The Locus Standi For Infringement Of A Copyright In Nigeria By Alkasim Abubakar

INTRODUCTION
Courts of law are established and assured accessibility for everyone who feels his right is infringed or likely to be infringed to seek redress and ventile his graviences. It’s always believed that court is the last hope of a common man yet, not just the common man. It’s the shrine where Justice can be prayed, accessed and obtained, no attempt will be made here to exhaust the potency and reputability of the Courts in protecting the rights and liberties of the people. In that regard, the rights and liberties of authors, writers, publishers, artists etc do not stand as exceptions, Law grants them the liberty of maintaining legal action against any person who infringed their copyrights. These rights are exclusively enshrined under the Copyright Act, Cap C.28, Laws of the Federal Republic of Nigeria 2004 (to be referred as the Act after now) and by extension under the Section 44 of the 1999 Constitution of the Federal Republic of Nigeria.

However, It’s axiom that whatever law grants, law limits. Sequel to that, before one can validly institute and maintain an action against any other person, he must show that he has the legal right and capacity of instituting, initiating or commencing such action in a competent Court of law or tribunal. Putting it in another words, one must show that he has a Locus Standi. Therefore the copyright is a property right exercisable over certain types of intangible/memorable property and so only a person having a legal right over such property is entitled to enforce his right in accordance with the laid down principles of law. In this vein, this article attempts to examine the legal personality that has a Locus to sue for a copyright infringement.

Note that, except otherwise is stated therein the terms ‘owner and author’ will be used interchangeably as reference to the original owner of the copyright works explain under section 1 of the Act.

THE MEANING OF LOCUS STANDI
Locus Standi or “Standing to sue” denotes the legal capacity to institute proceedings in a Court of law. It has been held to be a threshold issue which has a fundamental bearing on the entire adjudication. It goes to the root of the competence of the Court to entertain the proceedings. It is settled law that where a plaintiff lacks the locus standi to institute an action, the Court would have no jurisdiction to entertain it. See: MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE v. COMPACT DISC TECHNOLOGY LTD & ORS (2018) LPELR-46353(SC) and the celebrates case of ADESANYA V PRESIDENT OF F.R.N & ANOR. (1981)5 SC 112.
The doctrine of locus standi was developed to protect the Court from being used as a playground by professional litigants and busybodies who have no real stake or interest in the subject matter of the litigation they wish to pursue. See the case AMAH v. NWANKWO (2007) 12 NWLR (Pt 1049) 552,)

COPYRIGHT INFRINGEMENT
The term Copyright Infringement simply means making or causing to be made for sale, hire, or for the purpose of trade or business any copy of any of the works explain under the section 1 of the Act. That’s literary works; musical works, artistic works etc. without the authorisation of the original owner or the holder of that right. Simplistically, Copyright infringement is the violation of the copyright protected by the law.

Having explained our Key terms the next question on board is who has the Locus Standi for Copyright Infringement? In other words who can sue for Copyright Infringement?
A person can institute an action for copyright infringement either in a personal or representative capacity whether as an owner, assignee or exclusive Licensee of Copyright of the work in question. See section 15 sub(1)of the act and MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE v. COMPACT DISC TECHNOLOGY LTD & ORS(Supra).

The following are the categories of persons who can sue for infringement of their copyright:

AUTHOR
To start with, the original author of a work is the initial person to whom the copyright is belong in the first instance unless otherwise is stipulated in writing under contract. Thus he can sue and claim the Infringement of his copyright. See section 1, 2 and 9(1)&(2) of the Act. However the Community reading of section 9 Section and 10 sub (1) to (5) reveils that the author could transfer his copyright either by assignment, by testamentary disposition or by operation of law, as movable propertyor by being an employee hired for the purpose of that work or as stipulated under sub section (5) of section 9 and section 4 of the Act the copyright belong to the or the International Body as the case may be.
Moreover, that will not deprive the author from exercising the perpetual, inalienable and imprescriptibleright granted to him by the provision of section 11 of the Act for the purpose of protecting his honour or reputation.

ASSIGNEE Or LICENSEE
As already stated by-the-way, the copyright of the original author is transferrable to either an exclusive licensee or non-exclusive licensee. An exclusive licensee is a person authorised by the owner to exercise any right which would otherwise be exercisable exclusively by the copyright owner doing so in the exclusion of all other persons (including the person granting the licence). While non- exclusive licensee can exercise such right permitted to him but not in the exclusion of any other co-licensee or the author. See section 39 of the ACT
Another difference is an exclusive licence to do an act of which is controlled by copyright must be done in writing. Whereas non-exclusive licence may be written or oral and could be even inferred from conduct. See section 10 (3)&(4)
In this vein a person who is duly licensed or assigned by the author is capable to exercise the copyrights originally belong to the author including the right to sue for such copyright infringement.

EMPLOYER/PROPRIETOR
The original holder of the copyright may be the employer of the author rather than the author himself especially if the work is a “work for hire”. Therefore, where a 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 in a newspaper, magazine or similar periodical, the said proprietor is, in the absence of any agreement to the contrary, 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 been so published. See section 9(3) of the act.
This is the position in English law, The Copyright, Designs and Patents Act 1988 provides that if a copyrighted work is made by an employee in the course of that employment, the copyright is automatically owned by the employer which would be a “Work for Hire”.
Also section 11 the Gambian Copyright Act 2004 provides;
The copyright of a work shall vest in an employer or a person who commissioned the work if the employed author created the work
(a) in the course of his or her employment by the employer or person;
(b) under a contract of service; or
(c) on commission by the person who commissioned the work, in the absence of any enactment or contract to the contrary.
An Employer in this regard as the holder of the copyright, has the locus to sue for it’s infringement.

PUBLISHER
Although the author is deemed to be the first owner of the copyright of his work in particular, Publishers, printers, producers or manufacturers of works can maintain the copyright of the works published in their Journals, newspaper, magazine or periodical etc. See section 9(3) and 10(6) of the Act. In this circumstances they will therefore be deemed as co-owners thus share a joint interest in the whole or any part of a copyright. Therefore reserved the right to sue for the Infringement of their rights and also stand with the liberty to be joined as a party in a case instituted for the Infringement of such right. See section 15(2) of the Act.

GOVERNMENT Or INTERNATIONAL BODY
Pursuant to section 4(1) and 9(5) every work, which is eligible for copyright and is made by or under the direction or control of the Government, a State authority or prescribed international body. The Copyright conferred by the section 4(1) of the Act, is initially in the Government on behalf of the Federal Republic of Nigeria, in the State authority on behalf of the State in question, or in the international body in question, as the case may be, and not in the author.
It’s very clear that it is the Federal Government, State Government or the International Body in question that has the locus to sue for the infringement of it’s Copyright.

HEIRS/SUCCESSORS IN TITTLE
In the absence of the copyright owner his estate will stand on his behalf and exercise the rights that originally exercisable by him. Including his copyright as long as the copyright time is not expired as provide by the First Scheduleof the Act. See also sections 11(3) and 12(5) of the Act.

LIMITATIONS OF THE LOCUS STANDI
However there could be instances where even the original owner and indeed anyone holding the copyright be temporary bereft of the Locus Standi for the infringement of his right if he failed to fulfill any condition precedent laid down by the law and practice. For example section 15(2) requires any action by a copyright owner or an exclusive licensee relates to an infringement in respect of which they have concurrent rights of action, copyright owner or the exclusive licensee to join the other right holder as defendant or plaintiff or alternatively seek the leave of the Court. Failure to adhere with any of these conditions precedent will defer the Locus Standi of the plaintiff untill the condition precedent is duly adhered to. See the recent Court of Appeal decision in VISAFONE COMMUNICATIONS LTD v. MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE & ANOR (2018) LPELR-46791(CA) where His lordship OBASEKI- ADEJUMO J.C.A put it thus;

“it is clear that the Respondents operation comes under Section 17 and it must obtain approval from the commission to file an action. There is no disput that the fact of this case is infringement and the Respondents qualify under the Act.Therefore in the absent of an approval or exemption from the commission, the Respondents lacks legal right to file this action. The holding in the Compact disc case applies to this instant appeal. The Respondents therefore lacks locus standi and is caught by the Act”

More so the holder of the copyright may be denied locus on other procedural grounds it could be recalled that the United States Supreme Court had to in the LUMIERE V. MAE EDNA WILDER, INC., 261 U.S. 174 (1923), dismiss the case on the ground that ‘a person or corporation cannot file suits under the Copyright Act in areas in which they do not have an office and do no business.
It’s worthy of nothing that section 35 of the Act provides that;
In any action for an infringement of copyright in a work, the following shall be presumed, in the absence of any evidence to the contrary-
(a) the copyright subsists in a work which is the subject matter of an alleged infringement;
(b) that the plaintiff is the owner of copyright in the work;
(c) that the name appearing on a work purported to be the name of the author, is the name of such author;
(d) that the name appearing on a work purported to be that of a publisher or producer of a work is the name of such publisher or producer;
(e) where the author is dead, that the work is an original work;
(f) that it was published or produced at the place and on the date appearing on the work

Conclusion
To conclude but not to finish, Intellectual property is an invaluable property that law has to protect the same way it gives protection to physical properties. Although the Copyright is only intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. In Baker v. Selden, 101 U.S. 99 (1879), a leading Supreme Court of the United States copyright case The court held that a book did not give an author the right to exclude others from practicing what was described in the book, only right to exclude reproduction of the material in the book. Exclusive rights to an “useful art” described in a book was only available by patent. A copyright is therefore subject to certain limitations based on public interest considerations, such as the fair use doctrine. But the liabilities and the limitations or defences of Copyright liability will be best left as a topic of another discussion.

ABOUT THE WRITER

ALKASIM ABUBAKAR AAMG, is an enthusiastic law student of Ahmadu Bello University, Zaria, he has many publications in his name, for suggestions, correction or observations he could be reached via; [email protected]