RaphaelAbstract:
Our minds are the forging house of ideas. Ideas are not of substance if not expressed. The works of the mind so very well expressed are entitled to some level of protection from illicit interference emanating from an alien to that work and the need to offer legal protection and guarantee to these works of our intellect gave birth to the Copyright Act which is the recognized law affording protection to series of our intellectual products.
The evolution of our copyright laws have over the years been faced with with controversies as to what best way a product of the mind should be protected. This controversies however have been reconciled over the years thereby giving them a resting home in different phases of repeals and amendments.
The world wields a propulsive force leading it to a trajectory lane of evolution. These evolutionary information should strategically be passed to the draftsman as to make a good reflection on our laws so that the dynamism of the law is well appreciated.
The root of the law should be preserved but the branches should periodically be pruned as to reflect the ecological and environmental changes. Consequent upon these,this paper with its literal scalpels aims at cutting deep into the world of copyright, reminiscing the rusted days of it, analysing the fashionable stand it takes now and envisaging it’s futuristic prospects.
- The Origin of Copyright.
Speaking from the legal streak, Copyright came to be as a result of the need to ensure the privacy right of an owner of a particular intellectual good. It is a right enjoyed by the originator of an expressed idea dissuading the public from any possible exploitative and imitative advances towards the said expression.
This is however foundational on Sec. 37 of the Constitution of the federal republic of Nigeria,1999 as Amended which unequivocally provides for the right to privacy as a member of the class of fundamental human rights.
The Section aforementioned declared that “The privacy of citizens, their home, Correspondence, telephone and telegraphic communications are hereby guaranteed and protected”1. This protection of a copyright is derivable from the first phrase to that provision which reads “The Privacy of Citizens”.
The court in the case of Hon. Peter Nwali v EBSIEC & Ors. 2 have interpreted this phrase to include anything personal to an individual.
By such interpretation, it is not suicidal to hold forth to the view that copyright of an individual is something personal to that individual and at such falls within the terrains of legal protection afforded by Sec. 37 of the 1999 CFRN (supra). It is a legal culture that every law derives its power from the grund-norm which is the Constitution and the power enjoyed by the Copyright Act is derivable not from void but from the legal dictates of Sec. 37 of the 1999 Constitution (supra).
The Historical School gave us an exhilarating account of how the right under study stemmed up. This is traceable to the judgement given by King “Diarmart” while settling the dispute between one “Mr. Finnanin” and “Mr. Collumcille” in England where the former accused the latter for copying his Bible without his permission.
While giving judgement, King Diarmart made a declaration which personalized individual rights to property including intellectual and material properties. The word of the king came thus: “To every cow, her calf and to every book, its copy” 3.
This declaration gave owners of material and intellectual properties the exclusive rights to their properties devoid of any interference by another without their lawfully obtained permission.
Even before this declaration by King Diarmart, it is safe to say that the right to intellectual properties have been living among men, hence, its origin can be traced to antiquity and is as old as man.
In the indigenous parts of Nigeria when the fog hasn’t given way for the clarity of the day, local songs and panegyrics are sang by local indigenes in native languages and while being performed, elated villagers throws some coins at the feet of the performer.
For a fellow villager to learn the lyrics of the local songs,he/ she consults the performer and pays some royalty to him/her. The local flute blower while reeling out the melodious spirit evoking sounds from the compassionate caress it gives to his flute and the affectionate kiss his lips gives to the tip of the flute gets monetary gifts from elated villagers also.
A village storyteller most of the time gets itemized gifts from his audience including fruits, local baskets,broom and a host of many others. All of these are ways of paying royalties to the copyright holders to those intellectual and dexterous services they render.
The idea behind Copyright is that an alien to that product before tampering with it gets the owner’s permission and pay some agreed royalties to them.
- The Emergence of the Copyright Laws in Nigeria.
The emergence of Copyright law in Nigeria is traceable to England to which Nigeria was once a colony of. The Crown of England and the Church in a consensual bid to prevent the spread of seditious articles (as it relates to the crown) and heresy (as it relates to the church) monitored the printing of books in England and censored the press.
The evolution of the Gutenberg printing machine made it easier to print and reproduce materials at cheaper rates. To meet the teaming need of the Crown and the Church, the Stationers company was established in England in 1556.
The company was granted Monopoly to printing in England by Queen Mary of England in 1557. This monopoly helped in checkmating piracy as the Stationers company is the only printing company in England. The monopoly remained up until 1637 after which it’s continuance was partial.
This partial lift of the monopoly power allowed the inflow of pirated works and duplicated works of other people as there were existence of companies given the power to publish aside the Stationers company. This new development led to the promulgation of the Statute of Anne in 1709. 4
This statute gave authors an unpaired and undisturbed right over their work for a period of 14yrs which at the effusion of time leaves them with a renewal option of another 14yrs. This Act however was followed by the Copyright Act of 1842 5 which came before an international standard was set to address the issue if copyright infringement hence the 1886 Berne Convention for the protection of literary and Artistic work 6; then came the Copyright Act of 1911 7 which was received in Nigeria in 1912 by Order No.12 of June 1912.
The 1911 Act granted protection for a work for as long as 50yrs after the authors death. This Act was however repealed by the Copyright Act of 1970 7 because it protects only works first published in England or works made by an author-resident of the crown colony.
It does not capture every part of the country as it’s merely a tool in the hands of the colonial masters than it is in the hands of Nigerians. The 1970 copyright Act however met it loo in 1988 with the emergence of the Copyright Act, 1988 8.
This is because it is said that the Act failed to create an administrative Agency capable of enforcing copyright laws in Nigeria. It is also reported that the Act lacked adequate criminal sanctions and its Civil enforcement procedure was filled with inadequacies.
The 1988 Act established the Copyright council now operating as Nigeria Copyright commission. This Act have however met several Amendments in 1992 and 1999.
It was the view of many legal eggheads that the 1988 Act with its double Amendments is the the most nourished legislative enactment on copyright.
This is after the fact that it was modelled on the dictates of the World Intellectual Property Organization (WIPO) whose aim is enforcing the international standard reached at the 1886 Berne Convention 9 and 1952 Universal Copyright Convention 10.
The Act extends its protective tentacles to literary works, musical works,artistic works, cinematographs, sound recordings and broadcast. This scope of its protection is clearly spelt out in Sec. 1 of the Copyright Act, Chapter C.28 LFN, 2004. Copyright holder as used in the Act includes the author, Co-author, licencee, heir or successor in title to the copyrighted work.
The Act in Sec. 11 spelt out the rights exercisable by a copyright holder and these rights are declared perpetual, inalienable and imprescriptible. What constitutes an infringement is contained in Sec. 14 of the Act.
The 1988 Act vests exclusively on the federal High Court,the Jurisdiction to entertain Copyright Suits. This bestowment is however cemented on the legislative land of Sec. 14 of the Act. The basis of liability for an infringing party are however scripted in Sec. 18 of the Act. Sec. 19 on the other hand establishes a cooperate liability for offence under the Act committed by a body cooperate.
However rich and nutritious this Act may look, I still leave it to the paucity of novelties. There are great advancement already made in the copyright world which the 1988 Act has paid deaf ears to and have displayed blindness at.
It is often said that the beauty of the law lies on its flexibility,such flexibility allowing it to easily adapt to the circumstantial trends. The law substantially ought not to be attentive to the weather of the day in order to do away with the problem of instability. The law should take counsel to the climate of the era.
The climate of this era is one that bespeaks of digitization, the era that holds firmly to technological innovations and kicks. Many Copyright infringements are committed on the technological space as the 1988 Act sanctions only infringement committed offline.
Copyrightable works when sent online are exposed to the chagrins of the public. The online zombies and vampires are ever ready to pounce on it and devour it to their satisfaction and benefits.
The need to treat the malady created by innovation brought about the dosage prescribed in 2021 to the National Assembly known as Copyright Bill, 2021 which is now Copyright Act, 2023. This Act absorbed the nutrients of the 1988 Act but dished out more flavours to it.
- The Novel Introductions of the Copyright Act 2022.
The advent of the Copyright Act 2022 (colloquially cited as the Copyright Act 2023) evoked a new dawn in the intellectual property domain, particularly to the welkin of the Copyright holders.
This novel Copyright Act of 2022 was recorded to be one of the last legislations assented under the administration of the former President Muhammadu Buhari.
The signing of the new Act was a culmination of extensive efforts by various stakeholders aimed at enacting a comprehensive copyright legislation to align with global standards and present-day realities. 12
The Act breathed a new air into the atmosphere and strengthened further the protection of the Copyright holders to the evolution of the digital realm. It serves as an aliment to the provisions of the old Acts, and electrified its provisions in the digital space.
This Act was more concerned with safeguarding the rights of an author of any idea against any impingement in the digital space, by enhancing authors rights and imposing stricter punishments for criminal violations.
The novel introductions of this very Act commenced with the inclusion of audio visual as one of the eligible works to gain the copyright protection, in replacement of cinematography which was the properly secured under the old Acts. 13
Other inventories within this eligible class includes also literary works, musical works, artistic works, sound recordings and broadcasts. 14
Additionally, the Act specifies the parameter for the entitlement of the legal privilege known as copyright, which involves that the author must have expended some efforts on the product giving it an original character, and the product has been fixed in any known or later to be developed medium of expression, from which it can be perceived, reproduced or communicated with or without the aid of a device or machine. 15
The central provision Introduced by this Act is the guarantee of the digital content protection. This involves prohibition of utilizing any digital content without the permission of the author. This is envisaged in the expansion given to the definition of a ‘copy’ to include digital copy. 16
The import of this, is that any provision prohibiting the infringement of any copy includes digital copy. Furthermore, the Act affords the copyright owners the right to send notifications for the removal or deactivation of links to illegal contents which posed an infringement to copyright of the original author. 17
In addition to this provision, the legislation grants the Copyright commission to prohibit websites at such instance.
The Act further shielded the traditional cultural expressions which involves the folklores, from exploitation for commercial gains outside its original content without the consent of the indigenous group of its invention or the copyright commission.
The Act introduced many other provisions, outside the ones pinpointed in this essay which are relevant to the protection of the copyright holders.
- Benefits of the Copyright Act 2022
One of the shortcomings of the old Act was it’s limitation in scope. Specifically, it did not contemplate the protection of digital works. 18 This is however understandable considering that the old Act was enacted prior to the proliferation of the digital revolution and drafters could not have envisaged the extent of revolution at the time. 19
Eventually, considering this deficit in the old Act, the new Act tends to proffer a remedy to the posed situation infringement of intellectual property by any author in the digital space.
Thus the new Act was actively instrumental in expanding the scope of the legal privilege guaranteed to the authors of intellectual property known as copyright, especially by providing for the protection of digital contents.
This is envisaged in the definition of a ‘copy’ which was extended to include a ‘digital copy.’ 20 The import of this provision is that every provision in the new Act prohibiting the copying of a copyright protected work, includes prohibition from making digital copies. 21
For instance Section 36(b) of the Copyright Act 2022 provides for the prohibition of the importation into Nigeria of any copy of work which if it had been made in Nigeria would be an infringing copy to include a digital copy.
Additionally, the new Act enables public access to the publication of any intellectual property by granting the original inventors or any person authorized by them, the exclusive right to publish their work via wire, wireless, or online means to the extent that the public can access at their convenient moment. 22
Considering the possibility of the inherent infringement threats/dangers posed in the digital space, the Act assured the digital content protection, by prohibiting the utilization of any work published in the digital space without the owner or author’s permission. 23
Another significant provision of the novel Act is the enabling of the physically disabled persons like the blind, impaired or print – disabled persons to make or obtain through their representatives, copyrighted works in an accessible form, without obtaining the license or permission of the original author. 24
Conclusively, the Act offered tremendous benefits to the copyright holders in the digital realm and expanded the scope of the old Acts.
CONCLUSION
The Copyright Act originated in an attempt to secure the protection of the work of our minds. This legislation has passed several phases of repeal and amendments.
The root of this legislation is maintained to protect our intellectual products, while it’s branches which are residual in the phases of amendments and repeals, are being constantly pruned, in an attempt to get the best security of our intellectual products at each evolution stage.
This legislation was received into Nigeria as an English legislation, which was later enacted in 1988 to sustain the demands of the Nigerian nation, it was later repealed in 2004, and recently amended in 2023.
The shortcomings of the old Acts was basically its limitation in scope but with the advent of the novel Act of 2023 its scope expanded to ensure protection in the digital space.
The most significant and magnificent attainment of the 2023 Act is its strives to meet with the digital revolution, which it offers practical provisions which tends to gauntlet with the infringement in the digital realm.
The novel Act further enables pubic access to the digital copies of any intellectual property but not for the utilization of those copies without the author’s consent. It also enables the physically disabled to access those copies without the author’s consent.
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References
1.Sec. 37 of the CFRN(1999) As Amended
2.2014)LCN/7445(CA)
3.The story of St. Columba: A modern copyright battle in sixth century Ireland By Ruth Suehle published in June 9, 2011 at Opensource.com
4.Brief history of Copyright Law published at Isochukwu.com on 2016/06/19
5.ibid
6.ibid
7.ibid
8.ibid
9.ibid
10.ibid
11.ibid
12. A New Dawn for Copyright Protection in Nigeria by Templars Thought Lab published on 1st June, 2023.
13. See Section 2 (1) Copyright Act 2022.
14. Section 2(1) of Copyright Act 2022.
15. See Section 2(2) (a) – (b) of the Copyright Act 2022.
16. Section 36(b) of the Copyright Act 2022.
17. See Sections 54 & 55 of the Copyright Act 2022.
18. A New Dawn for Copyright Protection in Nigeria by Templars Thought Lab publication on 1st June, 2023.
19. A New Dawn for Copyright Protection in Nigeria by Templars Thought Lab publication on 1st June, 2023.
20.& 21 Section 36(b) of Copyright Act 2022.
22. See Sections 9(1) (i), 10(1)(f), 11(f), 12(d) and 13(1)(c) of the Copyright Act, 2022.
23. See Section 50(3) of the Copyright Act 2022.
24. see Section 26 of the Copyright Act 2022
About the Authors
Obiagwu Chidera Sixtus is a 400 level Law Student of Chukwuemeka Odumegwu Ojukwu University with a special fling for Minority and Women’s law and Industrial law. He has authored plethora of articles both published and unpublished. He holds the current status of Advocate of the Year of the COOU Law faculty and has served severally in different capacities.
He’s an active member of LIFIN, a constituted member of LIFIN law clinic, Chukwuemeka Odumegwu Ojukwu University Anambra State and the Chairman of Students’legal Aid Council in his campus established under the auspice of LIFIN law clinic.
Michael Okafor is a penultimate student of law at Chukwuemeka Odumegwu Ojukwu University Anambra State, Nigeria, with a penchant for learning about legal studies, legal writing, advocacy, and leadership.
He has an ardent interest in Constitutional Law, Criminal Law, Industrial Law and Intellectual Property Law. Following his interest on these areas of law, he has authored several publications, published at the Voice of Law blog, Legal Scribes Club gazette and the Legal Nuggets Intiative blog. He equally has several other unpublished articles outside the aforementioned areas of law.
He has interest in advocacy and legal drafting and litigation and he is currently an intern at Dr. Onyechi Ikpeazu (SAN) chamber Onitsha.
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