Introduction
Over the years, Nigeria’s copyright regime has been fraught with numerous challenges ranging from enforcement of existing laws to the application of outdated provisions to modern-day situations. Despite the challenges, copyright remains an important part of intellectual property rights and as such the positive aspects that an effective copyright regime will have on the growth of the creative economy can no longer be ignored.
In view of the urgent need to review the existing copyright law, Former President Muhammadu Buhari assented to the Copyright Bill 2022 on March 17, 2023 thus giving rise to the Copyright Act 2022.
A cursory overview of Section 1 of the Act shows that it seeks to address the aforementioned challenges by protecting intellectual property rights and ensuring the following:
- That authors are rewarded and recognised for their work;
- To guarantee access to creative works by providing appropriate limitations and exceptions;
- To aid Nigeria’s compliance with international copyright treaties and conventions; and
- To improve the administrative, regulatory and enforcement capacity of the Nigerian Copyright commission.
Changes introduced by the Copyright Act 2022
- Rights in pre-existing material or data in a compilation
Section 2(5) of the Act states that copyright in a compilation does not confer any exclusive rights in pre-existing material or data. This was not previously stated in the former Act.
- Recognition given to wired and wireless means of publicly distributing copyrighted material
The Copyright Act now recognises wired and wireless means of publicly distributing copyrighted material. This brings the Act in line with current realities of digital distribution. An example of this can be found in Section 9(i) where owners of copyright in literary or musical work have the exclusive right to make the work available and accessible to the public via wired or wireless means.
- Objection to false attribution
The Act introduces an additional moral right for authors. By virtue of Section 14(2) a person has the right to object to false attribution of work.
- Determination of distribution of remuneration for any broadcast of the sound recording by the Copyright Commission
Section 15 of the Act provides for the right of a performer and a copyright owner to equitable remuneration for broadcasting of sound recordings that had been published for commercial purposes. Distribution of remuneration is expected to be governed by the terms of agreement existing between users of the sound recording on one hand and the performer and the copyright owner on the other hand. However, the Act now permits the Copyright Commission to determine distribution of remuneration in the absence of any agreement to that effect.
- Right to share in proceeds of sale
Section 17 of the Act now expressly provides for the right of authors of artistic works, manuscripts of literary works or of musical compositions to share in proceeds of sale by public auction or through a dealer after the first transfer by the author. This gives authors of copyrighted works in Nigeria to now benefit from resales.
- Reduction in duration of copyright in works of government, state authorities and international bodies
Section 19(1)(b) has reduced the duration of copyright in works of government, state authorities and international bodies from seventy (70) years to fifty (50) years from publication or creation.
- Duration of copyright in audiovisual works, photographs and sound recordings that have not been made public
Section 19(1)(c) and (d) of the Act sets the duration of copyright in audiovisual works, photographs and sound recordings that have not been made public to fifty (50) years after creation.
- Factors to consider in determining fair dealing
The Act now clearly states factors to consider in determining fair dealing in respect of literary or musical works, artistic works, audiovisual works, sound recordings and broadcasts. Fair dealing covers purposes such as:
- Private use;
- Parody, satire, pastiche, or caricature;
- Non-commercial research and private study;
- Criticism, review or the reporting of current events.
By virtue of Section 20(1), the following factors have to be considered in determining if use of a work amounts to fair dealing:
- Purpose and character of its usage,
- Nature of the work,
- Amount and substantiality of the portion used in relation to the work as a whole, and
- Effect of the use upon the potential market or value of the work.
- Special exceptions for blind, visually impaired, or otherwise print disabled persons
The Act in Section 26 promotes accessibility of copyrighted works by introducing special exceptions to copyright for blind, visually impaired, or otherwise print-disabled persons. An authorised entity is permitted to make or procure an accessible format copy of a work or subject matter and supply the copy to beneficiary persons by any means, including non-profit lending, or electronic communication by wire or wireless means without first obtaining the permission of the owner of the copyright. It must be noted that such exception is not for commercial purposes and the accessible format is for the exclusive use of the beneficiary.
- Grant of compulsory licence for public interest or rectification of abuse of dominant market position
Section 35 of the Act now provides for the grant of compulsory licences by the Copyright Commission for public interest or the rectification of abuse of dominant market position. The Commission would take into consideration certain factors including the use of the work which shall be non-exclusive and non-assignable and shall be exclusively for the Nigerian domestic market. A proposed user must have made reasonable effort yet failed to obtain permission from the owner of copyright on reasonable commercial terms and conditions.
The authorisation granted by the Commission can be withdrawn once the circumstances that gave rise to the grant no longer exist. The need for an attempt to be made to secure the permission of the copyright owner may be dispensed with in the event of national emergency or other circumstances of extreme urgency. Dissatisfied parties can apply to the Federal High Court for a review.
- Disputes arising from exercise of rights under the Act are now arbitrable
By virtue of Section 37(7) any disputes arising from the exercise of rights under the Act are now a subject of arbitration and such disputes may be resolved by any means agreed to by the parties to the dispute.
- Increase in fines and terms of imprisonment
Throughout the Act, the penalties attached to various forms of infringement have been increased to reflect current fiscal realities. Terms of imprisonment ascribed to copyright infringement have also been amended.
- Penalisation of circumvention of technological protection measures
Circumvention of technological protection measures protecting access to copyrighted work has now been penalised by Section 50 of the Act. This includes manufacturing, importing, selling, offering for sale any technology, product, service, device, or part for the purpose of circumvention of copyright protection.
The Act defines a technological protection measure as “a technology, device, product or component incorporated into the work which is designed to effectively prevent or inhibit the infringement of any copyright or related right”.
- Notice for restriction on importation of infringing goods to be given to the Director-General of the Copyright Commission
By virtue of Section 53, copyright owners are now to give notice to the Director-General of the Commission who will then notify the Nigerian Customs Service. Under the old Act, notice was given directly to the Nigerian Customs Service.
- Provisions relating to online content
One of the notable changes introduced by the Act are its provisions relating to online content as contained in Part VII. The Act now covers notice to take down which gives copyright owners the right to issue notice of infringement to relevant service providers requesting them to take down or disable access to any infringing content or link to the content, hosted on its system or network.
The Act sets out a procedure to be followed by service providers for the suspension of accounts found to be repeat infringers. Misrepresentation of infringement ascribes liability in damages for injuries suffered by the person as a result of the service provider relying on such misrepresentation.
The Commission has the power to block or disable access to any content, link or website hosted on a system or network, which it reasonably believes to infringe copyright.
- Changes to Performers’ rights
The Act has introduced a number of changes to performers’ rights. Section 63 of the Act now gives performers the exclusive right to control acts of:
- fixation of unfixed performance;
- distribution of such fixation or copies to the public by sale or other transfer of ownership; and
- renting of fixation and making available the fixed performance to the public via wired or wireless means.
Duration of copyright in performance is set at fifty (50) years from the end of the year when the performance was first fixed.[1]
A performance is protected if on the date of the performance, at least one of the performers is a citizen of or is habitually resident in Nigeria, or the performance takes place or is first fixed in Nigeria or in a country that is a party to an international treaty/agreement to which Nigeria is also a party.[2]
Section 65 of the Act now provides for a presumed consent on the part of a performer to rebroadcast their performance, fix and reproduce the performance for broadcasting purposes.
- Expansion of the powers of the Copyright Commission to include dispute settlement
By virtue of Section 78(1)(c) of the Act, the Copyright Commission now has the power to investigate and redress cases of infringement and settle disputes that have not been specifically reserved for settlement.
- Amendment to the membership of the Governing Board of the Nigerian Copyright Commission
Section 79 of the Act replaces the representative of the Ministry of Education with a representative of Federal Ministry responsible for Culture.
Tenures of the Chairman and other members of the Board who are not ex-officio members is now expressly provided under Section 80 of the Act as follows:
- For a term of four (4) years in the first instance and may be re-appointed for a further term of four years and no more; and
- On such terms and conditions as may be specified in their letters of appointment.
- Dispute Resolution Panel
Section 90 of the Act gives the Commission the power to constitute a Dispute Resolution Panel to resolve any dispute arising from royalty payments, licence terms, any matter in respect of which a determination by the Commission is required under the Act.
- Power to make regulations
The Act has given the Commission the power to make regulations with the consent of the Minister.[3] Prior to this, it was the Minister who made regulations.[4]
- Execution against the property of the Commission
Under the old Act, there was a blanket restriction on execution against the property of the Commission in any action or suit against the Commission. However, Section 100 of the Act now requires that at least three (3) months’ notice of intention to execute or attach property must be given to the Commission before execution.
- Amendments to the Interpretation Section
The Act has also introduced amendments to the interpretation section, namely:
- The definition of cinematograph is now subsumed by audiovisual work.
- Broadcasting authority is now broadcasting organization.
- Collective work has been added to mean “a collection of literary or artistic works, which by reason of the selection and arrangement of their contents, constitute intellectual creations and as such protected without prejudice to the copyright in each of the works forming part of such collection”.
- The definition of “communication to the public” has been expanded to reflect modern technology by being defined as “making a work or a performance available to the public by wire or wireless means in such a way that members of the public may access the work or performance from a place and at a time individually chosen by them”.
- The term “copy” now includes digital forms.
The definition of service provider has been included among the terms defined and it refers to “a provider of online services or network access, including operators of such facilities, and any entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received”.
Conclusion
From the foregoing, it can be noted that part of the key reforms introduced by the Copyright Act 2022 seek to address issues brought about by the potentials of technological advancement.
The emergence of various digital platforms has played a significant role in copyright infringement, however, the Copyright Act 2022 exemplifies a commitment towards fostering an enabling environment for creative work in Nigeria. It is hoped that these reforms will be accompanied by much needed efforts in enforcement.
Footnote:
[1] Section 70 of the Act.
[2] Section 64 of the Act.
[3] Section 97 of the Act.
[4] Section 45, Copyright Act, Cap C28 Laws of the Federation of Nigeria 2004