Rosemary Nkechi Ogueri is a litigation lawyer and a legal associate at Ogunwale & Associates Law Firm in Nigeria.
Copyright infringement is the violation and piracy of an author’s exclusive right through the unauthorized use of a Copyright-protected work. Section 15 (1) (a)-(g) of the Copyright Act, C28, Laws of the Federal Republic of Nigeria (“LFN”), 2004, provides several acts that amount to copyright infringement in Nigeria. These acts include:
- The doing of any of the acts which are within the exclusive rights of a copyright owner without the authorization of the owner of the copyright;
- Importing or causing to be imported into Nigeria any copy of a work which, if it had been made in Nigeria would be an infringing copy under this section of this Act;
- The exhibition in public of any article in respect of which copyright is infringed under paragraph (a) of this subsection;
- The distribution by way of trade offers for sale, hiring 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;
- Making or having in one’s possession plates, master tapes, machines, equipment, or contrivances used for making infringing copies of the work;
- Permitting a place of public entertainment or business to be used for a performance constitutes an infringement of copyright in work, unless the person permitting the place to be used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;
- Performing or causing to be performed for trade or business or as supporting facility to a trade or business, any work in which copyright subsists.
It is important to note that copyright law does not protect the idea behind the work, but the expression of work. The fact that a latter work bears some similarity to an existing work does not, on its own, amount to infringement of the reproduction right. The burden lies on the copyright owner to prove that the allegedly infringing work is a reproduction of the whole or a substantial part of the whole of their work. To prove misappropriation, two factors must be established;
- Causal connection
On the issue of casual connection, the Plaintiff must prove that the infringing work was copied or otherwise taken from their work. It is entirely possible and legally permissible for the Defendant to independently create a work, in respect of which the latter creator will own the Copyright, notwithstanding the similarity of such work to other existing works. This is particularly the case where the subject matter involves the use of a common source comprising factual or historical information. For example, writers of a history textbook may base their works on the same or similar historical sources. References to these identical sources do not necessarily mean that one is copied from the other. The role of casual connection is to put the burden on the Plaintiff to prove that there is a connection between the two works.
In CBS Inc. & Ors v Intermagnetic Co Ltd & Anor (1977-1989) 2 I.P.L.R. 3551, the Court held that the causal connection does not have to be between the parties but between their respective works. The Court found that the work printed by the Defendant were exact replicas of the Plaintiff’s earlier works. The Court held that the Defendant was liable for infringement of the copyright in the Plaintiff’s works.
- Substantial taking
The Plaintiff must prove that a substantial part of their work was taken. In this regard, the law is well settled that in determining whether the part taken is substantial or not, more importance is attached to the quality rather than the quantity taken. Where what was taken is qualitatively small but comprises the heart or defining element of a work, such act will amount to substantial copying.
In Okilo v Dick Francis and Anor (2003-2007) 5 I.P.L.R 243, the court held that the Defendant was liable for infringement of the Plaintiff’s copyright in his musical work, by duplicating the master tape which the Plaintiff gave to him and sending it to friends who live in Holland and England without the Plaintiff’s authorization.
Action for Copyright infringement.
Section 16 of the Act, provides that an action for infringement of copyright shall be actionable at the suit of the owner, assignee, or an exclusive licensee of the copyright in the Federal High Court exercising jurisdiction in the place where the infringement occurred. Section 16 of the Act, also provides for both civil and criminal actions for infringement of copyright, and both actions may be taken simultaneously.
The success of an action for infringement depends on the Plaintiff’s ability to prove their case on the balance of probability in a civil action or beyond a reasonable doubt in a criminal action.
Remedies for infringement of Copyright
Reliefs for copyright infringement under Section 16 of the Act may include damages, injunction, and or account of profits.
Copyright protects the expression of ideas and not the ideas themselves. For a literary, musical, or artistic work to be eligible for copyright protection under Section (1) (2) of the Act, adequate effort must have been expended on the work to give it an original character.