical work.

(ii)         Mechanical (Recording) Right: this authorises the making of audio copy of the musical work.

(iii)       Synchronization Right: this, usually called ‘sync’ right, is the authority of the actual song writer or the music publisher to synchronize, or use, recordings of the musical work with a film or video.

(iv)       Performance Right: this is the right of the song writer or the music publisher to authorise the performance of the work in the public.

(v)          Grand Dramatic Right: this involves the use of the composition of the music in a dramatic performance such as a stage play, opera or video representation of the “story” of a song.

(vi)       Master Use Licence (Dubbing Right): this is a licence between a music user and the owner of music recording to use that particular recording. It also pertains to the re-recording of a particular artist’s rendition of the music.

It is important to note that in common practice, the first five of these rights emanate from the original composer and the publisher of the musical work. On the other hand, the Master Use Licence is held by the record company that released the particular artist’s interpretation of the composition[273].

4.3.1.1 The Elements of Music Licensing

In exercising the grant of a music licence, there must be basic elements present in the contract of music licence. These elements or conditions include:

(a)          Term of licence: this is the time that the music usage is allowed.

(b)          Geographical area: as noted earlier and provided by the Act[274], the music licence must also specify the territory where the licence will subsist. Although a music licence is usually made to the world[275], but can be limited to specific geographical areas for projects like music for advertising, etc.

(c)           Types of “performances” allowed: this refers to the type of performance or exhibition of the film or television production.

(d)         Compensation (or licence fees): this involves the royalties payable to the licensor being either the original writer of music or music publisher for such licence.

(e)          Screen Credit. The screen credit for licensed music is usually placed at the end credits for a film, and includes the title, author(s), performers, publisher, record company or whoever owns the recording, and who the arrangements for licensing are made through.

4.3.2  Film Licensing

Like music, rights in a film may also be licensed. There are different basic rights involved in a film production as already discussed above[276]. The operation of this film licensing[277] is however different but basically, it involves the process of licensing, or negotiating permission, to use a film or an excerpt in the film production. There are basic forms of film licensing constituting issues in the film production business. These include[278]:

(a)          Theatre owners: this is the right of the movie producer to issue “theatrical release” which usually is the showing of movies in cinema. This is quite relevant to recent development of cinema shows of films in Nigeria[279].

(b)          Non-theatrical distribution: this form of film licensing operates where permission to air a movie is granted by the movie producer to operators of passenger airlines, ships, oil rigs, or by relay in bedrooms in a hotel. This is

(c)           Dial-up Online Distributors: this form of film licensing involves permission to use film through the “video on demand” or “pay per view” plan usually through cable television service providers, mobile technology or the internet.

(d)         Video rental outlet: this form of licensing has been an albatross on the Nigerian movie industry for a long time and still is. The activities of many individuals due to the economic situation of the country at operating video rental outlets without permission are rife. However, obtaining a proper licence for its operation constitute a valid licensing of a film production. This involves the issue of licence by a movie producer to an individual or corporate person, at a sum which could either be lump sum or instalments (royalties), who then rents out the film to other users.

(e)          “Sell through” Video retailers.

(f)            Pay Television Broadcasters and Pay Cable Television: Examples of this form of film licensing include Cable and Satellite movie channels like HiNolly, Movie Magic (MM1 & 2), Hallmark, Nollywood, ART, etc.

(g)          Free Television Broadcasters and Basic Cable Television. This involves licensing of films for exhibition on “free to air” and by basic cable can deliver largest audience, but yield no return to the producer/distributor other than the basic license fees.

(h)          Another form of licensing is the public performance license[280] which involves licensing of film in order to show it at a club or bar, and/or any public place (i.e. exhibition of movie).

4.3.3  Collective Licensing[281]

Collective licensing of copyright in a work is not a recent issue in copyright administration in the copyright industry. The establishment of the first collecting society predates the adoption of the Berne Convention for the Protection of Literary and Artistic Works in 1886. The Society of Authors, Composers and Music Publisher (SACEM), a French society representing authors and composers, was established in 1852 to administer public performance rights in musical works. The emergence of American Society of Composers, Authors and Publishers with two rival societies called Performance Rights Organizations (PROs)[282] witnessed the development of collecting societies in United State. In UK, over 13 collecting societies exist in different areas of copyright administration providing services for its members. In Nigeria, the establishment of PMRS in the 1980s brought about the emergence of collecting societies but not much development has been noticed in recent times. Collective licensing basically is the licensing of right in a copyright work on a collective basis usually through the collecting societies.

A copyright collective (also known as Copyright Collecting Agency or Collecting Society)[283] is a body created by private agreements or by copyright law that collects royalty payments from various individuals or groups (users of copyright works) for copyright holders. Their authority to license works and collect royalties may either be a part of a statutory scheme or agreement with the copyright owner to represent the latter’s interests when dealing with licensees and potential licensees.

By virtue of section 39 (8) of the Act,

“collecting societies” means an association of copyright owners which has as its principal objectives, the negotiating and granting of licenses, collecting and distributing of royalties in respect of copyright works

Section 39 (1) provides that:

A collecting society (in this section referred to as “a society”) may be focused in respect of any one or more rights of copyright owners for the benefit of such owners, and the society may apply to the commission for approval to operate as collecting society for the purpose of this Act.

Collecting societies can only operate as such in Nigeria if the NCC gives approval on the satisfaction of basic requirements specified in the Act[284].
It is a very important reasoning that copyright must take its rightful place in the market place and as an important contributor to wealth creation and national economy. It is in the opinion of this writer that there is the need to make the artists’ works available to the teeming populace of users as this will counter the wave of piracy and infringement thus making these users, rightful IP users whereby remuneration is made payable to the artist for his skills and time spent in producing his works. According to scholars[285], “collecting society” is generally used internationally to describe the organization set up by the various categories of right owners to administer their rights collectively”.

There is the exclusive rights conferred on authors of copyright works and these rights forbid others to exploit the works without authorization. Ideally these rights are exercised on individual basis by agreement between the copyright owner and the individual user of the work. However, there are certain rights which are very difficult if not impossible to exercise individually and in respect of which right owners have for many years banded together to exercise on a collective basis[286]. It will be quite a horrendous task for individual users since this latter sect spreads over a billion all over the world. For an effective licensing of these works, the need for a viable system of copyright collective cannot be overemphasized. Inasmuch as our generation has been overwhelmed though to the greater advantage by computer technology[287], there is deemed to be a growing population of users of these works all over the world and if licenses are not easily obtainable, there is bound to be infringement and piracy of the copyright work. Copyright collective is indeed the answer.
As earlier remarked, beside the use of an author’s work in the form of CD, cassette and VHS, copyright also covers the public performance of an author’s work[288]. Often times, we have witnessed performances of an artist’s works on TV, Radio and even in Night Clubs and other gatherings. The unauthorised use of the copyright music amounts to infringement (once the work is lodged with the NCC)[289] until a proper license is obtained by such user. The appropriate way of use is none other than the collecting societies. However, infringement with respect to public performance, sound recording and broadcast will forever persist if the right of use of these works is not made available for a token to the wide populace of users.

4.3.3.1 Collecting Societies in Nigeria

As the over 140 million population of Nigeria increases every day, so also is the entertainment industry. Besides, works of art – literary, artistic and musical works, and sound recordings, abound our country in large mass hence the probability of wide use among the wide populace of our country. In order to forestall infringers, the emergence of the collecting societies is a welcome idea. Although collecting society is an expensive and complex system of collective administration, its need according to Professor Shane Simpson[290], is simple enough:

the negotiation, collection and enforcement of public performance income in relation to small Rights are most efficiently handled on a collective basis.

There are two collecting societies operating in Nigeria. These are MCSN (Musical Copyright Society of Nigeria), and PMRS (Performance and Mechanical Right Society).

Performing and Mechanical Right Society[291]

The Performing and Mechanical Rights Society (Ltd/Gte) was approved by the NCC on December 22, 1994, to function as a Collecting Society in respect of musical works and sound recordings. The approval is pursuant to Section 32B of the Nigerian Copyright Act (as amended)[292]. Membership of PMRS is open to all owners of copyright or neighbouring rights in musical works or sound recordings, which include songwriters, composers, publishers of music, performers, record producers, assignees, etc. Foreign owners of copyright and neighbouring rights may also benefit from the protection offered by the society through affiliation.

PMRS has as its primary objective the issuance of copyright licences to prospective users of musical works and sound recordings, authorizing such use, to collect payment from such users and to distribute the proceeds to the owners of the works. The society licences broadcasting organizations, cable satellite operators, Hotels, nightclubs, Restaurants, Banks, Airlines, Bus Operators, Events Venues, etc for the use of musical works and sound recordings. PMRS is a non-profit making organization. Its administrative costs are deducted from the royalties collected before distribution.

The society is run by a Management Board democratically elected by the members at Annual General Meetings. The Board of PMRS is presently headed by its chairman, Chief Tony Okoroji.
Musical Copyright Society of Nigeria[293]

The Musical Copyright Society of Nigeria was formed in 1990, when section 32B and Copyright (Collecting Societies) Regulations, 1993 came into force. It applied for approval by the NCC but was denied[294]. However in November 1994, the NCC approved the PMRS, which approval was made public in 1995. MCSN licenses the right to perform songs and musical works created and owned by the songwriters, composers, lyricists and music publishers who are MCSN members and also those members of foreign performing rights organizations who are represented by MCSN in NIGERIA.

The council of MCSN (Board) comprises of musicians, artists and other stakeholders in the copyright industry while Mr. Orits Williki, heads the board as its chairman. The operations and duties of MCSN are similar to that of the PMRS.

4.4.3  Experiences in other Jurisdictions (United Kingdom and United States)

The operation of collective licensing through the collective societies (or performance right organisations “PROs”) in the United Kingdom and United States are quite enormous. In the United States, there are three major collective societies (ASCAP, BMI and SESAC) referred to earlier. In the United Kingdom, there exists about 13 collective societies covering different genre of copyright[295]; and there are about 10 collecting societies in Brazil[296]. Although it is a very complex system of administrative collection, copyright collective has been proven to be economically viable and essential.

In the United States in 2005, ASCAP collected $750 million in licensing fees and distributed $646 million in royalties to its members, yielding a 12.5% operating expense ratio, the lowest of any performance rights organizations in the world[297]. In recent times, ASCAP, BMI and SESAC are distributing billions of dollars in licensing fees and royalties to their members all over the world. The United Kingdom experience is quite interesting as different genres of copyright vis-à-vis artistic, literary and musical works have their own collecting societies managing the copyright. Newspaper articles, designs, videos, performances and phonographic works are managed by collecting societies in the United Kingdom.

It is important to note that there are more than one copyright collective in these jurisdictions which afford healthy competition among the societies. These societies exercise their duties to collect royalties on behalf of their members thus giving an artist, musician or copyright owner a choice of which of the societies to represent their interests. However in Brazil, the situation is different from that in the USA and UK as collection of royalties is effected by a de facto monopoly because ECAD, a centrally controlled monopoly organisation, which collects remuneration on behalf of all societies and distributes it to rights owners through the specific society to which the rights owner is affiliated[298].

This had brought numerous developments to their copyright industry and increased the generated income of copyright owner and their governments. This is due to large scale issuance of licenses and other grants which is usually followed by compensation to the copyright owner in form of royalties to be shared by collecting society based on the demand for the work of the copyright owner – artist, songwriter, musician, author, etc.

4.3.3.3 Applying these Experiences to the Nigerian Copyright Industry

For the development of Nigerian copyright industry, it is in the opinion of this writer that Nigeria considers applying some of the experiences of the jurisdictions earlier referred to. The government through the NCC should allow persons or corporate organisations to operate collective licensing body while the NCC only takes a regulatory role as it is in those jurisdictions earlier referred to.

The licensing of copyright works through the collecting societies gives the owner leverage as against doing it himself. It affords a stronger and better bargaining.
Based also on the conventions on Intellectual Property which Nigeria is signatory to, Nigerian artists are also entitled to the principle of national treatment provided for in the Berne Convention of 1886[299]. The collecting societies operating in Nigeria can also collect royalties for their members through their foreign counterparts by virtue of the principle of national treatment. They can also license works of foreign members in Nigeria as it is done by their foreign counterparts. The collecting societies can also monitor foreign performance of member’s works in all media, to ensure that members are being paid accurately. With the availability of Intellectual Property experts, the presence of collecting societies will effectively bring in foreign revenues and provide the highest level of services to its members. By this, theirs is a bipartite agreement between Nigerian collecting society and the foreign counterpart and so also there is a tripartite agreement whereby the collecting society acts as agent for its members in relation to agreements or transactions entered to with the foreign counterpart[300].

Chapter 5

5.0         Conclusion and Recommendations

The problem of piracy is indeed an enormous one for the Nigerian economy. It is a known fact that the development of copyright industry can only bring about positive effect in a country. This has been noted at different forums on copyright and other rights in Nigeria. It is also a known fact that the measures undertaken by the NCC, PMAN, Nigerian Customs Service, NAFDAC (National Agency for Food, Drugs, Administration and Control) and other agencies of government at countering activities of pirates and counterfeiters have not been very effective. The piracy rate is still at 58 per cent as discovered in a recent survey. The survey, according to the Director General of NCC, Mr. Adebambo Adewopo,

provides a clearer picture of copyright piracy situation in Nigeria, including the attitude and knowledge levels of various stakeholders[301]. 

In the report, the effects of piracy were identified to constitute serious threat to the sustenance of the creative industries, loss of time and money which are expended in the creation of copyright works. Piracy has also undercut legitimate market, loss of Foreign Direct Investment as well as concomitant technology transfer and know-how which normally accompany FDI.

The main reasons for the rife of piracy in the Nigerian copyright industry has been identified to include: poverty, high cost of originals, greed/profitability, and weak law enforcement as reasons for the current level of piracy[302]. The survey has therefore identified some necessary measures to counter piracy which will be discussed anon.

5.1     Exploring Licensing in Nigeria

It is in the opinion of this writer that no matter how many measures we undertake at countering acts of piracy and counterfeiting, little can be achieved. This is due to the operation of these measures as they are only achieved at reacting to the act only when it is seen. The clamp down on illegal Compact Disc manufacturing factories by the NCC can only stop the act by the factories. The question of course will be how about other small factories mushroomed in other parts of the country? It is only going to be a repeat of the NAPSTER story which had only brought about other file-sharing sites within its wake. Fighting piracy from this angle will be like fighting a hydra which at cutting a part only produces another full-grown hydra.

If we consider exploring licensing in Nigeria, we will at least keep to the barest minimum, the acts of piracy. This is based on the age long principle of all Nations embodied in the UDHR that there must be balance between the rights of the copyright owner and the general public of users with respect to dealings in the copyright work. It is the opinion of the writer that where the copyright works are made available to the populace of users at reasonable price and are easily assessable, piracy like in the days of yore will become uneconomical for the pirates.

Licensing also brings about the emergence of comity of copyright owners whereby other people who now have interests in the copyright works endeavour to protect the work from abuse. We must note that since copyright can be licensed either exclusively or non-exclusively, and with respect to a particular geographical area, those licensees in that area makes copyright protection easier for all.

The effect of this is that the copyright owner or author acquires more money from license fees and royalties payments. This also transcribes to economic development in the country through provisions of job opportunities, viable economic transactions for Intellectual Property practitioners, provisions of funds for the government in terms of license permit fees to the National Film and Video Censors Board (NFVCB), the Nigerian Copyright Commission (NCC) and other agencies of the government. The exploitation of licensing regime in Nigeria will in fact bring about Foreign Direct Investment (FDI) whereby broadcast, artistic works, films, musical works and other copyright works are licensed with the concomitant effect in technology transfer and technical know – how[303].

5.2         Making Collective Societies work in Nigeria

By extension, making the licensing regime work through the collecting societies should be encouraged. This, as earlier discussed, will bring about easier issuance of licenses to users, and collection of license fees and royalties. This ensures and guarantees adequate protection of the rights of copyright owner and authors since by their membership agreement, it is specified which rights are to be managed by the collecting society and what rights are to be left within the control of the right owner for exploitation. Copyright collective should therefore be allowed autonomy to work in Nigeria and more societies should also be allowed to be established as this allows for healthy competition within the industry at a premium representation of artists, and copyright owners which should also cover other genres of copyright other than musical works[304].

Collective licensing is sure the way forward in the fight against copyright piracy and the development of the Nigerian copyright industry. In attaining this, we should look towards educating stakeholders and Nigerians in general on the importance of the collecting societies in the administration of rights in the copyright works.

Moreover, it is pertinent to point out at this juncture the court actions undertaken between the existing collective societies in Nigeria and the NCC. It is the opinion of this writer that such is unnecessary. It is in fact a waste of limited resources which should be channelled to other things. It is also the opinion of writer that the proposed merger of the collective societies can only foster chaos. The co-existence of the two societies will bring about healthy competition within the industry and development of copyright. They should therefore work together in making the industry better managed.

5.3         The Role of Lawyers in Copyright Licensing Transactions

The Nigerian copyright industry can only grow if the experts are allowed to manage it. The role of Intellectual Property Lawyers and practitioners can therefore not be overemphasized in this regard. It is the lawyers, who could draft, dissect and analyse a proper license agreement. They should therefore be allowed to take the front seat in copyright issues and administration[305]. This will be achieved through incorporation of Intellectual Property Law into University curriculum, and organising seminars and workshop for stakeholders, lawyers, judges, and law students.

5.4         Proposed Copyright Law Reforms

The recommendations of the survey conducted by the NCC with the support of the Ford Foundation, USA quite afford much to mind. These recommendations are that[306]:

(i)            Community collaboration in the fight against piracy must be pursued with vigour. Stakeholder participation in the design, implementation and enforcement of programmes to combat copyright piracy is desirable.

(ii)         Concrete steps should be taken by right owners, producers and marketers/distributors to ensure that original copyright works are made available to the consuming public and that they are reasonably priced.

(iii)       Right owners' association should be involved in advocacy programmes and should engage in more pro-active campaign against piracy.

(iv)       Government should strengthen the NCC and empower it to more easily destroy pirated works with a view to discouraging pirates. The penalties for piracy should also be reviewed upward as sufficient deterrence to piracy.

This writer in his opinion suggests that there is a need to make for revision of the provisions of the Copyright Act. This had been undertaken by the United Kingdom from whom we inherited the present Act. They had since amended their 1959 Copyright Act which the Nigerian Copyright Act was modelled after, to be the Copyright Designs and Patents Act of 1988. The need for an overhauling of the Copyright Act is long overdue. New provisions that reflect the modern day development should be incorporated into the Act. Other areas are the following:

(i)            The upward revision of the sum of fine to be pronounced by the Court should a defendant be found guilty in an infringement action. The sum at present are quite small as this might not be a proper deterrent to infringers.

(ii)         There is the need to proffer more provisions relating to licensing. There are only two direct provisions on licensing in the Act. There should be more on the operation of the licensing regime in Nigeria[307].

(iii)       It is also suggested that rather than pronouncing penalties in form of fine or imprisonment, or other remedies by the Court, there should be an option (if not compulsory) for the infringer to obtain a license, thus making the prior unauthorised use, legal.

(iv)       The provision of section 39(3) which allows for one collecting society with respect to a genre of copyright must be reviewed to allow for healthy competition of collective licensing in Nigeria.

(v)          The Act should also be reviewed to incorporate infringement of soft (or computer) format of literary and artistic works, music, video and other copyright work, and the licensing of rights inherent in these works.

In all, the licensing regime should be encouraged through the collecting societies while the legal practitioners should take their place in the education of the populace and stakeholders of the copyright industry for the development of copyright in Nigeria.

BIBLIOGRAPHY

BOOKS

1.      Babafemi, F. O. (2006): “Intellectual Property: The Law & Practice of Copyright, Trade Marks, Patents & Industrial Designs in Nigeria, First Edition” (Justinian Books Limited).

2.      Bainbridge, David I., (1999): “Intellectual Property 4th Edition” (Financial Times, Pitman Publishing).

3.      Cornish, W. R. (1996): “Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights, Third Edition” (Sweet & Maxwell, London).

4.      Fabunmi, J. O. (2006): “Equity and Trusts in Nigeria 2^nd Edition”, (Obafemi Awolowo University Press Limited).

5.      Friedman, L. Thomas (2005): “The World is Flat: A brief History of the Twenty-First Century”, (Picador).

6.      Garnett, K., (2002): “Copinger & Skone James on Copyright: First Supplement to the 14^th Edition” (Sweet & Maxwell, London).

7.      Garnett, K. and James, R. J. (1999): “Copinger & Skone James on Copyright 14th Edition”, (London, Sweet & Maxwell).

8.      Laddie, Prescott, Vitoria, Speck, & Lane (2000): “The Modern Law of Copyright & Designs”, (London, Butterworths).

9.      Trade Marks Journal, Vol. 1, No. 2, dated 30^th July, 2008.

ARTICLES/LECTURE NOTES

1.      Adedeji, A.A.(2008): “The Legal Protection of Intellectual Property in Nigeria” being a paper delivered at the Sanitation Workshop on Intellectual Property, organised by the Intellectual Property and Technology Transfer Office (IPTTO), Obafemi Awolowo University, Ile-Ife, Nigeria, at the Conference Centre, OAU.

2.      Adedeji, A. A., (2004), “Antom Piller Order As A Remedy for Copyright Infringement in Nigeria: A Critical Appraisal”, (Fountain Quarterly Law Journal, Vol. 1, pp. 184 - 199)

3.      Aluko, ‘Segun, (2008); “The Collecting Society: A Panacea for Piracy and Development for the Copyright Industry in Nigeria” (The Advocate: The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria, Vol. 25 – 26), at pp. 111 - 119.

4.      Opadere, O.S., Lecture Notes on Evolution of Copyright delivered in Intellectual Property Law Class, Faculty of Law, Obafemi Awolowo University (unpublished) 19^th December, 2006

INTERNET MATERIALS

1.      Aluko & Oyebode, Intellectual Property Newsletter, published June, 2007, http://www.alukooyebode.com/publications/NL_IPJun07.pdf accessed on 20th August, 2008

2.      “Copyright”, http://www.mcprs-prs-alliance.co.uk/SiteCollectionDocuments/Copyright/Copyright_Law_Intoduction.pdf accessed on 09/09/2008

3.      DaCosta, Gilbert (2008), “Nigerian Film Industry Thrives”, www.voanews.com/mediaassets/english/2008_05/dacosta_Nigeria_film_industry_11may08

4.      Encarta Dictionary, Microsoft® Student 2007 [DVD]. Redmond, WA: Microsoft Corporation.

5.      “File Sharing” Microsoft ® Student 2007 [DVD], Redmond, WA: Microsoft Corporation, 2006.

6.       “Film Music” FAQ, “Music Licensing – Overview”,  film_music_overview.pdf, http://www.experiencefestival.com/music_licensing - overview assessed on 20/09/2008

7.      Garba, Kabir Alabi: “Piracy level in Nigeria is 58 per cent, reveals survey” posted on Thursday, August 28, 2008, www.guardiannewsngr.com

8.      http://www.pmrsnigeria.com/

9.      http://www.pmrsnigeria.com/about_us.html

10.  http://www.mcsnnigeria.org/

11.  http://www.nfvb.gov.ng/aboutus.php?pagesectionid=1

12.  Lambert, John, (2002) “Copyright: Secondary Infringement”, www.ipit-update.com/copy16.htm accessed 12/09/2008

13.  Music Industry Online: “Nigerian Copyright Commission fighting Piracy with Hologram Security Device”, published in April 7, 2005, www.mio.co.za/news.php, accessed on 27/06/2008

14.  Music Law, “Music industry contracts: band manager contracts, band management contract, music producer contracts”, http://www.music-law.com/practical.html accessed 29/07/08

15.  Music Law, “Record Contracts basics: signing recording contract, Label Music Contract”, www.music-law.com/contracts. html, accessed on 27/07/08

16.  Music News, www.nigeriafilms.com, (Mon, 23 Jun 2008), “I’m ready to arrest pirates – D’Banj”

17.  “New Nigerian Cinema: An Interview with Akin Adesokan (2006)” www.Indiana.edu on May 27, 2008; http://en.wikipedia.org/wiki/Cinema_of_Nigeria accessed on 7^th August, 2008

18.  Nwankwo, Betrand, (2008): “Nigeria: HITV Commends NCC on Piracy War”, posted to the web on 28 May, 2008, http://allafrica.com/stories/200805280372.html accessed on 29/06/2008.

19.  Orlik, Peter B., “Music Licensing”, (The Museum of Broadcast Communications), www.musuem.tv/musiclicensing.php accessed on 20/09/2008

20.  Outdoor Cinema Network, (1995-2008), “Film Licensing (Public Performance License), http://www.outdoorcinema.net/index.php?option=com_content&task=view&id=56, accessed on 21/09/2008

21.  “Peer-to-Peer File-Sharing (P2P) and How KaZaa Works”, www.kazaa.com accessed 27/06/2008

22.  Simpson, S., (1996): “Role of Collecting Societies in Australia: A Presentation to the Government of Western Australia in April, 1996”, www.shanesimpson.com

23.  Tanis, Nicholas, “Motion Picture”, Microsoft ® Student 2007 [DVD]. Redmond, WA: Microsoft Corporation, 2006

24.  Thisday Editorial: “Nigeria: Up Against Piracy”, posted to the web on 12 September, 2007, http://allafrica.com/stories/200709120516.html accessed on 29/06/2008

25.  Tom-Lawyer, Godwin, “The Role of Collecting Societies in the Music Industry”, http://lexprimus.com/Publications/The_Role_of_Collecting_Societies_in_the_Music_Industry.pdf

26.  Wikipedia, “Cinema of Nigeria”, http://en.wikipedia.org/wiki/Cinema_of_Nigeria accessed on 7th August, 2008

27.  Wikipedia, “Copyright Collective”, http://en.wikipedia.org/wiki/Copyright_collective accessed 21/09/2008

28.  Wikipedia (2008), “File-Sharing”, http://en.wikipedia.int/file_sharing  accessed 27/06/2008.

Wikipedia, Free Encyclopaedia, “History of Music Law, “Record Contracts basics: signing recording contract, Label Music Contract”, www.music-law.com/contracts. html, accessed on 27/07/08Copyright Law”, http://en.wikipedia.org/wiki/History_of_Copyright_Law accessed on 13/3/2007

Footnotes

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[1] See Copyright Act, Cap C.28 Laws of the Federation of Nigeria, 2004 at s.12(2),

[2] Adedeji, A.A.(2008): “The Legal Protection of Intellectual Property in Nigeria” being a paper delivered at the Sanitation Workshop on Intellectual Property, organised by the Intellectual Property and Technology Transfer Office (IPTTO), Obafemi Awolowo University, Ile-Ife, Nigeria, at the Conference Centre, OAU.

[3] Bainbridge, David I., (1999): “Intellectual Property 4th Edition” (Financial Times, Pitman Publishing), p.324. Bainbridge identified the theories as: natural law (or moral rights theory in copyright), incentive, reward and contract theories.

[4] See the Universal Declaration of Human Rights (UDHR) (1948-1988), Article 27

[5] Bainbridge, op. cit., at p. 1

[6] Ibid, at p. 1

[7] Trademarks Act, Cap T13, Laws of the Federation of Nigeria, 2004. Note that the Trademarks Act was fashioned against the United Kingdom Trademarks Act when it was enacted in 1965

[8] See The Trade Marks Journal, Vol. 1, No. 2, dated 30^th July, 2008

[9] Bainbridge, op. cit., at p. 321

[10] Formerly Cap344, Laws of the Federation of Nigeria, 1990

[11] See Babafemi, F. O. (2006), “Intellectual Property: The Law & Practice of Copyright, Trade Marks, Patents & Industrial Designs in Nigeria, First Edition” (Justinian Books Limited), p.346. Note that until recently; there were no provisions for the original registration of patents in Nigeria but patents which had been obtained in the United Kingdom under Registration of United Kingdom Patents Act, Cap. 182, LFN 1958 were registrable or renewable in Nigeria. Hence, the repeal of the Act, and other Acts like Patent Right (Limitation) Act, 1968, and Patent Act, 1949(Registration of United Kingdom Patent Act), were repealed as provided for in section 31(1) & (2) of the Patent and Designs Act.

[12]Copyright Act, op. cit, S. 1

[13] Ibid, S. 1(2)(a)-(b)

[14] Ibid, S. 1(2)(a)

[15] Designers’ Guild v. Russell Williams (2001) 1 All E.R. 700

[16] Copyright Act, op. cit., S. 1(2)(b)

[17] Ibid, S. 1(3)

[18] Ibid, S. 1(4)

[19] Ibid., S. 34, provides for the establishment of the Nigerian Copyright Commission (NCC) which shall be a body corporate with perpetual succession and a common seal. The Commission is empowered to exercise the following functions as provided for in section 34(3) of the Act:

(a)     Responsible for all matters affecting copyright in Nigeria as provided for under the Act;

(b)     Monitor and supervise Nigeria’s position in relation to international conventions and advise Government thereon;

(c)     Advise and regulate conditions for the conclusion of bilateral and multilateral agreements, between Nigeria and any other country;

(d)    Enlighten and inform the public on matters relating to copyright;

(e)     Maintain an effective data bank on authors and their works; and

(f)      Be responsible for such other matters as relate to copyright in Nigeria as the Minister may, from time to time, direct.

Mr. Adebambo Adewopo is presently the Director General, NCC with headquarters in Abuja and offices spread within the six geo-political zones of the country.

[20] See Wikipedia, Free Encyclopaedia, “History of Copyright Law”, http://en.wikipedia.org/wiki/History_of_Copyright_Law accessed on 13/3/2007

[21] Opadere, O.S., Lecture Notes on Evolution of Copyright delivered in Intellectual Property Law Class, Faculty of Law, Obafemi Awolowo University (unpublished) 19^th December, 2006

[22] Ibid.

[23] Wikipedia, op. cit

[24] Ibid

[25] Ibid

[26] Opadere, O. S., op. cit.

[27] Wikipedia, op. cit.

[28]Ibid, (1710) 8 Anne, Ch. 19

[29] Ibid

[30] Cap C28, LFN 2004, op. cit.

[31] Ibid., S. 6(1)(b)

[32] Ibid, S. 6(1)(c)

[33] Ibid, S. 6(2)

[34] Ibid, S. 7

[35] Ibid, S. 8

[36] Ibid, S. 9

[37] Ibid, S. 1(2)

[38] Laddie, Prescott, Vitoria, Speck, & Lane (2000), “The Modern Law of Copyright & Designs”, (London, Butterworths),  par. 3.48 at p. 79

[39] Ibid, p. 79

[40] Ibid; See also, Williamson Music Limited v. Pearson Partnership (1987) FSR 97, 109

[41] Ibid.

[42] Wikipedia, “Cinema of Nigeria”, http://en.wikipedia.org/wiki/Cinema_of_Nigeria accessed on 7th August, 2008

[43] Garnett, K. and James, R. J. (1999), “Copinger & Skone James on Copyright  14^th Edition”, (London, Sweet & Maxwell) p.1372

[44] Ibid at p. 1373

[45] Ibid, p. 1373. Songwriter encompasses composer and lyricist

[46] Ibid, p. 1373. Performer encompasses vocalists, musicians and conductors

[47] Laddie, Prescott, Vitoria, Speck, & Lane: op. cit., at p.927. See also, Music Law, “Music industry contracts: band manager contracts, band management contract, music producer contracts”, http://www.music-law.com/practical.html accessed 29/07/08

[48] Music Law, “Record Contracts basics: signing recording contract, Label Music Contract”, www.music-law.com/contracts. html, accessed on 27/07/08. Laddie, Prescott, Vittoria and Speck, op. cit., p. 928

[49] Recent developments in the Nigerian music industry attest to this whereby artists after the music recording establish record companies or publishing outfit to make and distribute their music. For example, 9ice, a Nigeria top chart artist released his hit album “Gongo Aso” on his record label, Alapo Meji Records.

[50] Garnett, and James, op. cit. at p.1381

[51] Ibid, p. 1381; see also Laddie, Prescott, Vitoria, Speck, & Lane: op. cit., at p.928 – 929.

[52] Ibid, p. 1384

[53] Copyright Act, op. cit., S. 7; this is also subject to the exceptions provided in the third Schedule to the Copyright Act

[54] Wikipedia, op. cit., see “New Nigerian Cinema: An Interview with Akin Adesokan (2006)” www.Indiana.edu on May 27, 2008; http://en.wikipedia.org/wiki/Cinema_of_Nigeria accessed on 7^th August, 2008

[55] Ibid.

[56]  Da Costa, Gilbert (2008), “Nigerian Film Industry Thrives”, www.voanews.com/mediaassets/english/2008_05/dacosta_Nigeria_film_industry_11may08

[57] Wikipedia, “Cinema of Nigeria” http://en.wikipedia.org/wiki/Cinema_of_Nigeria accessed on 7^th August, 2008

[58] See Copyright Act, op. cit., S. 1(2)-(3), and 6(1)(c)

[59] Tanis, Nicholas, “Motion Picture”, Microsoft ® Student 2007 [DVD]. Redmond, WA: Microsoft Corporation, 2006. See also, Garnett, and James, op. cit. at p.1385

[60] Tanis, op. cit.

[61] Ibid, p. 1385 The prints of all materials which have been filmed, which are viewed on a regular basis by the director in order to ensure the quality of what has been filmed and that, no re-takes are required.

[62] Tanis, op. cit. Note that as the director and editor make final decisions during the editing process, they eliminate the extra takes, so that the structure of the final picture emerges in the form of a rough cut. Then, as scenes are polished and transactions smoothed, the rough cut gradually becomes the first cut. See also, Garnett,  and James, op. cit., p. 1386

[63] Garnett, and James, Ibid

[64] Ibid

[65] Tanis, op. cit.

[66] See Copyright Act, op. cit., Pars. (c) and (e) of the Second Schedule

[67] It should be noted that the Nigerian film industry’s operations are not really organised, so the above may not necessarily apply.

[68] See the long title of the Copyright Act, op. cit.

[69] See Paragraph 1.4, above

[70] Note that under Section 6 of the Copyright Act, the general nature of copyright shall govern the genres of copyright viz: literary or musical works, artistic work, and cinematograph film in relation to acts to reproduce the work, publish the work, perform the work in public, distribute the work to the public, broadcast and communicate the work to the public, make adaptation of the work, and do any of the acts above in relation to the adaptation of the work.

[71] Garnett, and James, p.389

[72] Copyright Act, op. cit., S.11

[73] The principle of “fair use” or “fair dealing” is provided for in the Second Schedule to the Copyright Act, which governs exceptions from copyright control of some acts one of which is the use of work for the purpose of educational, research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except the work is incidentally included in a broadcast.

Note also that the Third Schedule to the Copyright Act also provides for special exceptions in respect of a sound recording of a musical work which include acts of recording or an adaption of the work, and shall also consider circumstances whereby the record producer gave to the owner of the copyright the prescribed notice of his intention to make a recording in relation to the musical work. Other instances include the payment of royalties to the owner in respect of importation or retail sale of the work. Where the conditions stipulated in Paragraph 1(a) – (d) relating to giving of notice and royalty are not fulfilled in relation to the copyright owner, such exceptional use shall constitute an infringement of the copyright in the work.

[73] Copyright Act, op.cit, S.16.

[74] “Copyright”, http://www.mcprs-prs-alliance.co.uk/SiteCollectionDocuments/Copyright/Copyright_Law_Intoduction.pdf accessed on 09/09/2008.

[75] Copyright Act, op.cit, S.16. An infringement of copyright shall be actionable at the suit of the owner, assignee or an exclusive licensee of the copyright, 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 an infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of the infringement of other proprietary rights. In such action for infringement, the court shall have regard to (apart from all other material considerations) (a) the flagrancy of the infringement; and (b) any benefit shown to have accrued to the defendant by reason of the infringement (see s.16 (4); and an action shall include counterclaim, and references to the plaintiff and to the defendant in an action shall be construed accordingly.

[76] This provision however has an exception which relates to any work in which copyright subsists, the reproduction of any such work, which is comprised in

(a)     the archives stored in the National Archives established under the National Archives Act; or

(b)     the public records of a State, being records for the storage or custody of which provision is made by law.

Therefore, copyright is not infringed by making or supplying any person of any reproduction of the work in pursuance of that Act or law.

[77] Garnett, and James, op. cit., at p.390

[78] Note that the provisions of Section 6 of the Copyright Act in relation to the above are in pari materia with the SS. 2(1), 16(1) of the United Kingdom Copyright Designs and Patents Act (CDPA) 1988.

[79] This right is recognised in S. 6(1)(ii) of the Copyright Act as the exclusive right of the owner of copyright works to reproduce the work in any material form.

[80] This is recognised in S. 6(1)(vi) as the exclusive right of the copyright owner to distribute to the public, for commercial purpose, copies of the work, by way of rental, lease, hire, loan or similar arrangement.

[81] See as in footnote 81above.

[82] This is provided for in S. 6(1)(iii) as the exclusive right of the copyright owner to perform the work in public.

[83] This is recognised in S. 6(1)(vii) as the exclusive right of owner of copyright work to broadcast or communicate the work to the public by a loudspeaker or any other similar device.

[84] This is provided for in S. 6(1)(viii) as the exclusive right of the copyright owner to make any adaptation of the work.

[85] Copyright Act, op. cit, S.15. See  for similar provisions in UK CDPA, op. cit., s.16(2)

[86] However, S. 16(3) provides that in an action for infringement, where it is proved or admitted that an infringement was committed but that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under the section to any damages against the defendant in respect of the infringement, but shall be entitled to an account for profits in respect of the infringement, whether or not any other relief is granted.

[87] “Copyright”, op. cit.

[88] Ibid. See also Garnett, K., (2002), “Copinger & Skone James on Copyright: First Supplement to the 14^th Edition” (Sweet & Maxwell, London) p. 34. Note further that the Nigerian Copyright Act does not delineate these categories in details but only provide for them and these interpretations are based on opinions of jurists, text writers, and judgments of the Courts of which Nigeria is lagging behind.

[89] Garnett, op. cit., p. 392 Here, the question basically is whether there is so much similarity between the original copyright work and the infringing copy that once the latter is sighted, one could comfortably say that the latter is a copy of the former.

[90] Designer Guild Limited v. Russell Williams (Textiles) Limited (2001) 1 All E.R. 700; Ravenscroft v. Herbert (1980) RPC 193; Universal Music Australia v. Sharman (2005) FC Australia 1242 (ADD) where the Court held the authorisation of infringement on the use of the respondent’s website of Kazaa Internet peer to peer file sharing.

[91] (1997) F.H.C.L.R. 496

[92] Babafemi, op. cit., at p.67

[93] Ibid, at p.68. It is very important to note in the judgment of his lordship that the use of words “exact word”, and “a result of 90% copying” will amount to the category of taking of substantial part to determine the infringement of the plaintiff’s right in the copyright work since these expressions had been made use of in cases decided in United Kingdom and other textbooks on Copyright.

[94] Garnett, and James, op. cit., at p. 403

[95] See Ladbroke (Football) Limited v. William Hill [1964] 1 W.L.R. 273 wherein the Court considered the copying of the claimants’ compilation of football matches for the purpose of their pool business by the defendants.

[96] Garnett, K. op. cit. pp. 42-43. One of the present authorities on quantifying the taking of a substantial part is the Designer Guild Limited’s case. In that case, it was held that in deciding the issue of copying, where there is no direct evidence and the question has to be decided on inferences to be drawn from the similarities between the claimant’s and defendant’s work, a comparison has to be made of the elements in common between the two works. If copying is established by this means, then according to the majority, the question of substantial part must be answered by an evaluation of the qualitative importance of part taken from the claimant’s work. For this purpose any further reference to the defendant’s work as a whole, particularly a consideration of the parts not copied, is irrelevant. The facts of that case was an action for infringement of the plaintiff’s copyright in the artwork for the fabric design lxia, which the plaintiff complained was that for the purpose of creating its own design Marguerite, the defendant had copied a substantial part of lxia. There were accordingly two main issues at the trial being (a) what, if anything, had the designers of Marguerite copied from lxia; and (b) did what had been copied amount to the “whole or a substantial part” of lxia? The trial Court gave judgment in favour of the plaintiff but this was upturned by the Court of Appeal hence, the appeal at the House of Lords. The House of Lords considered the matter taking into contemplation the findings of both lower Courts thus reaching their decision that there was indeed an act of infringement of the plaintiff/appellant’s copyright in the lxia design.

[97] (supra)

[98] Designers Guild Limited v. William Russell (Textiles) Limited (supra)

[99] See also Cornish, W. R. (1996): “Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights, Third Edition” (Sweet & Maxwell, London) at p.363 where the author focuses on the infringement basic concepts of copyright. The determination of substantial part also include: unaltered copying; extent of defendant’s alteration; character of plaintiff’s or defendant’s work; nature of plaintiff’s effort; extent of the plaintiff’s effort; manner in which the defendant has taken advantage of plaintiff’s work; whether the defendant’s use will seriously interfere with the plaintiff’s exploitation of his own work; and reproduction by the original author.

[100] Electronic Techniques (Anglia) Ltd v. Critchley Components Ltd [1997] F.S.R. 401 at 409 cited with approval in Garnett, and James, op. cit. at p.405

[101] Ladbroke (Football) Ltd v. William Hill (Football) Ltd [1964] 1 W.L.R. 273 at 288 which is based on the action for infringement of the claimant’s copyright in the football pools compilation of football matches and results.

[102] Ibcos Computers Ltd v. Barclays finance Ltd [1994] F.S.R. 275 cited with approval in Garnett, K. and James, R. J, op. cit. at p.40

[103] Garnett, and James, ibid at p.406

[104] Designers Guild Limited v. William Russell (Textile) Limited (supra)

[105] See Copyright Act, op. cit., S. 15

[106] –See Bilhoffer Mchinenfabrik GmbH v. Dixon & Co. Ltd [1990] F.S.R. 105 at 108

[107] (1963) Ch. 587, CA. In that case their lordships (Wilmer L.J. quoting Wilberforce, J.) stated the conditions to be applied in proving subconscious copying which include:

- the degree of familiarity (if proved at all, or properly inferred) with the plaintiff’s work;

- the character of the work, particularly it’s qualities of impressing the mind and memory;

- the objective similarity of the defendant’s work;

- the inherent probability that such similarity as is found could be due to coincidence;

- the existence of other influences on the defendant composer;

- the quality of the composer’s own evidence on the presence, or otherwise, in his mind of the plaintiff’s work.

[108] Ibid.

[109] Austin v. Columbia Gramophone Co. Limited [1917-23], Mac. Cas. 398, the head note reads: “it must depend on whether the air taken is substantially the same with the original” – per Astbury, J., quoted with approval from earlier case of D’Almaine v. Boosey (1935) 1 Y&C Ex. 288

[110] Garnett, and James, op. cit. at p.432

[111] Francis Day & Hunter v. Bron, (supra); expert evidence was also called in Designers Guild Limited’s case to determine the substantiality of the copying of the lxia design of the claimant by the defendant.

[112] Laddie, Prescott, Vitoria, Speck, & Lane (2000), “The Modern Law of Copyright & Designs” (Butterworths, London) at p. 81

[113] See CDPA, op. cit., S. 5A(1). The Copyright Act, op. cit., S.51 thereof defines sound recording as “the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced, but does not include a soundtrack associated with a cinematograph film”

[114] Films are considered in the Copyright Act 2004 as “cinematograph films” which “include the first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a sound track associated with the cinematograph film”. Besides, the basic rights in cinematograph films include reproduction, public performance, synchronisation, and distribution  (see S. 6 (1)(c))

[115] See generally, CDPA, op. cit., S. 16. Note however that S. 15 of the Nigerian Copyright Act relating to infringement does not provide for the elements of infringement under the reproduction right; but a cursory look at the provision of S. 6(1)(c)(i) and (iii) of the Act reveal these elements though not as clear-cut as in the UK Act.

[116] Copyright Act, op. cit, S. 51

[117] See Norowzian v. Arks Ltd [1998] F.S.R. 394

[118] Ibid at S. 51 which defines an “author” in the case of cinematograph film, as the person by whom the arrangements for the making of the film were made, unless the parties to the making of the film provide otherwise by contract between themselves. The right of the principal director in the film production has notably undergone amendments in the UK CDPA 1988.

[119] See CDPA, op. cit. s.5B (2). This position on soundtrack accompanying a film as being a film rather than a sound recording is also provided for in s. 51 of the Copyright Act, op. cit. where sound recording is defined as: “the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced, but does not include a soundtrack associated with a cinematograph film” (emphasis mine)

[120] Copyright Act, op. cit. s. 15(1)(b)

[121] Ibid., at S. 6

[122] Garnett, and James, op. cit. at p.453

[123] Ibid at p. 454. Note that these explanations of rental and lending rights are not provided for in the Nigerian Copyright Act, but the UK CDPA 1988 makes provisions for this and in determining what constitutes direct or indirect economic or commercial advantage, s.18A(5) makes it clear that the mere making of payment which does not go beyond what is necessary to cover the operating costs of the establishment is not to amount to such an advantage.

[124] Ibid. An establishment will include public libraries, but of course, not limited to some other places like, game centres, video clubs and book clubs. A very important element of these rights is that the work must not be for commercial purpose, no revenue is derived therefrom and no admission fee is charged for the communication, if any, to the public of the work so used, and it must be for the public interest, See also, par (k) of the Second Schedule to the Copyright Act

[125] Section 18 thereof provides for the classes of acts from both the rental and lending rights

(a)     the making available of the original work or copies for the purpose of public performance, playing or showing in public, broadcasting or including in a cable programme service (s.18A(3)(a)

(b)     the making available of the work or copies for the purpose of exhibition in public (s. 18A(3)(b)

(c)     the making available of the work or copies for on-the-spot reference use. (s. 18A(3)(c)

[126] Copyright Act, op. cit., Second and Third Schedules provide for exceptions to infringement of copyright which include remuneration paid to the copyright owner, forming the basis of copyright protection in the first place. See also, SS. 6 -10 on the general nature of copyright in different works protected by copyright.

[127] UK CDPA 1988, op. cit, S. 19(2)(a)

[128] Ibid, S. 19(2)(b)

[129] Ibid, S. 19(3)

[130] Copyright Act, op. cit., SS. 8-9, which provide for the nature of copyright in broadcast, and broadcasting of works incorporated in cinematograph film, respectively.

[131] The following English cases made attempt at interpreting the expression “in public”: Ernest Timer, etc, Ltd v. Performing Right Society Limited [1943] Ch. 167; Duck v. Bates [1884] 13 QBD 843 wherein the court held that putting on of a play by children or adults at home would obviously not be in public, being domestic and private. Also where such performance is for friends in a house hired for the occasion, it might not be a performance in public. Note, however, that performance before a select group of people was held as performance in public in a decided English case of Performing Right Society v. Hammond’s Bradford Brewery Co. Limited [1934] Ch. 121 where it was held that invitation to the public for a performance makes the audience recipient of that performance being the act of infringement in question.

[132] Copyright Act, op. cit., Second Schedule

[133] Ibid., Schedule II, Paragraph (a)

[134] Ibid, paragraph (c)

[135] Ibid, paragraph (d)

[136] Ibid, paragraph (j)

[137] Ibid, paragraph (m). this is subject to the condition that the owner of copyright in the work shall receive a fair compensation determined, in the absence of agreement, by the Court.

[138] Ibid, paragraph (o). it appears here that where such shows which include performances of songs, drama and other copyright works are staged in the public by non-governmental organisations or other organisations for non-profit purposes, such works will not be regarded as being performed in public within the meaning of s. 6 of the Act on the acts restricted by copyright. This of course is a matter which can only be decided by the court, and a case is separate and distinct from another one based on their facts and principle of law in question.,

[139] Ibid., S. 51. UK CDPA 1988, op. cit.., S. 6(1) defines “broadcast” as “the transmission by wireless telegraphy of visual images, sounds or other information which is either capable of being lawfully received by members of the public or is transmitted for presentation to members of the public”.

The UK Act also defines “wireless telegraphy” to mean “the sending of electro-magnetic energy over paths not provided by a material substance constructed or arranged for that purpose”. .

[140] Ibid., S. 6(1)(vii),

[141] Ibid, S. 9

[142] Ibid, S. 8

[143] Ibid, S. 8(2)

[144] Ibid, S. 8(3), these exceptions include those stipulated under paragraphs (a), (h), (k), (n) and (o) of the Second Schedule to the Act, which applies to broadcast in like manner as applicable to copyright in literary, musical and artistic work or a cinematograph film.

[145] Ibid., S. 51

[146] Ibid., 6(1)(viii)

[147] Ibid, s. 6(1)(ix); see also

[148] See Bryne v. Statist Co. [1914] 1 K. B. 622 per Bailhache, J. “I think the words “original literary work” mean a literary work of which the person whom the copyright is laid, or through whom the title to the copyright is traced, is the author”; see further, Walter v. Lane [1900] A. C. 539 wherein the House of Lords held that a shorthand writer who reported a speech verbatim was the author of his report.

[149] See Wiseman v. George Wiedenfeld & Nicolson [1985] F.S.R. 525 wherein the second defendant, Donaldson, turned his novel, “The English Way of Doing Things”, into a play with the same title. He did so, on the suggestion of the claimant, who at various stages of the adaptation made suggestions and criticisms. The claimant subsequently claimed to be co-author of the play and so entitled to a share in the copyright. Whitford, J. held that both collaborators, Mr. Wiseman and Mr Donaldson, must answer to the description of authors of the dramatic work. To be a joint author, a collaborator must make some contribution to the literary or dramatic form in which alone, copyright can subsist.

[150] See  Copyright Act, op. cit., S. 6(1)(viii) and (ix)

[151] See Ravenscroft v. Herbert [1980] RPC 193 for example wherein the plaintiff commenced the action on the claim that the defendant infringed his right in his non-fiction work; “The Spear of Destiny” as entitled in the defendant’s novel; “The Spear”. The Court considered amongst other things the right of the plaintiff in his work as a historical work and the act of the defendant as an infringement of the work in making an adaptation of it in a novel.

[152] The author of a work is a generic name for the person who makes the work. Therefore, an author by virtue of S. 51 of the Act includes: principal director of a cinematograph film; performer or musician for performance; songwriter for musical works, author (novelist, writer, etc) for literary work, and an artist for an artistic work; producer for a sound recording, etc. Furthermore, by virtue of S. 12(3), author includes his heirs and successors in title.

[153] CBS Songs Ltd v. Amstrad Plc [1988] A. C. 1013 HL, citing with approval, Atkin L.J. in Falcon v. Famous Players Film Co. [1926] 2 K.B. 474 at 499.

[154] [1926] 2 K.B. 474 at 499

[155] [1914] 1 K.B. 395

[156] See Garnett, and James, op. cit. at p. 470

[157] Copyright Act, op.cit, S. 15(1)(g)

[158] Ibid, S. 15(1)(f)

[159] Ibid. But this does not mean that he will not be held liable to account for profits accrued from such unaware authorisation, whether or not any other relief is granted under S. 16 of the Act.

[160] Ibid., Second Schedule, Par. (a)

[161] This will include by virtue of SS. 10-12 of the Act, the author, heirs or successors in title, licensee, assignees and personal representatives.

[162] Copyright Act, op. cit. S. 12(2)

[163] Note further that by S. 51 of the Act, a “work” includes “translations, adaptation, new versions or arrangements of pre-existing works, and anthologies or collection of works which, by reason of the selection and arrangement of their content, present an original character.”

[164] Ibid., S. 16

[165] Ibid, S. 20

[166] Lambert, John, (2002) “Copyright: Secondary Infringement”, www.ipit-update.com/copy16.htm accessed 12/09/2008

[167] Copyright Act, op. cit., S. 51

[168] Ibid., S. 15(1)(b)

[169] Ibid, s. 15(1)(c); see also Bauman v. Fussell [1978] R.P.C. 485, a case in which the issue was whether a painting of two fighting cocks copied a substantial part of a prior photograph, displayed in an earlier exhibition, which it was accepted had inspired the idea in the artist of making the painting.

[170] Ibid, S. 15(1)(d)

[171] Garnett, and James, op. cit., p. 481

[172] See Infabrics Ltd. V. Jaytex Shirt Co. Ltd [1978] F.S.R. 451

[173] Sillitoe v. McGraw-Hill Book Co. [1983] F.S.R. 545

[174] Francis Day & Hunter v. Bron (1963) Ch. 587, CA (earlier discussed in chapter 2 where knowledge of the existence of the plaintiff’s music was admitted in evidence to proof subconscious copying of the plaintiff’s song)

[175] See XYZ Music GmbH v. King [1995]2 All E.R. 129

[176] Garnett, and James, op. cit., p. 483

[177] Okany, M. C., (1992): “Nigerian Commercial Law, Reprinted 2001”, (Africana-Fep Publishers Ltd), pp. 343 – 360.

[178] Copyright Act, op. cit. S. 14

[179] Ibid, S. 34(3)(e)

[180] Laddie, Prescott, Vitoria, Speck, &Lane, op. cit., p. 1662

[181] Friedman, L. Thomas (2005): “The World is Flat: A brief History of the Twenty-First Century”, (Picador), p. 37

[182] ibid

[183] “File Sharing” Microsoft ® Student 2007 [DVD], Redmond, WA: Microsoft Corporation, 2006. File sharing is defined in the cited work in the following expression: “File Sharing, in computer science, the use of computer files on networks, where files are stored on a central computer or a shared server and are requested, reviewed, and modified by more than one individual. When a file is used with different programs or different computers, file sharing can require conversion to a mutually acceptable format. When a single file is shared by many people, access can be regulated through such means as password protection, security clearances, or file locking to prohibit changes to a file by more than one person at a time.”

[184] Laddie, Prescott, Vitoria, Speck, &Lane, op. cit., p.1663. The Internet Service Provider (ISP) is a company which has a high-speed connection to the Internet and charges its customers for access – or intends to do so once they are firmly addicted,

[185] Ibid., at p. 1663

[186] Ibid

[187] “ Peer-to-Peer File-Sharing (P2P) and How KaZaa Works”, www.kazaa.com accessed 27/06/2008

[188] Microsoft ® Student 2007 [DVD], op. cit.

[189] Wikipedia (2008), “File-Sharing”, http://en.wikipedia.int/file_sharing  accessed 27/06/2008.

[190] Ibid. There are four generations of P2P file-sharing identified in the cited work. They include:

(i)                  First P2P generation: Service Client which involve sending request to the server which returns with information and data requested.

(ii)                Second P2P generation: Decentralisation which allows for sending and receiving of digitised information and data among the P2P users and file-sharers.

(iii)              Third P2P generation: Interest & Encrypted

(iv)               Fourth P2P generation: streams over P2P which allows for more independence among users which usually are independent of the server or ISP or the file-sharing service provider.

[191] Microsoft ® Student 2007 [DVD], op. cit.

[192] Ibid, S. 15(1)(e)

[193] Music News, www.nigeriafilms.com, (Mon, 23 Jun 2008), “I’m ready to arrest pirates – D’Banj”

[194] [1993] F.H.C.L. 318 at 328

[195] Babafemi, ibid., p. 71

[196]  Vide Supra., at p. 41

[197] Copyright Act, op. cit., S. 15(1)(f)

[198] Vide Supra., at p. 27

[199] Copyright Act, op. cit, S. 16(3)

[200] Ibid,  S. 6

[201] Ibid, S. 15(1)(g)

[202] Ibid, S. 15(2)

[203] Copyright Act, op. cit., S. 16(4)

[204] See Maurice Ukuoha v. Broad-Based Mortgage Finance Limited & Anor [1997] F.H.C.L. 477 (a matter on infringement of an artistic work); American Motion Picture Export Co. (Nig) Ltd v. Minnesota (Nig) Ltd [1981] F.H.C.L. 64 which is an action for infringement of cinematograph film.  One of the issues for determination was whether the defendant could be held so liable for infringement if it had been committed by his employee in the course of the latter’s employment. Ekikunam-Bassey, J. at p. 69, referred to Halsbury 4^th Ed. at p. 922, and held that a master will be held liable for any infringement of copyright committed by his employee in the course of employment and it is not a defence that he must have given a general warning or prohibition against the doing of the acts which might amount to an infringement.

[205] Supra

[206] Plateau Publishing Co. Ltd & Ors v. Chief Chuks Adophy (1986) 4 N.W.L.R. 205 SC at 208 – 210. Their lordships, dismissing the appeal in this suit, laid down elements to be proven in circumstance of such unawareness. Some of these elements include that:

-        the defendant had no reasonable grounds for suspecting that  copyright subsists in the work;

-        a person who mistakenly obtained authority from a person who is not the owner is liable under an action for infringement;

-        non-awareness or innocent infringement is a defence for the author of the infringing article and not the publisher

Note that from the above; one must not only assert innocence but also proof one’s innocence of the infringement.

[207] Ibid at 210

[208] Copyright Act, op. cit. S. 20(2)

[209] Ibid, S. 20(3)

[210] Ibid, S. 20(4)

[211] See the Constitution of the Federal Republic of Nigeria 1999, S. 174 empowers the Attorney General of the Federation to institute or undertake criminal proceedings at his instance. Section 38 of the Copyright Act also guarantees the power of the Copyright Inspector appointed by the NCC to “prosecute, conduct or defend before a Court any charge, information, complaint or other proceedings arising under this Act”. The power of the Copyright Inspector is subject to the power of the Attorney General of the Federation to exercise his discretion to take over and continue any such criminal proceedings instituted by him or may enter a nolle prosequi under section 177 of the Constitution. See further, Nigerian Copyright Council v. Musical Copyright Society of Nigeria & Ors. (1999) F.H.C.L. 419, (per Okeke, J.); Copyright Act, S. 38 for powers of Copyright Inspector.

[212] Ibid, S. 20(5)

[213] Ibid, S. 21(1)

[214] Ibid, S. 21(2)

[215] Ibid, S. 21(3)

[216] Ibid, S. 18. This provision provides that all infringing copies of any work in which copyright subsists, and all plates, master tapes, etc used or intended to be used for the production of such infringing copies, shall be deemed to be the property of the owner, or his assigns, of the copyright, who accordingly may take proceedings for the recovery of the possession thereof or in respect of the conversion thereof.

[217] Ibid, S. 19(2)

[218] Ibid. Here, the “interim injunction” is most effective at providing urgent and pressing palliative measure for the plaintiff. There are different types of injunction which include: Interim Injunction, Perpetual Injunction, Quia Meruit injunction, Mareva Injunction, Antom Piller Injunction, etc. For the purpose of remedying copyright infringement, Mareva, and Antom Piller Injunction are very useful.

Mareva Injunction is an injunction granted by the Court of Law

[219] See Babafemi, op. cit., p. 108 - 114

[220] Dumes (Nig.) Ltd v. Ogboli (1973) 3 U.I.L.R. 306 at 311

[221] Babafemi, op. cit. p. 110

[222] Ibid

[223] (1997) FHCL 496

[224] [1983] F.S.R. 123 CA

[225] Antom Piller KG v. Manufacturing Process (1976) Ch. 65.

[226] Adedeji, A. A., (2004), “Antom Piller Order As A Remedy for Copyright Infringement in Nigeria: A Critical Appraisal”, (Fountain Quarterly Law Journal, Vol. 1, pp. 184 - 199), at p. 184

[227] Antom Piller KG v. Manufacturing Process (supra) per Lord Denning M. R. at p. 61

[228] supra

[229] Adedeji, op. cit p. 185, cited Phillip. H. Pettit, “Equity and the Law of Trust 6^th Edition”, p. 462

[230] Ibid, p. 186. Such information more often than not includes names and addresses of persons the infringer has had dealings with, in pursuit of the illegal trade and dealings of the trade.

[231] Video Information Centre v. Rank Film Distributors Ltd [1982] A.C. 380; 2 All E.R. 76 H.L

[232] Ferodo Ltd v. Unibros Stores [1980] F..H.C.L.R. 489. In that case, the plaintiffs were the sole distributor in Nigeria of Ferodo products. Certain products said to be Ferodo brake linings were being sold by the defendant who were not customers of the plaintiffs. An agent of the plaintiffs, had on a trip-trap, purchased some of the defendants’ brake lining. The goods when compared to those held by the plaintiffs were discovered to be different from those manufactured by the plaintiffs’ parent company. The plaintiffs brought an application before the Court expressing their fears that if the defendants were not restrained prior to the trial, they would repeat the infringing act, and if inspection and detention of all infringing properties were not allowed, they would disappear as soon as the defendants become aware of the suit.  The plaintiff then applied ex parte on the same day the suit was filed pursuant to Order 29, Rule 3 of the Federal High Court Civil Procedure Rule for the Order of Injunction.

Anyaegbunam, J. granted all the prayers of the plaintiffs, relying majorly on the English Court of appeal in the Antom Piller case when he said that on account of the confidential nature of the application, the interest of justice would be better served if the motion were heard in camera. The judge therefore pointed out three conditions for the grant of the Antom Piller Order. These are:

(i)                  An extremely strong prima facie case;

(ii)                That the damage, potential or actual, must be very serious to the plaintiff; and

(iii)              Clear evidence that the defendants have in their possession incriminating documents or items; and that there is real possibility that they may destroy such materials before any application inter partes could be made

[233] Antom Piller K.G. v. Manufacturing Process (supra), p. 61

[234] Per Lord Denning M.R. in Vapormatic Co. Ltd v. Sparex (1976) W.LR.939

[235] Adedeji, op. cit., pp 189 – 190; see Booker McConnell v. Plascow [1985] R.P.C. 424 at 442 per Dillon L.J. where his Lordship itemized other safeguards from paragraphs (c) to (g) above.

[236] Copyright Act, op. cit.

[237] (1673) Vaugh 330 at 351

[238] See Schroeder Music Publishing v. Macaulay [1974] 3 All E.R. 616, HL, per Lord Reid. His lordship held that the respondent assigned to the appellants “the full copyright for the whole world” in every musical composition “composed created or conceived” by him alone or in collaboration with any other person during a period of five or it might be ten years. See also, Mellor v. Australian Broadcasting Commission [1940] AC 491; Plix Products Limited v. Frank M. Winston (Merchants) Limited [1983-85] 3 IPR 390 at 414, NZ High Ct.

[239] Laddie, Prescott, Vittoria, Speck, and Lane, op. cit., p. 903

[240] Garnett and James, op. cit, p.312

[241] Copyright Act, op. cit., S. 11(3)

[242] Ibid, S. 11 (3)

[243] Garnett and James, op. cit., p.313

[244] Ibid., S. 16 (2)

[245] Ibid., S. 12(3) which provides that for the purpose of S. 12, “author” includes his heirs and successors-in-title and it is law that a successor-in-title shall include an assignee, and personal representatives of the copyright owner.

[246] Garnett, and James, op. cit., p. 313

[247] Ibid., S. 51

[248] Licence by its dictionary meaning includes; authorisation, privilege, permission, and allowing to do something. See Encarta Dictionary, Microsoft® Student 2007 [DVD]. Redmond, WA: Microsoft Corporation.

[249] See Fabunmi, J. O. (2006): “Equity and Trusts in Nigeria 2^nd Edition”, (Obafemi Awolowo University Press Limited), p. 46. Fabunmi classified licence into three forms which include (i) bare license, granted otherwise than for valuable considerable and which is revocable at will; (ii) license coupled with an interest, which empowers the licensee not only to enter, but also to enjoy or destroy something situated on the land or subject matter of the license; and (iii) contractual licence which is unconnected with any proprietary interest, but given for valuable consideration and cannot be easily revocable except with compliance with the terms of licence.

[250] Copyright Act, op. cit., S. 51

[251] Garnett, and James, op. cit., p. 316

[252] Copyright Act, op. cit., S. 11 (2)

[253] Ibid., S. 16 (2). This will also apply to the copyright owner in exercising his right relating to an infringement in which he has concurrent rights of action with the licensee.

[254] Babafemi, op. cit., at p. 34. Note further that by virtue of S. 16 (1), an exclusive licensee, who is at law in the position of the copyright owner, will be entitled to claim as remedies; damages, account for profit, injunction and any other remedies in an infringement action.

[255] Ibid.

[256] Copyright Act, op. cit., S. 11 (4). Where a licence is inferred, it is an implied licence which will be implied by the Court should an action arise and it might be by custom, estoppel, or conduct. For example in Blair v. Osborne and Tomkins (1971) 2 Q.B. 78, C.A., an architect was hired to prepare plans for the submission of a planning application and was paid for the work to that point. The landowner, after securing the permission, undertook construction in a manner that reproduced the plans. The Court held that he had an implied licence to do so. See Laddie, Prescott, Vitoria, Speck, and Lane, “The Modern Law of copyright and Designs, 3^rd Edition, Vol. 1”, (Butterworths), pp. 908 – 913; Garnett, and James, op. cit., pp. 321 – 325.

[257] Copyright Act, op. cit., S. 37 (2). See S. 37 (3), (4) for the composition of the Panel; S. 37 (5), and Fourth Schedule for regulation for the procedure of the Panel, and functions of the Panel.

[258] Ibid., Fourth Schedule, Par. 1. Qualified persons include (a) a citizen of Nigeria or an individual domiciled in Nigeria; or (b) a body corporate incorporated under any written law in Nigeria.

[259] Ibid., Fourth Schedule, Par. 2 (1).

[260] Ibid, Par. 2 (7). See further Pars. 7(f) – (j), and Par. 3 (5) for conditions for grant of licence to reproduce and publish works for certain purposes specified in Par. 3.

[261] Ibid, Par. 2 (4)(a)

[262] Ibid, Par. 2 (4)(b)

[263] Aluko & Oyebode, Intellectual Property Newsletter, published June, 2007, http://www.alukooyebode.com/publications/NL_IPJun07.pdf accessed on 20th August, 2008 citing the Vanguard Newspaper report on 23 May, 2007 that Nigeria’s initiatives to protect Intellectual Property rights and reduce copyright infringement resulted in the United States Government removing Nigeria from its Special 301 Lists of countries blacklisted for condoning the rising incidence of Intellectual Property infringements.

[264] International Intellectual Property Alliance, (2006); “Special 301: Nigeria”, issued February 13, 2006, pp. 475 – 476.

[265] Ibid., at 475.

[266]Music Industry Online: “Nigerian Copyright Commission fighting Piracy with Hologram Security Device”, published in April 7, 2005, www.mio.co.za/news.php, accessed on 27/06/2008. See also, Thisday Editorial: “Nigeria: Up Against Piracy”, posted to the web on 12 September, 2007, http://allafrica.com/stories/200709120516.html accessed on 29/06/2008

[267] International Intellectual Property Alliance, op. cit., at p. 476. See also Garba, Kabir Alabi: “Piracy level in Nigeria is 58 per cent, reveals survey” posted on Thursday, August 28, 2008, www.guardiannewsngr.com wherein it is reported that the piracy level in Nigeria is 58 per cent in a survey recently undertaken by NCC with the support of Ford Foundation, identifying poverty, high cost of originals, greed/profitability, and weak law enforcement as reasons for the current level of piracy in Nigeria.

[268] Nwankwo, Betrand, (2008): “Nigeria: HITV Commends NCC on Piracy War”, posted to the web on 28 May, 2008, http://allafrica.com/stories/200805280372.html accessed on 29/06/2008. In the report, NCC suspected Metro-Digital Cable Television of involvement in broadcast piracy, which was a violation of the copyright laws of Nigeria.

[269] Vide Supra., at p. 57

[270] Orlik, Peter B., “Music Licensing”, (The Museum of Broadcast Communications), www.musuem.tv/musiclicensing.php accessed on 20/09/2008

[271] “Film Music” FAQ, “Music Licensing – Overview”,  film_music_overview.pdf, http://www.experiencefestival.com/music_licensing - overview assessed on 20/09/2008

[272] Orlik, Peter B., op. cit.

[273] Ibid.

[274] Copyright Act, op. cit., S. 11 (2)

[275] See Schroeder Music Publishing v. Macaulay [supra], per Lord Reid

[276] Some of these rights include the right of the authors called “performer’s property rights”, however there is no copyright in their work. These rights only allow performers to control the reproduction, distribution, and the rental and lending of recordings of their performances. Other rights in a film which can also be exploited via licensing include the soundtracks, ancillary  rights, moral rights, etc, and it is important that the copyright notice © symbol, name of copyright owner and year of first publication must be included in any use of such work by virtue of a licence.

[277] Note that film licensing is regulated by a Government authority empowered to do so. The National Video and Film Censors Board (NFVCB) is the regulatory body responsible for certification and censorship of films (called home videos) in Nigeria. The Board is set up by Act No. 85 of 1993 to regulate films and video industry in Nigeria. The functions of the Board are:
(i)            to licence

-          a person to exhibit films and video works,

-          a premises for the purposes of exhibiting films and video works,

(ii)                to regulate and prescribe safety precautions to be observed in licensed premises;

(iii)              to regulate and control cinematographic exhibitions; and

(iv)              to perform such other functions as are necessary or expedient for the full discharge of all or any of the functions conferred on it by the Act.

See http://www.nfvb.gov.ng/aboutus.php?pagesectionid=1

 For film licensing in Britain, the British Board of Film Classification (“BBFC”) or relevant local authority is responsible for the certification of films to be exhibited in Cinemas and there are six categories of certificate which include: U – Universal; PG – Parental Guidance: 12, 15, 18, and R 18 for restricted distribution only. This also applies to the NFVCB.

[278] See Laddie, Prescott, Vittoria, Speck and Lane, op. cit., at p.

[279] The movie cinemas in Nigeria include NuMetro, Silverbird Cinemas, and Lagos City Mall Cinemas, all in Lagos.

[280] Outdoor Cinema Network, (1995-2008), “Film Licensing (Public Performance License), http://www.outdoorcinema.net/index.php?option=com_content&task=view&id=56, accessed on 21/09/2008

[281] See also Aluko, ‘Segun, (2008); “The Collecting Society: A Panacea for Piracy and Development for the Copyright Industry in Nigeria” (The Advocate: The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria, Vol. 25 – 26), at pp. 111 - 119.

[282] ASCAP was established in October 13, 1913 out of a restaurant meeting of composer Victor Herbert and eight publisher and composer associates who sought some mechanism to ensure they would be paid for the public performance of their work. The two other collecting societies in United States are BMI (Broadcast Music Incorporated) established in 1940 in reaction to what stations felt was a large and unjustified increase in ASCAP’s licensing rates; and SESAC (formerly the Society of European Stage Authors and Composers before it dropped the full name and adopted the acronym and expanded its scope to encompass other genre of music in 1964) was founded in 1931 by music publishing executive Paul Heinecke, with a catalogue consisting primarily of European concert and operatic music. See Orlik, Peter B.; op. cit.

[283] Wikipedia, “Copyright Collective”, http://en.wikipedia.org/wiki/Copyright_collective accessed 21/09/2008

[284] See Copyright Act, op. cit., S. 39 (2). Where there is contravention of the provisions of the section concerning approval of the NCC as provided in S. 39 (4), the individual will be guilty of an offence and liable on conviction to a fine of N1,000 on the first conviction, and fine of N2,000 for subsequent conviction or to imprisonment for a term not exceeding six months or to both. (See S. 39 (5)). A body corporate shall be guilty of an office and liable on conviction to a fine of N10,000 on the first conviction and N2,000 for each day on which the offence continues. (See S. 39 (6)

[285] See Garnett, K., James, R. J., and Davies, G., op. cit. p. 1490

[286] Ibid.

[287] Ibid.

[288] Copyright Act, op. cit., S. 6 – 8.

[289] ibid., at S. 37

[290] Simpson, S., (1996): “Role of Collecting Societies in Australia: A Presentation to the Government of Western Australia in April, 1996”, www.shanesimpson.com  

[291] For more information, visit http://www.pmrsnigeria.com/

[292] See http://www.pmrsnigeria.com/about_us.html

[293] For more information, visit http://www.mcsnnigeria.org/

[294] Tom-Lawyer, Godwin, “The Role of Collecting Societies in the Music Industry”, http://lexprimus.com/Publications/The_Role_of_Collecting_Societies_in_the_Music_Industry.pdf

[295] The individual collecting societies operation in the United Kingdom include:

(i)                  Authors’ Licensing & Collecting Society Limited (“ALCS”)

(ii)                British Equity Collecting Society Limited (“BECS”)

(iii)              Compact Collections Limited

(iv)               Copyright Licensing Agency Limited (“CLA”)

(v)                 Design and Artists Copyright Society Limited (“DAS”)

(vi)               Directors and Producers Rights Society (1992) Limited (“DPRS”)

(vii)             Educational Recording Agency Limited (“ERA”)

(viii)           Mechanical-Copyright Protection Society Limited (“MCPS”)

(ix)               Newspaper Licensing Agency Limited (“NLA”)

(x)                 Performing Artists’ Media Rights Association Limited (“PAMRA”)

(xi)               Performing Right Society Limited (“PRS”)

(xii)             Phonographic Performance Limited (“PPL”)

(xiii)           Video Performance Limited (“VPL”)

[296] Garnett, and James, op. cit., at  p. 1499

[297] Wikipedia, op. cit.

[298] Garnett, and James, op. cit., at p. 1499

[299] Berne Convention for the Protection of Literary & Artistic Works 1886 is a very important convention relevant to the development of copyright. It is based on three principles viz:

(i)                  Principle of national treatment,

(ii)                Principle of automatic protection, and

(iii)              Principle of independence of protection.

[300] Note that this, in recent time, has been in operation by the Nigerian collecting societies whereby the collecting societies are affiliated to foreign collecting societies in the collection of royalties and issuance of licenses for their members.

[301] Garba, Kabir A., op. cit.

[302] Ibid.

[303] Note that in recent time, there are many instances of licensing of copyright works most especially in relation to audiovisual works as presently in the Nigerian entertainment industry which to some extent stemmed the tide of piracy and made the industry economically viable. An example is the theatre licence for Silverbird Cinemas and other cinemas in Lagos to show foreign movies thus providing jobs, and other amenities for the Nigerian people within Lagos. Other examples include the MTV/Silverbird License Agreement for the “MTV on Silverbird TV show” which brings about transfer of technology. Note further that for such license agreement, it must comply with the National Office for Technological Acquisition and Promotion (NOTAP) Act, Cap. C , Laws of Federation of Nigeria, 2004

[304] The experiences of the United Kingdom and Brazil described vide supra should be put into use in Nigeria thus allowing for diversification of collective licensing regime through establishment of more collecting societies for proper representation and choice of membership by the artists.

[305] The initiative of the Intellectual Property Lawyers Association of Nigeria (IPLAN) under the leadership of Dr. Sodipo must be commended but more focus should be directed to the administration and legitimate exploitation of copyright in Nigeria. Presently, it appears the Association’s operation is biased to trademarks and patents.

[306] Garba, Kabir A., op. cit.

[307] See United Kingdom CDPA, op. cit., S. 99