The Efficacy Of Nigeria’s Copyright Regime -By Oyetola Muyiwa Atoyebi

Creativity is an essential tool for the development of any society. With the constant advancement of scientific innovations and the emergence of creative minds in modern society, there is a need to ensure that the legal framework that protects these innovations are a reflection of best international practices.

INTRODUCTION

Since the inception of the 20th century, Nigeria and the world at large has witnessed significant advancements in scientific and technological innovations, which have ultimately changed the outlook of modern society, hence the christening of this present civilization as ‘the jet or computer age’.

Human creativity and innovation has become a significant asset in this age as a result of the rapid expansion of science, technological improvements in automobiles, smartphones and gadgets, medicine, engineering, and other fields. As a result of this, the establishment of laws that guide and regulate the works of the human intellect has become necessary.

Intellectual property is a distinct area of law that has acquired much attention in some jurisdictions across the globe, including Nigeria. In jurisdictions that have functional intellectual property jurisprudence, it has without a doubt, impacted the socio-economic growth of such countries. On the 26^th of September 2016, the US Commerce Department released a comprehensive report on “Intellectual Property and the US Economy”  which states that IP intensive industries support at least forty-five million US jobs, and contributes more than six trillion dollars  (38.2 %) of US Gross Domestic Product (GDP)[1].

In Nigeria, the most referenced intellectual property legislations are the Copyright Act, 2004 and the Patents and Designs Act, 2004 and by extension, the African Continental Free Trade Area (AFCTA) Agreement 2018. Indeed, with the enactment of these laws, it is generally expected that the innovations of persons in Nigeria are comprehensively protected. Whilst these laws have indeed helped to some extent in the reduction of copyright infringements, Nigeria still witnesses a high level of piracy and other illegalities as these laws are still being constantly violated.

This article seeks to examine the efficacy of Nigeria’s copyright law enforcement regime. In doing so, it discusses the inherent shortcomings therein, and states recommendations on how it can be overhauled to achieve optimum efficacy.

MEANING OF INTELLECTUAL PROPERTY AND COPYRIGHT

Intellectual property is a category of property that includes intangible creations of the human intellect[2]. It is largely a product of the mind. Unlike a tangible property such as land where the landowner can build a fence as a security to protect his property, intellectual property is intangible, hence there are difficulties and the owner do not enjoy such physical protection. Also, unlike tangible goods that deplete when passed from one consumer to another, intellectual property does not deplete when it is transferred between consumers. For instance, a poem recited to an audience today will also have the same words and value if is recited to a completely different audience a month later. Hence, the protection of the products of the mind or intellect is extremely important.  

It is an indisputable fact that copyright is a monopoly of limited duration,^[3] but unlike most monopolies, it is a legitimate monopoly created by the law and enjoyed by the author of an original work. Black’s Law Dictionary^[4] defines copyright as:

“The right of literary property as recognized and sanctioned by positive law. An intangible incorporeal right granted by statute to the author or originator of certain literary or artistic productions whereby he is vested for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.”

The above-mentioned right which is known as ‘copyright’ can be licensed, transferred and/or assigned by the author of the work”.^[5] This position has been adopted judicially in a host of cases including Corelli v. Gray,^[6] Jerrold v. Houston,^[7] and Rees v. Melville^[8] where Lord MacCoughton defined copyright as a negative right (because it restricts others from doing a particular act).

COPYRIGHT IN NIGERIA

In Nigeria, when the British carted away our creative works before Nigeria’s independence, it may have seemed that our creativity had been stolen. The reality is that creativity is deeply rooted in the people and their culture and it will take more than carting away a few items to steal one’s national creativity. Although, creativity cannot be stolen, the works of a creative, however, can be stolen. These creative works involve the fusion of time, energy, resources and passion to develop. To protect these creative works, the legislature had to enact laws that will regulate and protect the works of human intellect.

This led to the passing into law of the 1970 Copyright Act. It is to be noted that in the opinion of many Nigerian copyright owners, this enactment did not provide adequate protection. Therefore, it culminated in the enactment of the current 1988 copyright Act, which has been amended twice to reflect the changing and dynamic nature of copyright.

The Nigerian Copyright Commission was inaugurated on 19 August, 1989. The commission is responsible for all copyright matters in Nigeria including the administration, regulation, enforcement, and prosecution under the Copyright Act. Through the several regulations that have been issued by the commission and the different strategies adopted, the Nigerian Copyright Commission has tremendously aided in the administration of copyright in Nigeria. It is hoped that the heightened convictions on copyright infringement will continue to serve as deterrence to perpetrators of copyright infringements.

Importantly, the future of copyright for Nigeria will, however, lie in the ability of Nigeria to strategically engage with the international community in domesticating legal instruments, and negotiating issues of interest for the development of Nigeria’s creative industries.

Modern nations now rely more on their intellectual property resources as key to the realization of their national desire. Indeed, for any nation to progress economically, it must not downplay the development of its intellectual resources. The only way to ensure the protection of original intellectual works is by tightening provisions for the safeguard of copyright products, and accommodating products derived from the rapidly growing technology in the world.

Copyright piracy has been recognized globally as constituting a serious threat to creative arts and creativity generally. The damaging effect of piracy is visible all around us; the warning zeal for creativity; the dearth of well-researched textbooks and reading materials in the education sector; the diminishing of the artistic and literal quality of our stage performance and the increasing colorless and uninspiring products in the visual arts. Expectedly, investors are wary and the younger generation is no longer encouraged to pursue careers in the arts and entertainment industry. We are all confronted by an attack on our culture and future as a people. We are faced with the reality of a decline in economic resources as a nation. It is in recognition of the importance of creative arts, intellectualism, and the negative and damaging effect of piracy that the Nigerian Copyright Commission (NCC) seeks to fight piracy to a halt. Considering the challenges still being witnessed in the industry, a lot still needs to be done in that regard.

THE WAY FORWARD

Having examined some of the shortcomings and challenges facing our copyright legal framework, it is evident that something urgent needs to be done to salvage the situation and this has to do with adopting significant measures which shall be considered under four major headings:

1. Legislative measures;
2.  Administrative measures;
3. Social measures; and
4. Judicial measures.

 LEGISLATIVE MEASURES

Separate legislative measures should be enacted to cater to the increasing number of new species of diverse innovations. In the process of enactment of these new legislative measures, wide consultations, especially with experts in the fields of information technology, copyright, and computer technology, should be conducted, to effectively acquire the technical knowledge that would expose the intricacies involved in copyright violations of digital technology. As a result, national agencies, like the National Broadcasting Commission (NBC)[9], should be recruited into this cause. This is because the NBC is charged with the responsibility of ensuring that any content on radio and television passes a minimum standard of acceptability. This means that those who plagiarize copyrights in the form of film, music, or any other form of creation that falls under the purview of the NBC will not be allowed to air.

The enactments should also create more regulatory bodies that would be charged with the responsibility of ensuring the enforcement of legislative measures and laws. Agreeably, Article 4 of the ACFTA Agreement 2018, also mandates state parties to cooperate on investment, intellectual property rights, and competition policies in fostering economic growth, even though negotiations are currently in place to create implementation mechanisms to ensure the protection of intellectual property. This is indeed one area Nigeria should be vested in, to ensure that it embraces international best practices geared towards achieving an effective copyright regime.

The Nigerian legislature should also domesticate the various international instruments (of course after due considerations and after streamlining the most beneficial to the Nigerian cause) on copyright protection of digital innovations in line with section 12 of the 1999 Constitution of the Federal Republic of Nigeria, as amended.

 ADMINISTRATIVE MEASURES

A good law without an effective administrative enforcement mechanism is an effort in futility. Consequently, because the enforcement of copyright remains the basis of the protection for the varied hybrid of digital and computer technologies, the Nigerian Copyright Commission should adopt adequate administrative measures for the protection of copyright works. The Nigerian government should work assiduously with various international organizations concerned with digital works like the Business Software Alliance as well as the market authorities and trade unions to ensure that any infringing copies of computer software and other innovations are confiscated and adequate reprisals meted out to all who contributed in the infringement.

 SOCIAL MEASURES

These measures encompass all those measures to be adopted that involve the populace. The foremost of these measures is enlightenment and awareness campaigns that will be taken down to the grass-root root level. This can be achieved through various commercial ringlets and advertisements in radio and television broadcasts in a way that a layman on the street would understand. Emphasis should equally be laid on the perils associated with the use of such pirated products as opposed to the benefits that accrue to the users of genuine software and digital works. The Nigerian Copyright Commission should also establish a social helpline that would enable an ordinary Nigerian to report seemingly cases of copyright infringement.

 JUDICIAL MEASURES

Owing to the convoluted nature of copyright, the federal government should set up an administrative tribunal or an arbitration panel, or even a separate court that would be saddled with the responsibility of discharging urgent issues relating to copyright infringement. Arbitration should also be seriously considered as it would allow for faster dispensation of justice, and the invitation of experts to arbitrate in specific areas of copyright that require specialized knowledge.

CONCLUSION

Globally, the exploitation of intellectual property rights such as copyrights remain a big source of revenue for individuals and governments alike. To ensure the protection of the numerous economic and other associated benefits therein, the government and relevant stakeholders must rise to the occasion by doing the needful, as recommended above.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN.

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Corporate Law and Commercial Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

COUNTRIBUTOR:  Romeo Osogworume

Romeo is a member of the Corporate and Commercial Team at Omaplex Law Firm. He also holds a commendable legal expertise in intellectual property law.

 He can be reached at romeo.osogworume@omaplex.com.ng

[1] Uspto, ‘intellectual property and the U.S economy’ (2017) Uspto <https://www.uspto.gov/ip-policy/economic> accessed 24 January 2022

[2] WIPO, ‘Understanding Industrial property’ (2016) 3(1) WIPO <https://www.wipo.int/publications/;en/details.jsp?id=4080 > accessed 17 January 2022

[3] Ethan Drone, ‘A Treatise on the Law of Property in Intellectual Productions’, (2nd ed. London, Butterworths publishers, 1992) P.44.

[4] Bryan.A. Garner, Black’s Law Dictionary, (8th edition: West Publishers: N.Y.), p.361.

[5] Wikipedia the free encyclopaedia “Meaning of Copyright” < http://www.wikipedia.org.wiki-copyright> Accessed 18 January, 2022.

[6] [1913] 39 TLR 570 at 571.

[7] 24 [1857] Mac G Cop 117 25.

[8] [1914] 3 K. & J. 703

[9] Established by Decree No. 38 of 1992