BRIEFING NOTE: REVIEW OF THE BILL FOR AN ACT TO REPEAL THE COPYRIGHT ACT CAP C28 LFN 2004 AND TO RE-ENACT THE COPYRIGHT ACT 2021 AND FOR MATTERS CONNECTED THEREWITH, 2021 (SB:688)

A.   Features of the Bill:

Short Title:

Copyright Act Repeal and Re-enactment Bill, 2021.

Principal Purpose:

The bill seeks to repeal the Copyright Act Cap C28 2004 and Re-enact the Copyright Act 2021 for a holistic review of the policy and legal framework for copyright protection in Nigeria.

Application:

The Federal Republic of Nigeria.

No. of Parts:

5

No. of Sections:

73

No. of Schedules:

5

Sponsor:

Senator Mukhail Adetokunbo Abiru

B.   Summary of Major Provisions of the Bill and Remarks:

S/N

Relevant Provisions

Synopsis of the Bill

Remarks

PART 1: COPYRIGHT

1.

Section 1: Works eligible to Copyright

Subsection 1 of this section provides that the following are eligible for copyright:

a.    Literary works

b.    Musical works

c.     Artistic works

d.    Audiovisual works

e.     Sound recordings; and

f.      Broadcasts

Subsection 2 provides for the conditions to which a literary, musical or artistic work shall be eligible for copyright.

Subsection 3 provides that an artistic work shall not be eligible for copyright if at the time of its creation, the author intended to use it as a model or pattern to be multiplied by any industrial process.

Subsection 5&6 state that eligibility under the Bill shall not be subject to any formality and copyright protects any eligible work immediately it is created.

The Bill specifically identifies the category of works eligible to be protected against copyright.

The Bill states the exception to the rule of eligibility for copyright which is if the work was created for the specific purpose of being re-created for industrial purposes. This is important to mitigate ridiculous copyright claims.

The Bill emphasizes that immediately a work is created and does not fall within any exception[1], then it is automatically protected by copyright. There need not be any specific registration to be protected.

2.

Section 2: Copyright by virtue of nationality or domicile

Section 2(1) Copyright shall be conferred on every work eligible for copyright of which the author or, in case of a work of joint authorship, any of the authors is at the time when the work is made, a qualified person, that is:

i.      An individual who is a citizen of, or is domiciled in Nigeria or

ii.     A body corporate incorporated by or under the laws of Nigeria.

Section 2(4) provides that in the case of a work of joint authorship, a reference to the death of the author made in the first schedule shall be taken to refer to the author who dies last.

This section makes all work made by a citizen or a person who lives in Nigeria or even a company duly incorporated, eligible for copyright.

This means that the copyright for a joint work shall only cease when the last author dies whether or not he is covered by section 2(1).

3.

Section 3: Copyright by reference to Country of origin.

Section 3 (1) provides that Copyright shall be conferred by this section on every work, other than a broadcast, which is eligible for copyright and which (a) being a literary, musical or artistic work or an audiovisual works, is first published in Nigeria or (b) being a sound recording, is made in Nigeria, and which has not been the subject of copyright by section 2 of the Bill.

 Literary, musical, artistic and audiovisual works made first published or made in Nigeria are eligible for copyright protection.

4.

Section 4: Copyright in works of Government, State Authorities and International Bodies

This section provides that copyright shall be conferred by this section on every work which is eligible for copyright and is made by or under the direction or control of the Government, a State authority, or a prescribed international body.

The eligibility for copyright extends to works which have been made under the direction of the government, state or international body duly authorized.

5.

Section 5 – Copyright by reference to International Agreements.

This section confers copyright on every work if:

(a)   on the date of its first publication at least one of the authors is (i) a Citizen of or domiciled in Nigeria; or (ii) a body corporate established by or under the laws of, a country that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party.

(b)   the work is first published (i) in a country which is a party to an obligation in a treaty or other international agreement to which Nigeria is a party; (ii) by the UN or any of its specialized agencies; (iii) by the Organisation of African Unity; or (iv) by the Economic Community of West African States; v) if the work qualifies as a work emanating from any of the countries listed in the 1972 Copyright (Reciprocal Extension) Order

With respect to works created outside Nigeria, such works shall be eligible to copyright if it was created in such a country which is a party to a treaty or international agreement to which Nigeria is a party. The Bill makes an innovation to the existing Copyright Act by conferring copyright on every work emanating from any of the countries listed in the 1972 Copyright (Reciprocal Extension) Order.

6.

Section 6 – Nature of Copy Right in Literary, Artistic, Musical and Audiovisual Works

This section provides that subject to the exceptions in the second schedule, copyright in a work shall be the exclusive right to do or authorize the reproduction, publishing, performing in public, produce, make audiovisuals, distribute, broadcast, communicate to the public, etc.

Section 6(3) provides that copyright extends to architecture and rights to control the erection of any building which reproduces the whole or substantial part of the work either in its original form or any form recognizably derived from the original, but not the right to control the reconstruction the same style as the original of a building of a building to which the copyright relates.

This section defines the nature of copyright and what works are eligible to be protected. The Bill makes work available to the public by wire, wireless or online means in such a way that members of the public are able to access the work from a place and at a time individually chosen by them subject to copyright. This is a new addition to the provisions of the Copyright Act.  

7.

Sections 7 & 8 – Nature of copyright in sound recordings and broadcast.

These sections subject to the exceptions in the second schedule[2], cover copyright in a sound recording and broadcast, and the exclusive right to control in Nigeria, the production, broadcasting, reproduction, communication to the public, distribution for commercial or rental purposes.

8.

Section 10 – First ownership of copyright

(1) Copyrights conferred by section 2 and 3 of the Bill shall vest initially in the author.

(2) Notwithstanding subsection (1) of this section, where a person Commissions the taking of a photograph, or the painting or drawing of a portrait or the making of an audiovisual work, the person who Commissioned the photograph, portrait or audiovisual work shall unless there is a written agreement to the contrary, have:

(a) a non-exclusive license to exploit the photograph, portrait or audiovisual work and

(b) a right to restrain the publication, exhibition, communication and distribution of the photograph, portrait or audiovisual work to the public.

(3) Notwithstanding subsection (6) of section 11 of the Bill where a work-

(a) is Commissioned by a person who is not the author’s employer under a contract of service or apprenticeship; or

(b) not having been so Commissioned, is made in the course of the authors employment, the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under the contract.

(4) Where a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication shall, in the absence of any agreement to the contrary, be the first owner of copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical; or to the reproduction of the work for the purpose of its being so published; but in all other aspects, the author shall be the first owner of the copyright in the work.

Section 10 (6) provides that where a person, in the absence of an agreement to the contrary, creates a work under the direction of the government, state or international organization, the copyright shall vest only in the government, state or international organization.

This section describes the right of ownership in a copyright as it applies to the different works protected.

Subsection (2) of this section provides that the copyright shall vest in the person who Commissions the taking of a portrait or the making of an audiovisual work. However, where the Commission of the portrait or the audiovisual work is not done by the author’s employer under a contract of service or apprenticeship, the copyright shall belong to the author.

Subsection (4) of this section seems to suggest that the first owner of a literary, artistic or musical work where the author is under employment by the proprietor of a newspaper, magazine or similar periodical shall be the proprietor. However, the language of the Bill is not clear in this regard.

9.

Section 11 – Assignment and Licensee

Subsection 1 provides that subject to the provisions of this section, copyright shall be transmissible by assignment, by testamentary disposition or by operation of law, as movable property pursuant to Chapter 4 of the Nigerian Constitution.

Section 11(3) states that no assignment of copyright and no exclusive license to do an act, the doing of which is controlled by copyright, shall have effect unless it is in writing.

Section 11(4) provides that a non-exclusive license to do an act, the doing of which is controlled by copyright, may be written or oral, or may be inferred from conduct.

Section 11(7) provides that an assignment, license or testamentary disposition may be effectively granted or made in respect of a future work or an existing work in which copyright does not yet subsist; and the prospective copyright in any such work shall be transmissible by operation of law as movable property.

This section provides for legitimate ways of transferring the rights in a copyright which include by assignment, by testamentary disposition or by operation of law, as movable property pursuant to Chapter 4 of the Nigerian Constitution.

Of importance is the fact that exclusive licence to copyright by way of an assignment needs to be in writing while non-exclusive assignments need not be in writing.

10.

Section 13 – Right to share in the proceeds of sale

 Section 13 provides that notwithstanding any assignment or sale of the original work, the authors of graphic works, three-dimensional works and manuscripts shall have an inalienable right to share in the proceeds of any sale of that work or manuscript by public auction or through a dealer whatever the method used by the latter to carry out the operation.

This section establishes that an author has a right to a share in the proceeds of the sale of his work through any means of sale.

11.

Section 14 – Duty to keep record of work produced.

This section provides that any person carrying on the business of production or reproduction of works including publishers, printers, producers, manufacturers, and aggregators of works in which copyright subsists shall keep a record of all works dealt with in the course of their business, showing the name of the author, title of the work, date of use/production, quantity of work used, any other information prescribed by the Commission. 

By virtue of this section any person that does the production or reproduction of a work has the duty to keep copies of such work which would include certain necessary information. The Bill does not prescribe the form which this record will be in.

12.

Section 15 – Infringement of copyright

Section 15 (1) provides for circumstances in which copyright could be infringed upon.

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 under sections 6, 7, and 8 of the Bill; (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 the Bill; (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 a performance in the public of the work, where the performance constitutes 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. (h) permits within its premises, the reproduction including photocopying, scanning and dubbing, of copyright material.   

Section 15 (2) however provides for the exemptions to this. It provides that where any work in which copyright subsists, or a reproduction of any such works, 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, the copyright in the work is not infringed by the making or the supplying to any person of any reproduction of the work in pursuance of that Act or law.

 By virtue of this section, we get to see each ground that may result in the infringement of copyright. The exemptions shall apply to the reproduction of works stored in the National Archives or works comprised in the public records of a State.

13.

Section 16 – Action for exemption

Section 16 (1) provides that any infringement of copyright is actionable at the suit of the owner, assignee or an exclusive licensee of the copyright, in the Federal High Court.

(3)  provides that where a defendant committed an infringement but was not aware and had no reasonable ground for suspecting that copyright subsisted in the work, the plaintiff shall not be entitled to damages

This section establishes that infringement of copyright is actionable and if the defendant was by no means aware of the existence of the copyright, then the claimant shall not be awarded damages

14.

Section 17 – Limitation to the right of action

This section provides that no Action for the infringement of copyright shall be commenced or maintained by any person –

a)    carrying on the business of negotiating and granting licenses

b)    collecting and distributing royalties in respect of copyright works

This section talks about certain categories of persons that are not allowed to commence an action for infringement. This is in line with provisions of the existing Copyright Act. It should be noted that Section 16 of the Bill provides for the categories of persons who can sue which are the owner, assignee or an exclusive licensee of the copyright.

15.

Section 18 – Conversion rights

By virtue of this section any instrument or work whatsoever used or is intended to be used to cause an infringement is deemed to be the property of the owner.

According to this section any and all infringing copies of a work becomes that of the original author.

16.

Section 19 – Infringement actionable as breach of statutory duty

 By virtue of this section, it is understood that an infringement of the rights conferred by sections 10 and 12 (first ownership of copyright and right to claim authorship) of the Bill is actionable as a breach of statutory duty owed to the person entitled to the right.

This section states that a breach of sections 10 and 12 is actionable as a breach of statutory duty owed to the person entitled to the right and such person is entitled to an award of damages etc.

17.

Section 21 – Offence by bodies corporate

 Section 21 (1) provides that where an offence under the Bill was committed by a body corporate, the body corporate and every person who at the time the offence was committed oversaw the business of the body corporate shall be deemed guilty and liable to be proceeded against and punished accordingly.

(2) provides that notwithstanding subsection 1 of this section if the offence was committed with the consent or convenience of any director, manager, secretary or other officer of the body corporate such person shall be deemed guilty and liable to be proceeded against and punished accordingly.

Where a corporate body commits an offence, officers and managers of the corporate body may also be held guilty of the offence.

18.

Section 22 – Penalties for failure to keep records or making Entries

Section 22 (1) provides that any person who –

a)    fails to keep the record required under section 14 of all works dealt with in the course of their business which shall show the name of the author, the title of the work, date of use or production, the quantity of the work used or produced, and any other information as may be prescribed by the Commission.

b)    makes or causes to be made false entry in such record.

c)     produces or tenders or causes to be produced or tendered as evidence any false entry knowing same to be false, shall be guilty of an offence under this section and be liable on conviction to a fine of not less than N1,000,000.00.

(2) by virtue of this subsection a copyright owner or any person having an interest in a work shall upon written demand, be furnished with the information relating to the work as contained in the record required to be kept under this section.

This section provides for the penalty of breaching the provisions of section 14 of the Bill which mandates any person carrying on the business of production or reproduction of works to keep a record of all works dealt with in the course of their business.

19.

Section 23 – Civil and criminal actions may be simultaneous

Notwithstanding the provisions of any law to the contrary, it shall be permissible for both criminal and civil actions to be taken simultaneously in respect of the same infringement under the Bill.

Civil and criminal action can be brought together as per this section.

20.

Section 24 – order for inspection and seizure

This section provides that where an ex parte application is made to the court supported by affidavit, with reasonable cause to suspect that an infringement has or will occur. The court can make an order for the applicant to enter the house or premises of the respondent under certain conditions accompanied by a police officer or a Copyright Inspector[3] and seize and inspect any infringing copy or contrivance and any documents in the custody or under the control of the defendant relating to the action.

By virtue of this section the court can give an order for inspection or seizure if an application is made, and certain grounds set out by this section must be present before an order for inspection and seizure is made.

PART II: ONLINE AND OTHER ANTI – PIRACY MEASURES

21.

Section 25: Anti-piracy devices

Subsection 1 provides that the Commission with the consent of the Minister shall have the power to prescribe any design, label, mark, impression, or any other anti-piracy device for use on, in, or in connection with any work in which copyright subsists.

Subsection 2 provides that any person who sells, rents, hires; or offers for sale, rent, or hire any work in contravention of Subsection 1 above commits a crime and shall be liable on conviction to a fine of not less than N500,000 or to imprisonment for a term of not less than 3 years or to both such fine and imprisonment.

Subsection 3 provides that any person who without the permission of the Commission imports into Nigeria; or has in their possession any machine, instrument or other contrivance intended for use in the production of the anti-piracy device commits an offence and is liable on conviction to a fine of not less than N1,000,000 or to imprisonment for a term of not less than 5 years, or to both such fine and imprisonment.

Subsection 4 provides that any person who without the permission of the Commission is in possession of; or reproduces; or counterfeits any anti-piracy device prescribed under this section commits an offence and is liable on conviction to a fine of not less than N200,000 or to imprisonment for a term of not less than 2 years, or to both such fine and imprisonment.

Subsection 5 provides that the Commission shall have power, with the consent of the Minister to make regulations specifying the conditions necessary to give effect to the purpose of this section.

This Section provides that only the Commission with the consent of the Minister shall prescribe any anti-piracy device. The Section further provides for offences where the above directive is not complied with and the penalties for non-compliance.

This Bill provides for stiffer sanctions for similar offences when compared with the Copyright Act. Whereas the Copyright Act imposes fines of N100,000, N500,000 and N50,000 respectively, the Bill imposes fines of N500,000, N1,000,000 and N200,000 respectively.

The Section further provides that the Commission, with the consent of the Minister shall make any further regulations as necessary to ensure that the provisions of the Section are enforceable.

22.

Section 26: Circumvention of technological protection measures

Subsection 1 provides that subject to the provisions of Part II of the Bill, no person shall knowingly circumvent a technological protection measure that effectively protects a work under this Bill.

Subsection 2 provides that no person shall manufacture, import, sell, offer to the public, provide, or otherwise traffic in any technology, product, service, device or part thereof that is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a work under this Bill; or has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a work under this Bill.

Subsection 8 provides that the provision of this section shall not affect the exercise of any exception provided in this Bill as it relates to the work in respect of which the technological protection measure is applied.

The section provides against circumvention of a technical protective measure. Circumvention is defined in the Bill as avoiding, bypassing, removing, deactivating, decrypting or otherwise impairing a technological measure.

The section however requires the mental element to be present before one can be said to have circumvented a technological protection measure. Thus, where one unknowingly circumvents a technological protection measure, one shall not be guilty of having committed an offence.

23.

Section 27: Falsification, alteration or removal of rights management information

Subsection 1 provides that no person shall knowingly and with intent to induce, enable, facilitate or conceal infringement provide rights management information that is false.

Subsection 2 provides that no person shall without the authority of the copyright owner: (a) knowingly remove or alter any rights management information, (b) sell, offer for sale, distribute, import for distribution, broadcast or communicate to the public, works or copies of works knowing that rights management information has been removed or altered without authority, knowing, or having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this Bill.

This section also provides that the concealment of rights management information can only be said to have been done when the person carried it out knowingly.

24.

Section 28: Actions for circumvention of technological protection measures and rights management information

Subsection 1 provides that any person whose right is affected by acts under this Bill may bring an action for such acts and the court before which such action is brought may grant all such reliefs by way of damages, injunction, accounts or otherwise as shall be available to a plaintiff in any corresponding proceedings in respect of infringement of other proprietary rights.

Subsection 2 provides that a court before which an action is brought under this section, may order that any device or product that is in the custody or control of the alleged violator, which the court has reasonable cause to believe was involved in the violation, to be impounded on such terms as it deems necessary.

Subsection 3 provides that any person who, in the course of business, makes or imports into Nigeria technology or device for the circumvention of a technological protection measure, knowing that it is likely to be so used is guilty of an offence and liable on conviction to a fine of not less than N1,000,000 or to imprisonment for a term of not less than 5 years or to both such fine and imprisonment.

Subsection 4 provides that any person who, in the course of business, sells, distributes, lets for hire, offers or exposes for sale or hire, a technology or device for the circumvention of a technological protection measure, knowing that it is likely to be so used is guilty of an offence and liable on conviction to a fine of not less than N500,000 or to imprisonment for a term of not less than 3 years or to both such fine and imprisonment.

Subsection 5 provides that any person who, in the course of business, provides a service to another knowing that the service is to enable or assist that other person to circumvent a technological protection measure is guilty of an offence and liable on conviction to a fine of not less than N200,000 or to imprisonment for a term of not less than 2 years or to both such fine and imprisonment.

The Bill in this section, provides for the penalties for the offences in Sections 26 & 27. The Bill also provides that the other party whose right is affected by any act under the Bill may bring an action in respect of same, and the court may grant any relief as it deems fit.

25.

Section 29: Notice to Take Down

Subsection 1 provides that the owner of copyright in a work, in respect of which copyright has been infringed, may issue notice of such infringement to the relevant service provider requesting the service provider to take down or disable access to any infringing content or link to such content, hosted on its systems or networks.

Subsection 2 provides that to be effective under this section, a notification of an alleged infringement must be made in writing to the service provider or his designated agent and shall include the following: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of each work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (d) information reasonably sufficient to permit the service provider to contact the complaining party, such as an electronic mail address, telephone number, or a location address at which the complaining party may be contacted; (e) a declaration on oath that the complaining party has good faith belief that use of the material in the manner complained of is not authorized by the owner of copyright or his agent, or the law; and (f) a statement that the information in the notification is accurate and that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

The section provides that a copyright owner whose rights have been infringed upon may issue notice to the service provider in respect of the infringement, that it be taken down.

The Bill, however, does not define the word “service provider.” It is unclear whether this applies to either internet service providers, publishers, social media platforms or to all.

The Bill further provides the contents of a notice to take down before such notice can be regarded as effective.

26.

Section 30: Take down of infringement content

Subsection 1 provides that a service provider, upon receiving notice of infringement under Section 29 shall promptly notify the subscriber responsible for the content for which the notice relates informing him of the content of the notice.

Subsection 2 provides that if within 48 hours of the receipt of the notice of takedown the subscriber fails to provide any information justifying the continued keeping of the content complained about, the service provider shall take down or disable access to the infringing content or links to such content hosted on its systems or networks, and thereafter, notify the owner of the copyright accordingly.

Subsection 3 provides that where a subscriber has provided information justifying the keeping of the content complained about, or the service provider is otherwise convinced that the complaint of the owner of copyright is without merit, he shall promptly inform the owner of copyright of his decision not to take down the content.

Subsection 4 provides that the service provider may resume access to or restore removed content or a link if he receives a written counter notice from the subscriber which he has forwarded to the owner of copyright immediately upon receipt; and he did not receive, within 10 days after forwarding the counter notice, a notice from the owner of copyright, indicating that no authorization has been granted for the subscriber to make the content available.

Subsection 5 provides that a service provider shall take all reasonable steps to prevent any content taken down or removed pursuant to the provisions of this Bill from being reloaded onto its system or network and upon becoming aware of such content being uploaded, to promptly remove pr disable access to the content without further notice to the subscriber.

Subsection 8 provides that a service provider who fails to comply with the provisions of subsection (1) & (2) of this section shall be liable for such failure as a breach of statutory duty; and for infringement of the content which is subject matter of the notice under section 29 to the same extent as the person responsible for placing of such content on the system or network.

Subsection 9 provides that without prejudice to subsection (8) of this section, a service provider, who upon receipt of a notice to take down infringing contents under section 29 of this Bill, and fails to comply with the provisions of subsection (1) and (2) of this section, commits an offence and shall be liable to conviction to a fine not less than N2,000,000 or to imprisonment for a term not less than 2 years, or to both such fine and imprisonment.

This section provides for the means by which the infringing content shall be taken down by the service provider, as well as factors that shall be in place before such content is restored. The section also provides for an offence where the service provider fails to comply with the directives, and the penalty for non-compliance.

It should be noted that where a conflict occurs between the enforceability of the take down order and the policies of the internet service providers (where they fall under the ambit of service providers as provided in this section), the provisions of the Bill shall supersede the policies of the internet service providers.

27.

Section 31: Procedure for suspension of accounts of repeat infringers

Subsection (1) provides that a service provider, upon receiving a notification from an owner of copyright or his authorized agent that a particular account has been engaged in repeated infringement, shall: (a) promptly send a warning to the subscriber who has been identified, informing that subscriber that another notification will lead to suspension of the account and requiring the subscriber to confirm receipt of the warning; and (b) after a second notification relating to the same account, if no challenge is pending pursuant to subsection (2) below, promptly suspend the account for a period of at least one month.

Subsection (2) provides that a subscriber receiving a warning may challenge the notice on grounds of mistake or misidentification as follows: (a) within 10 days from the date of the warning, send a signed counter notice to the service provider, furnishing his full contact details and the factual basis of his belief that his account has been misidentified or that the use of the content was not infringing; (b) if the basis for the challenge under the foregoing subsection cannot be resolved within 10 days of the receipt of the counternotice, the matter shall be referred to the Commission to determine the validity of the challenge.

Subsection (3) provides that a service provider acting in good faith in suspending the account of a subscriber, relying on the information contained in a notification referred to in the foregoing subsection shall not be liable to any person for any claim based solely on that suspension.

This section provides that service provider may suspend the account of a repeat infringer for at least one month upon receiving a notification from the copyright owner. The section also provides that the infringer may challenge the notice, and where a service provider erroneously, but in good faith, suspends the account of a subscriber, the service provider shall not be liable for any claim arising from the error.

28.

Section 32: Misrepresentation

Any person who knowingly materially misrepresents under Part II of the Bill that material or activity is infringing; or that material or activity was removed or disabled by mistake or misidentification; shall be liable for any damages, incurred by the alleged infringer, by any owner of copyright or other subject matter or his authorized licensee, or by a service provider, who is injured by such misrepresentation, as a result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

PART III: NEIGBOURING RIGHTS (PERFORMER’S RIGHTS AND FOLKLORE)

29.

Section 38: Rights of a Performer

Section 38 (1) provides for the acts which a Performer may control in relation to his performance. The section essentially allows the Performer to control the following activities in relation to his performances:

a.    Fixation of his unfixed performance (Recording of such performance in any manner whatsoever)

b.    Reproduction of a fixation of his performance, in any manner or form (This reproduction specifically incudes original fixation for which consent was not obtained from the Performer)

c.     Public distribution either by sale or transfer of ownership in a fixation of his performance that is not yet subject to distribution by the Performer.

d.    Broadcast or communicate such performance to the public unless such performance was already a broadcast performance or is made from a fixation of such performance or reproduction of same

e.     Rental to the public or public lending of a fixation or copies of the fixation of his performance irrespective of the ownership of the copy rented or lent.

f.      Making his fixed performance available through wire, wireless or online means, in such a way that members of the public may access them from a place, or a time individually chosen by them.

Performance in this respect includes – dramatic performance (including dance and mime), musical performances, reading or recitation of literary acts or any similar presentation which is a live performance by one or more individuals.

A Performer includes actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, interpret or otherwise perform literary or artistic works or expressions of folklore irrespective of whether the work is fixed or only fixed during performance

The Bill, through this section allows a Performer to control the distribution and use of his performances, from authorizing the recording of such performance to controlling the distribution of such performance. It also describes who Performers are as well as acts that constitute performances.

31.

Section 40 – Presumption of Consent

This section provides that in the absence of any agreement to the contrary, a Performer’s consent to the broadcasting of his performance shall be deemed to include his consent to the rebroadcasting of his performance, the fixation of his performance for broadcasting purposes and the reproduction for broadcasting purposes of such fixation

This section of the Bill indicates that once a Performer gives consent to the broadcasting of his performance, without having contracts in place limiting the extent of reproduction or broadcasting, such consent will be deemed to also apply to rebroadcasting of such performance.

32.

Section 41 – Moral Rights of the Performer

The moral rights of a Performer by virtue of this section include:

a.    Right to be identified as a Performer in connection with any use of his performance or the fixation thereof

b.    Right to object to and prevent any distortion, mutilation or modification of his performance or fixation and any derogatory action which would be prejudicial to his honor or reputation.

Subsection 2 provides that the moral rights shall not be transmissible during the life of the Performer but shall upon his death be transmissible by testamentary disposition or by operation of law. Further, subsection 3 provides that the moral rights shall subsist for the duration of the Performer’s right

33.

Section 42 – Collective Performances

This section provides that where several performers perform as a group, sufficient consent may be given by any person in charge of the group and any payment for the use of the performance, unless otherwise stipulated, may be made to such person.

34.

Section 43 – Exceptions to Performer’s rights

This section provides that where a Performer gives consent to the incorporation of his performance in a visual or audio-visual fixation, an affidavit would not be required to show that such consent was given.

Subsection 2 further provides that a fixation of a performance may be used without consent of the Performer where:

a.    It is for the purpose of judicial, legislative or administrative proceedings.

b.    It is for the demonstration of recording, amplifying or similar apparatus (provided that such demonstration is made by a licensed dealer on his premises to a specific client)

c.     The reproduction of short extracts from an object of the Performer’s rights in reports on current events, to the extent justified by that purpose.

d.    Use for the purpose of research or private study of an object of the Performer’s rights kept in publicly accessible libraries, educational establishments, museums or archives on the premises of said institutions.

e.     Making an ephemeral recording of an object of the Performer’s rights by broadcasting organizations with their own facilities. Recordings in this instance are to be kept for a period not exceeding 30 days after which they are to be deleted after their use for broadcasting. Recordings of an exceptional documentary character may be transferred to designated archives for preservation.

f.      Such performance is reproduced for disabled persons and for non-commercial purposes.

g.     Performance is to be used for illustration for teaching or scientific research, criticism or review but must include the source/author of such performance unless such is impossible.

Further exceptions from copyright protection as indicated in Schedule 2 are applicable.

This section provides for actions which may be done without the consent of the Performer in relation to his performance.

35.

Section 44 – Transfer of Performer’s rights

A Performer who authorizes the fixation of his performance shall in the absence of any agreement to the contrary be deemed to have granted the receiver the exclusive right to receive remuneration in respect of any broadcast, transmission or communication to the public of such performance, provided that the Performer is entitled to share in any payment received by such receiver or his successor in title.

Where there is no agreement on remuneration, either party may refer the matter to the Commission to determine the proportion of remuneration due to each party.

The Bill provides in this section that where a Performer transfers his rights without any agreement limiting the extent of such transfer, the receiver may have exclusive rights to receive remuneration for any subsequent communication to the public. However, the Performer is still entitled to a share of remuneration for such performance.

Where there is no agreement for remuneration, the Commission may settle same.

36.

Section 46 – Acts of infringement

A breach of Performer’s rights occurs where any of the following is done without the Performer’s consent or authorization:

a.    Making a recording of the whole or substantial part of a live performance

b.    Communicates or broadcasts such recording to the public.

c.     Performs the performance in public.

d.    Plays the Performance for commercial purposes.

e.     Broadcasts in a cable program a substantial part of the performance without Performer’s consent.

f.      Imports an infringing recording.

g.    Sells or lets, offers, distributes an infringing recording.

37.

Section 47 – Action for Infringement

The Performer is entitled by virtue of this section to actions for breach of statutory duty, damages, injunction, account for profits or conversion as well as to an order of court that the recording be forfeited and delivered up to him.

This provides for actions a Performer may take in the event of a breach of his rights.

Specific performance is not indicated as a remedy under the Bill, however considering the doctrine of specific performance is a remedy in equity, the courts may apply this doctrine where necessary.

38.

Section 48 – Criminal Liability for infringement

This section provides that a person who does any of the acts set out in section 38 shall, unless he proves to the satisfaction of the court that he did not know that his conduct was an infringement of the performer’s right, be guilty of an offence and liable on conviction:

a.    For individuals, a fine not less than 1 million Naira or 12 months imprisonment term or to both

b.    For a Corporate body, a fine not less than 5 million Naira

Court may further order that the recording be delivered to the Performer

These provisions are meant to ensure full compliance with the Bill and discourage default. The requirement for knowledge is in accordance with the criminal law rule that requires the mental element and physical element to be present before a conviction may be made. 

39.

Section 49 – Protection of expressions of folklore

This section provides that expressions of folklore are protected against the following acts:

a.    Reproduction

b.    Communication to the public by performance, broadcasting, distribution by cable or other means

c.     Adaptations, translations and other transformations

Where such expressions are made for commercial purposes or outside their rational or customary context.

It further provides that the right to control in this regard shall not include control over:

a.    Acts by way of fair dealing for private and domestic use and in the event that the use is public, it shall be accompanied by an acknowledgement of the title of the work and its source.

b.    Utilization for educational purposes

c.     Utilization by way of illustration in an original work of an author – utilization must be compatible with fair practice.

d.    Borrowing of expressions of folklore for creating an original work – such utilization must be compatible with fair practice.

e.     Incidental utilization of expressions of folklore

Any identifiable expression of folklore used in all printed publications or communications to the public, its source is to be indicated in an appropriate manner, by mentioning the community or place where such expression has been derived.

The right to authorize acts in this section is vested in the Nigerian Copyright Commission (NCC).

40.

Section 50 – Infringement of folklore

This section provides that any person who, without the consent of the NCC uses an expression of folklore in a manner not permitted shall be in breach of statutory duty and will be liable to the Commission in damages, injunctions and any other remedies as the court may deem fit to award in the circumstances.

 Where folklore is used in the following manner, the provisions of this section shall not apply:

(a) the doing of any of the acts by way of fair dealing for private and domestic use, 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 source;

(b) the utilisation for purposes of education;

(c) utilisation by way of illustration in an original work of an author provided that the extent of such utilisation is compatible with fair practice;

(d) the borrowing of expressions of folklore for creating an original work of an author provided that the extent of such utilisation is compatible with fair practice;

(e) the incidental utilisation of expressions of folklore.

41.

Section 51 – Criminal Liability

This section provides that any act done in contravention of this section – including the willful misrepresentation of the source of an expression of folklore or distorts an expression of folklore in a manner that is prejudicial to the honor, dignity or cultural interests of the originating community shall be guilty of an offence under the Bill and shall be liable upon conviction to the following penalties:

a.    In the case of an individual, to a fine not exceeding NGN100,000.00 (One Hundred Thousand Naira) or imprisonment for a term of 12 months or to both fine and imprisonment.

b.    In the case of a body corporate, to a fine of NGN500,000.00 (Five Hundred Thousand Naira)

c.     A court order ordering that the infringing or offending article be delivered to the Commission.

PART IV: ADMINISTRATION OF COPYRIGHT

42.

Section 52 – Establishment of Nigerian Copyright Commission 

This section established a body to be known as the Nigerian Copyright Commission (“the Commission”) Saddled with the following responsibilities:

a.    Administration of all matters affecting copyright in Nigeria as provided for in the Bill.

b.    Monitoring and supervision of Nigeria’s position in relation to international conventions and advising Governments thereon. 

c.     Advising and regulating conditions for the conclusion of bilateral and multilateral agreements between Nigeria and any other country.

d.    Enlightening and informing the public on matters relating to copyright.

e.     Maintaining an effective data bank on authors and their work.

f.      Be responsible to such other matters as relates to copyright in Nigeria as the minister may from time to time direct.

This section established a body called Nigerian Copyright Commission and spelt out their duties and responsibilities. These remain unchanged from the duties and responsibilities in the existing Copyright Act.

43.

Section 53- Establishment, Membership and Functions of the Governing Board.

This section gives the minister the discretion to, from time to time direct that the Commission shall from time to time have a governing board (“the Board”) which shall have the following members-

a.     a chairman to be a person knowledgeable in the copyright matters to be appointed by the President on the recommendation of the Minister.

b.    The Director-General of the Commission

c.     One representative of the Federal Ministry of Justice

d.    One representative of the Federal Ministry of Education.

e.     A representative of the Nigerian Police Force, not below the rank of a Commissioner of Police.

f.      One representative of the Nigerian Customs Service, not below the rank of a comptroller of customs.

g.     Six other persons to be appointed by the minister who shall represent as far as possible the authors in the following areas-

(i)             Literary work

(ii)            Artistic work

(iii)          Musical works

(iv)           Audiovisual work

(v)            Sound recordings; and

(vi)           Broadcasts

The section further provides that the representative of the ministries shall be officers not below the rank of a Director.

44.

Section 54 – Appointment of the Director- General and other staff of the Commission.

This section creates the office of the office of the director general of the Commission who shall be a legal practitioner of not less than ten years post-call experience and knowledgeable in copyright law and administration. 

The director general shall be responsible for the day to day running of the Commission.

45.

Section 55 – Establishment of dispute resolution panel

The Commission may constitute a dispute resolution panel (hereinafter referred to as (“the panel”) to resolve any dispute in respect of payment of royalties or terms of license; or determine any matter in respect of payment of royalties or terms of a license; or determine any matter in respect of which a determination by the Commission is required under this Bill. 

It further provides that the panel shall comprise of three persons knowledgeable in copyright matters, one of whom shall be designated as a chairman.

A person shall not be appointed as a member of the panel if he has any interest in any matter which is required to be determined by the panel.

(4) Where proceedings before the panel have been commenced and the member of the panel is unable to continue, the panel shall remain duly constituted for the purpose of those proceedings so long as two members remain.

The section finally provides that any person dissatisfied with the decision of the panel my apply to the court for a review of the decision.

This section provides for dispute resolution panel to resolve any dispute in respect of payment of royalties or terms of a license or determine any matter in respect of which a determination by the Commission is required by the Bill.

46.

Section 56 – Provision for appointment of Copyright Inspectors.

The section provides that the Commission may appoint a copyright inspector as it may deem fit.

The section further empowers a copyright inspector to:

a.    Enter, inspect and examine at any reasonable any building or premises which he reasonably suspects are being used for any activity which is an infringement of copyright under this Bill.

b.    Arrest any person who he reasonably believes to have committed an offence under the Bill.

c.     To make such an examination and inquiry as may be necessary to ascertain whether the provisions of this Bill are complied with.

d.    To require the production of the record required to be kept under this Bill and it inspect, examine or copy it.

e.     To demand information and access any database relating to the copyright.

f.      To require any person who, he finds in such building or premises to give such information as it is in his power to give in relation to any purposes specified in this Bill and seize, confiscate, take into custody any infringing copy, contrivance, material, equipment used in committing an offence under this act. 

g.    Seal up premises and carry out such examination, test or analysis within or outside the premises as required to give effect to any provision of this act and take instant or photograph is carried out within the premises and such examination, test, analysis or photograph shall be required to be endorsed by the occupier of the premises or his agent but a refusal by an occupier to endorse any document containing the result of an examination, test , analysis or photograph shall not invalidate the  result or finding of the examination  or photograph.

The Bill further provides that a copyright inspector in the performance of his duties shall be guilty of an offence and liable on conviction to a fine of not less than N 100,000.00 or to imprisonment for a period not less than 12 months or to both such as fine and imprisonment.

Finally, the Bill provides that a Copyright Inspector shall have all the powers, rights and privileges of a police officer as defined under the Police Act and under any other relevant enactment pertaining g to the investigation, prosecution or defective of a civil or criminal matter under this Bill.

This section provides for appointment of Copyright inspectors and invests them with certain duties, powers and rights.

47.

Section 58 – Collective Management organization.

This section provides for formation of a collective management organization (“CMO”) in respect of any one or more rights of copyright owners for the benefit of such owners, the CMO may apply to the Commission for approval to operate as a collective management organization for the purpose of this Bill.

The Commission may approve a CMO if it is satisfied that-

a.    It is incorporated as a company limited by guarantee.

b.    Its objects are to carry out the general duty of negotiating and granting copyright licenses and collecting royalties on behalf of the copy right owners and distribute same to them.

c.     It represents a substantial number of owners of copyright in any category of work protected by this Bill.

d.    It complies with the terms and conditions prescribed by the regulations made by the Commission under this section.

The Bill further provides that the Commission shall not approve another CMO in respect of any class of copyright owners if it is satisfied that an existing approved CMO adequately protects the interests of that of copyright owners.

It shall be unlawful for any group of persons, howsoever described, to purport the duties of a CMO without the approval of the Commission as required under this section. Where any person contravenes this provision, the person shall be guilty of an offence and liable on conviction to a fine of not less than N1,000,000.00 or to imprisonment for a term of not less than 3 years or to both such fine and imprisonment. Where the contravention is by a body corporate, it shall be guilty of an offence and liable on conviction to a fine of not less than N5,000,000.00.  

This section of the Bill makes the approval of the CMO subject to the terms and conditions provided in the Copyright (Collective Management Organisations) Regulations 2007 (the “Regulations”). Whereas the Bill makes a wide provision that a CMO may be approved by the Commission where it is satisfied that the CMO represents a substantial number of owners of copyright, the Regulation specifies same where it provides that the company shall represent not less than 100 right owners as a CMO approval prerequisite.

The Bill goes ahead to make a specific provision that the company applying as a CMO shall be a company limited by guarantee while the Regulation only provides that the company shall be a duly registered company.

48.

Section 59 – Compensation for private copying.

This section provides for compensation on every material capable of being used to reproduce a work.

The section further provides that the compensation payable under this section and any exemptions therefrom shall be as may be prescribed by the Minister by Order published in the Gazette, and different rates of compensation may be prescribed for different categories of materials.

The compensation payable under this section shall, subject to deductions, be disbursed to approved Collective Management Organizations in accordance with the regulation made by the Commission.

Finally, the section defines material to include any object, equipment, machine, contrivances or any other device used or capable of being used to reproduce a work.

This section provides for compensation on every material capable of being reproduced. Any individual or body that suffers a copyright infringement might be compensated under this provision.

PART V: MISCELLANEOUS

49.

Section 60: Levy on copyright material

Subsection 1, 2 and 3 provides that a levy shall be paid on any material which has been used or is capable of being used to infringe copyright and this levy will be determined by the Minister and published in the Gazette which is dependent on the category of the material and which levy shall be paid to the fund of the Commission.

Subsection 4 provides for the power of the Minister to exempt any class of materials from repayment of any levy while subsection 5 provides that materials mean any object, equipment, machine, contrivances or any other device.

This Bill states that a levy shall be paid when there is a material that infringes on a copyright. The Minister will have the power to determine how much will be paid in this instance.

This emphasizes the power of the minister to determine whether an object, equipment, machine, contrivances or other device will not pay the required levy.

50.

Section 61: Reciprocal extension of protection

This section provides that the Minister may extend the application of this act to individuals domiciled or corporate bodies registered in countries that are signatories to mutual treaties or international agreements with Nigeria and the Country provides protection for copyright in works protected under this Bill.

This section states the instance where the application of this Bill may be extended to other countries who are signatories to mutual treaties or international agreements. 

51.

Section 63: Presumptions

This section provides that certain things are presumed in an action for infringement of copyright to wit: a copyright subsists, the plaintiff is the owner of the work, the name of the author appearing on the work is the name of the author,  the name of the publisher appearing on the work is the name of the publisher, that the work is an original work and that it was published at the place and on the date appearing on the work.

This section provides that where an action arises from a copyright,  certain presumptions shall be made in the face of the action such as is listed out in this section.

52.

Section 64: Restriction on importation of infringement copies

Subsection 1 provides that the owner of the copyright may give notice in writing to the Nigerian Customs Service that he is the owner of the copyright and that the Nigerian Customs Service during the specified period treat the copies of the work as prohibited goods.

Subsection 2 provides that section 1 shall apply to works made outside Nigeria which would be an infringing work in Nigeria, as well.

This section provides the responsibility of the Nigerian Customs Service to recognize and acknowledge the owner of a copyright after notice has been given to it by such person. Subsection (2) provides that such recognition will extend to work made outside Nigeria.

53.

Section 65: Regulations

Subsections 1 and 2 state that the Minister shall make regulations for the works vested in both the Government or in a state authority.

Subsection 4 states that the Commission shall have the power to make regulations specifying the conditions necessary for operation of a business which involves production, public exhibition hiring or rental.

This states the power of the Minister to make regulations.

54.

Section 66: Jurisdiction

This section provides that the Federal High Court shall have exclusive jurisdiction for trial of offences or disputes.

This pronounces the absolute jurisdiction of the Federal High Court on all offence arising from copyright.

55.

Section 67: Limitation on suit against the Commission

This section provides for the limitation on actions against members of any staff of the Commission in the cause of carrying out his duties under this Bill unless such action is commenced within twelve months after the act or neglect or where the damages continue.

Subsection 2 provides that no suit shall be commenced against any member of staff of the Commission before the expiration of three months’ notice of intention to commence the suit.

Subsection 3 provides that the notice shall include the cause of action, particulars of claim, the name and place of abode of intending plaintiff.

This section states that there shall be a limit to suing a staff of the Commission, particularly when the cause of action arose in the course of carrying out his duty and also when the action occurred within the previous twelve months.

It also states that after the expiration of a three months’ notice, shall a suit be commenced against a staff.

The notice of intention to commence the suit must include the cause of action, particulars of claim, the name and place of abode of intending plaintiff

56.

Section 69: Restriction on execution against the property of the Commission

This section provides that in any suit against the Commission, no execution or attachment or process in the nature thereof shall be issued against the Commission.

57.

Section 70: Power of the Director to give directives

The Minister may give to the Commission directives of a general or special character with respect to its functions under this Bill.

FIRST – FIFTH SCHEDULE

First Schedule

This schedule describes the types of work and the expiration date of the copyright (Terms of the Copyright)

Second Schedule

Outlines the exceptions from Copyright control which is contained in Sections 6,7 and 8 of the Bill.

Third Schedule

Outlines some special exceptions to the power conferred by section 6(4) of the Bill, in respect of Sound Recording in a musical work

Fourth Schedule

This Schedule provides the conditions required to obtain the Compulsory license for Translation and Reproduction of Certain Work which includes the production and publishing of translations, License for domestic broadcasting organization,

Fifth Schedule

This schedule outlines the Transitional and savings provisions as the Bill applies to works made before the commencement of the Bill as well as works made after the commencement of the Bill.