In this note we discuss the Nigerian Copyright Bill 2020 (‘the Bill’). There is, at this stage, no indication when the Bill will become law.
The Bill represents a significant update on the existing Nigerian legislation. Besides the general copyright provisions the Bill deals with anti-piracy measures, online content, performer’s rights, the Nigerian Copyright Commission, a register of works, and collective management organisations. All of these aspects are discussed in this note.
GENERAL COPYRIGHT PROVISIONS
Works eligible for copyright:
Section 2 provides that there will be copyright in:
- Literary works;
- Musical works;
- Artistic works;
- Audio-visual works;
- Sound recordings;
These terms are all defined in Section 108.
Exclusions from copyright
Section 3 excludes from copyright protection:
- Ideas, procedures, processes, concepts;
- Legislative or administrative texts;
- Official state symbols and insignia.
Entitlement to copyright
Sections 6 and 8 confer copyright to works where:
- the author is a citizen or habitual resident of, or a corporation incorporated in, Nigeria or a Berne Convention country;
- they were first published in, made in (in the case of sound recordings) or transmitted from (in the case of broadcasts) Nigeria.
Nature of the rights
These are set out in Sections 9-13. One author’s right that appears across the board is the exclusive right to make the work available to the public by wire or wireless means in such a way that members of the public can access the work from a place and at a time independently chosen by them.
Section 14 deals with these – both claiming authorship and objecting to distortions.
Right to remuneration for the broadcasting of sound recordings.
This is provided for in Section 15.
Right to share in proceeds of sale.
Section 17 deals with this and it applies to graphic works, 3-D works and manuscripts. The author retains a right to share in proceeds notwithstanding any assignment.
Section 19 provides that the copyright term is, in the case of:
- Literary, musical or artistic works – 70 years from the end of the year when the author dies.
- Audio-visual works and photographs – 50 years from the end of the year of the work’s creation.
- Sound recordings – 50 years from the end of the year when the recording was made.
- Broadcasts – 50 years from the end of the year of first broadcast.
There are fair-dealing exceptions relating to private use, parody, research, criticism, review and reporting current events – see Sections 20-26.
There are also many other specific exceptions, dealing with, inter alia: the reproduction or adaptation of computer programs; the use of material for tuition or examination; the recording of broadcasts by educational establishments; the use of works by libraries and museums; the use of works by the visually impaired.
Section 27 provides that the making of a sound recording of a musical work does not infringe copyright in that work if a similar adaptation of the musical work has previously been made or imported into Nigeria with the copyright owner’s consent.
Section 29 provides that the author is the first owner of the copyright. There are, however, exceptions relating to works created under the direction of a government body or international organisation, and photos that have been commissioned.
Assignments and licences
Both an assignment and an exclusive licence must be in writing, see Section 30.
Compulsory licences play a big role. Section 31 provides that compulsory licences can be granted by the Commission (more on this entity later) for purposes of teaching, scholarship or research. Section 32 states that compulsory licences can also be sought for other reasons, for example where a literary or artistic work is not made available in Nigeria. Section 35 deals with compulsory licences in the public interest.
Section 36 says that this occurs, inter alia, when an unauthorised person:
- violates any of the exclusive rights of the copyright owner;
- makes or has in his possession equipment used for making infringing copies;
- allows a place of public entertainment to be used for infringing.
Action for infringement
This is dealt with in Section 37. The copyright owner, assignee or exclusive licensee can bring an infringement action and an injunction, damages, accounts of profits will be available. If the infringer was not aware or had no reasonable grounds for thinking that copyright subsisted, no damages will be granted, although an account of profits is possible. Additional damages can be awarded in the case of a particularly flagrant infringement.
Section 38 provides that an ex parte order can be granted to seize infringing copies and equipment used to make infringing copies.
Section 43 says that there will be certain presumptions in infringement cases, for example:
- Copyright subsists in the work;
- The name appearing on the work is the name of the author;
- If the author is dead, the work is original.
Criminal offences for infringement
These are set out in Sections 44-47. Fines and terms of imprisonment are possible.
These provisions are all new.
Duty to keep records
Section 48 provides that any publisher, printer, producer, manufacturer and aggregator of a work that enjoys copyright must keep records of the work including the name of the author and the quantity produced. A failure to keep such records (or the creation of false records) is a criminal offence, and it can be punished with a fine of at least N 100,000 or imprisonment of at least one year.
Further anti-piracy measures
- Section 49, which creates offences relating to anti-piracy devices, with substantial fines and prison terms of up to three years.
- Section 50, which deals with the circumvention of technological protection measures.
- Section 51, where there are provisions regarding the falsification, alteration or removal of rights-management information – the remedies available here include civil claims and criminal offences.
- Section 53, where there are restrictions on the importation of infringing goods: these involve the copyright owner giving notice to the Director General; the Director General giving notice to the Nigerian Customs Service; the Nigerian Customs Service intercepting the infringing works; and finally the rights owner or the Commission taking action if appropriate.
These provisions are also new.
In terms of Sections 54 and 55:
- A copyright owner whose copyright has been infringed can issue a notice of infringement to the service provider seeking a take-down of, or disabling of access to, the infringing content. The notice must include prescribed information such as: a physical or electronic signature; identification of the work infringed; identification of what has been infringed; contact details of the infringing party.
- The service provider informs the subscriber, who has 48 hours to justify keeping the content. If the subscriber fails to do so access is disabled and the complainant (copyright holder) is notified. If the subscriber does provide justification the service provider informs the complainant (copyright owner) of the decision not to take-down.
- The service provider may resume access or restore content or a link that has been removed on receipt of a counter-notice from the subscriber, one that was copied to the copyright owner and not responded to within 10 days.
- The service provider must take reasonable steps to ensure that downloaded content that has been removed is not reloaded.
- A dissatisfied party can refer a matter to the Commission for determination.
- A service provider who fails to comply with a take-down request shall be liable to the same extent as the party that placed the content. Penalties are harsh – a fine of N 2,000,000, imprisonment of five years.
Suspension of accounts for repeat infringers
Section 56 makes provision for the suspension by a service provider of the account of a subscriber who is a repeat infringer. There is also provision for a challenge by the subscriber and for a referral of the matter to the Commission if it cannot be resolved.
Section 57 provides that a party who knowingly misrepresents that material or activity is infringing, or that material was removed or disabled by mistake or misidentification, is liable for damages.
No liability for service provider
Section 58 says that a service provider will not be liable for damages resulting from storage of material if it:
- had no knowledge that the material was infringing;
- did not receive any financial benefit from the infringing activity;
- responds expeditiously to a removal request;
- complies with the procedure for suspension of accounts set out in Section 54.
Section 59 provides that a service provider will not be liable for damages for infringement of copyright where it referred or linked users to an online location containing information-location tools if it:
- does not have actual knowledge of the infringement;
- does not receive any financial benefit from the infringing activity;
- responds to a notification of infringement as set out in Section 54.
Identification of infringer
A copyright owner can apply to court for an order requiring a service provider to identify an alleged infringer – Section 60.
Blocking access to online content
According to Section 61 the Commission has a general power to block or disable access to any content, link or website which it reasonably believes infringes copyright.
Section 62 says that the limitations to service provider-liability set out above apply only to:
- the neutral, automatic and passive activities of a service provider, and
- service providers who do not take an active role, intervene or participate in the making of content.
Section 63 defines a performance to include a dramatic performance, a musical performance and a reading or recitation of a literary work.
Performer’s rights comprise the exclusive right to control in relation to a performance:
- Distribution of a fixation;
- Rental of a fixation;
- Making the fixation available by wire or wireless means.
Section 64 states that the rights granted in the Act apply in respect of any performance that:
- takes place in, or
- is broadcast without fixation in, or
- is first fixed in,
Nigeria or any country that grants similar rights to performances.
Presumption of consent
According to Section 65 a performer’s consent to broadcasting a performance is deemed to include consent to re-broadcasting unless there is a clear agreement to the contrary.
Section 66 provides that the rights to be identified as the performer and to object to distortions apply. These rights are not transmissible during the lifetime of the performer, although they are on death.
Exceptions to performer’s rights
Section 68 provides that a performance, fixation of a performance, or a reproduction of a fixation can be used without consent for various purposes such as:
- Judicial, legislative or administrative proceedings;
- The demonstration of equipment by a licensed dealer;
- Reporting current events;
- The making of an ephemeral recording by a broadcaster, although it must be preserved for no more than 30 days;
- Reproduction for the benefit of people with disabilities;
- Teaching purposes.
Transfer of rights
Section 30 applies, so assignments need to be in writing.
Section 70 states that the term is 50 years from end of the year that the performance took place.
According to Section 71 the right is infringed by, inter alia, making a recording, broadcasting, performing in public, importing a recording, and selling a recording.
Action for infringement
Section 72 allows the performer to seek an injunction, damages and an account of profits are available.
Section 73 makes infringement a criminal offence, provided that there was criminal intention. A fine of up to N 100,000 and/or imprisonment for at least one year is possible.
Nigerian Copyright Commission
Section 77 establishes the Nigerian Copyright Commission (the Commission), which is responsible for all aspects of copyright including:
- creating and maintaining a database of copyright works;
- prosecuting complaints;
- regulating and implementing measures to promote the protection of copyright.
Section 83 provides that the Commission will have a Director General (DG).
Section 86 grants the DG the power to appoint inspectors – inspectors can enter premises where infringing activity is thought to be taking place, arrest suspects, and seize goods.
REGISTRATION OF WORKS
A few important points:
- Section 87 requires the Commission to establish a Register of Works.
- Any work eligible for copyright can be entered on the Register upon application by the owner, licensee or assignee. It is important to remember that registration does not confer copyright.
- The Register is prima facie proof of the particulars recorded. A certified extract will be admissible as evidence in court.
- Making a false entry in the Register is an offence punishable by a fine of N 100,000 or imprisonment for one year.
COLLECTIVE MANAGEMENT ORGANISATIONS
There is provision for Collective Management Organisations, see Section 88.
Updated copyright legislation is long overdue. We hope that it will not be too long before the Bill becomes law.