7th November 2019
A BRIEF REVIEW OF THE NIGERIAN DRAFT COPYRIGHT BILL 2015
As a part of the reformation of the copyright system in Nigeria which commenced in November 2012, the Nigerian Copyright Commission ("NCC") constituted a committee consisting of some of its officials and representatives of the relevant IP professional bodies to undertake the task of drafting a new Copyright Bill. The committee published the draft Bill on 30th October 2015 ("The Bill" or "Copyright Bill"), comprising of 88 sections and divided into 11 parts. The Bill had been approved by the Federal Executive Council and was awaiting passage into law by the National Assembly and eventual assent by the president prior to the dissolution of the 18th National Assembly. It now appears that legislative review of the bill would have to re-commence afresh.
According to the introductory note to the Bill, the main objective of the reform is to "reposition Nigeria's Creative industries for greater growth; strengthen their capacity to compete more effectively in the global market place; and enable Nigeria to fully satisfy its obligations under the various International Copyright Instruments, which it has earlier ratified or indicated interest to ratify."2 The introduction of this Bill was necessitated by the need to repeal the outdated Copyright Act of 19883 and to upgrade the copyright legislation in Nigeria to catch up with the constant development of digital technologies and current needs of copyright protection in the world.
REVIEW OF THE BILL
Although the Bill is essentially derived from the current Copyright Act 1988 ("The Act" or "Copyright Act"), there are a handful of noticeable differences. The Bill tries to make up for loopholes in the Act and to improve on the protections accruing to copyright owners thereby encouraging creativity and innovation as well as enabling the developmental growth of the Nigerian economy.
The Bill introduces certain new provisions, particularly as it relates to IP protection in the digital space. It also amended/modified some existing provisions and totally expunged some of the provisions in the Copyright Act. Some of the key provisions in the Bill include:
Although it is general knowledge that copyright protection is automatic upon the creation of the work and there is no requirement for registration or other formalities before legal protection can be conferred, this position is formally stipulated under section 3 of the Bill for the first time. The section provides that copyright protection under the Bill shall not be subject to any formalities.
- EXCEPTIONS TO COPYRIGHT CONTROL
- With respect to the defence of Fair Use, the Bill introduces factors to be considered in determining whether a particular use of a copyrighted work amounts to fair use or not. These factors include:
- The nature of the work
- The amount and substantiality of the portion used in relation to the work as a whole;
- The effect of the use upon the potential market for or value of the work; and
- If the use does not conflict with a normal exploitation of the
work and does not unreasonably prejudice the legitimate interests
of the owner of copyright.4
- Special provisions for archives, libraries, museums and galleries was introduced in section 21 of the Bill.
- Section 22 also makes provisions for Special exception to the use of copyrighted works by Blind, Visually Impaired or other print Disabled persons.
- OWNERSHIP OF COPYRIGHT IN COLLECTIVE WORKS
The Bill provides that unless otherwise provided by agreement, copyright in a collective work shall vest in the natural or legal person on the initiative and under the direction of whom the work has been created. It further provides that the authors of the works incorporated in a collective work shall, unless otherwise agreed, retain the exclusive right to exploit their works independently of the use of the collective work.5
- COMPULSORY LICENCE FOR PUBLIC INTEREST
The Nigerian Copyright Commission (NCC) is empowered under the Bill to authorize the use of copyrighted material by any person for the purposes of:-
- rectifying an abuse of dominant market position;
- to remedy abuse of rights; and
- to promote public interest.6
The following factors must, however, be taken into consideration by the NCC before the authorization of a compulsory license. These are:
- That prior to such use, the proposed user has made efforts to obtain authorization from the owner of the protected material on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period. This condition may be waived by the NCC in the event of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial uses;
- The owner of the copyright is accordingly notified;
- The scope and duration of such use shall be limited to the purpose for which it was authorized;
- Such use shall be non-exclusive and non-assignable;
- Any such use shall be authorized exclusively for the domestic market;
- Subject to adequate protection of the legitimate interests of the persons so authorized, the authorization maybe terminated if and when the circumstances which led to it being granted ceases to exist and are unlikely to recur;
- Payment of adequate remuneration to the copyright owner, taking into account the economic value of the work authorized to be used.7
5. AIDING AND PROCURING COPYRIGHT OFFENCES & SECONDARY LIABILITY
Any person who aids or procures another person to commit an offence under the Bill is deemed to be guilty of an offence and shall be liable upon conviction to the same punishment as is prescribed under the Bill for the commission of the main offence.8
- PROVISIONS RELATING TO ONLINE CONTENT
This provision is perhaps the major important innovative provision included in the Bill. This is because for the first time, the Nigerian copyright legislation not only caters for the protection of works produced and exchanged over the internet, it also recognizes the menace of digital infringement of copyrights and consequently makes provision for remedies. The Bill makes provision for, inter alia, the following:
- Take Down of Infringing Content
The owner of an infringed copyright work is entitled to issue a notice in writing of such infringement to the appropriate internet service provider ("ISP") requesting for the take down or to disable access to the infringing content or link to such content hosted on its system.9 Upon receipt of such notice, the ISP shall promptly notify the subscriber responsible for the infringing content informing him or her of the notice. If after 10 days, the subscriber fails to provide justifiable reasons for continuing to keep the infringing content, the ISP is empowered to take down or disable access to such infringing content and thereafter notify the copyright owner. Conversely, where the subscriber provides a justifiable reason for not removing the infringing content, or where the ISP is convinced that the complaint of the alleged copyright owner is without merit, the ISP shall promptly inform the copyright owner of his decision not to take down the content.10
- Suspension of Accounts of Repeat Infringers.
The ISP, upon receipt of notice of repeat infringement of a copyright work, shall suspend the account of the alleged repeat infringer for at least one month after sending him or her warnings to that effect. A subscriber receiving such a warning may challenge the notice on grounds of mistake or misidentification.11
- Blocking Access to Online Content etc.
Under the proposed amendment to the law, the NCC has the power to block or disable access to any content or link, hosted on a system or network, which it reasonably believes to infringe the rights of copyright owners.12
- APPOINTMENT OF DIRECTOR GENERAL OF THE NCC
In addition to the criteria for the appointment of the Director-General (DG) of the NCC, the Bill provides that the DG must also be a legal practitioner with not less than fifteen (15) years post-call experience and must be knowledgeable in copyright law and administration.13 The Bill also modifies the criteria for membership of the governing board of the NCC.14
- REGULATION OF A COLLECTIVE MANAGEMENT
- Section 74 allows for the establishment of a collective management (CMO) for the management of the rights of copyright owners upon the approval of the NCC.15
- Any organization that operates as a CMO without the approval of the NCC, shall be guilty of an offence and shall be liable on conviction to a fine of N500,000.00 or to imprisonment for a term not exceeding three years or to both such fine and imprisonment.16
- Where the above contravention is by a body corporate, it shall be guilty of an offence and liable to a fine not exceeding N2,000,000.00.17
- ESTABLISHMENT OF A DISPUTE RESOLUTION PANEL
The NCC has the discretion under the Bill to constitute a dispute resolution panel charged with the responsibility of resolving disputes relating to the payment of royalties or terms of a license or any other matter as maybe authorized by the NCC. The panel shall comprise of three persons knowledgeable in copyright matters. Any person dissatisfied with the decision of the panel may appeal to the Federal High Court.18
The Federal High Court shall have exclusive jurisdiction for the trial of offences and the trial of offences shall be by summary trial.19
The Draft Copyright Bill is indeed an improvement on the current Copyright Act. The Bill takes into consideration some modern exigencies which have since affected and are still affecting copyright protection since the enactment of the Copyright Act in 1988. It is commendable that steps have been taken to incorporate solutions to contemporary issues as it relates to the infringement of intellectual property rights over the internet. When finally enacted, the provisions of the Bill will, to a large extent, better protect owners of copyrighted works.
However, the Bill still omits certain important provisions on copyright protection. Although the growth of digital technologies and the perpetually growing internet in modern times has greatly enhanced copyright development, unfortunately, it has also fostered the ease of infringement of copyright works. The porosity of the digital environment has greatly encouraged wide-spread sharing of protected works mostly without authorization and the provisions of the Copyright Bill is inadequate to counter copyright piracy especially infringement in cyberspace. 20
Firstly, we recommend that the committee responsible for reviewing the Bill should comprise of experts in information and digital technologies. The input and technical knowledge brought by these experts will be impactful in understanding and re-drafting provisions of the Bill that will not only adequately cater for the protection of copyright in a digital work but also more effectively prevent the violation of the rights in such works.
Nigeria can take a cue from countries like the USA where special protection is accorded to digital works by the enactment of several legislations such as the Digital Millennium Copyright Act of 1998,21 and enact a similar legislation protecting digital works in Nigeria. Alternatively, the Bill should be amended to reflect special protections for digital works, and it should also include stricter penalties for piracy and other forms of copyright infringement through digital means. This will serve as a more effective means of deterrence.
In addition, the government should domesticate some of the international treaties to which Nigeria is a signatory as this will assist in giving copyright owners better protections over their creations.22
One of the major debates currently disrupting the global copyright landscape is the ownership of computer-generated works especially by Artificial intelligence (AI). While some countries are contemplating attributing copyright to AI,23 countries like the UK and USA currently attribute copyright protection over such works to the human authors responsible for inventing the AI.24 The debates are still on-going as to whether an AI should be able to claim copyright over works it creates especially where the creator of the AI did not envisage the creation of such work or there was no direct human contribution in the creative process. Although Section 24(1) of the Copyright Bill only states that copyright in a work shall vest in the author, by virtue of sub section (2) and section 25(1), it may be inferred that the "author'' in Section 24 above refers to a human being or the artificial entities recognized under the Act.25 The Bill makes no further provision for ownership of computer-generated works or for a work jointly authored by a human being and a sentient machine. In light of the above, it is therefore pertinent that the Bill makes clearer provisions on the authorship of these unique works, especially as it relates to works created by computers/ Artificial Intelligence.
With respect to the collective administration of copyrighted materials in Nigeria, further legislative work is required to address the challenges occasioned by the current Copyright Act on the appointment of sole collective management societies in the various genres of protected works.26 The lingering disputation between the Copyright Society of Nigeria (COSON) and the Musical Copyright Society of Nigeria (MCSN), the recent suspension of COSON and authorization granted to MCSN to function as a collecting society by the Commission are a reflection of the multiple challenges faced by copyright owners, managers and stakeholders in this area. Furthermore, the recent decisions of the Nigerian Supreme Court in Adeokin Records27 and Compact Disc Technology Ltd.,28 have also introduced additional complexities deserving of urgent legislative attention.29
It is recommended that since the Bill is yet to be enacted, it should be withdrawn from the legislative House and reviewed to accommodate modern developments in the field of copyright law and administration, before it is eventually passed into law.
1 Oluwafunmilayo Mayowa, NYSC Intern SPA Ajibade & Co., Lagos, NIGERIA.
2 See http://graduatedresponse.org/new/wp-content/uploads/2016/02/DRAFT_COPYRIGHT_BILL_ NOVEMBER-_2015.pdf
3 Cap C28 Laws of the Federation of Nigeria 2004.
4 Section 22 of the Bill. These four factors were derived from the opinion of Judge, Joseph Story, in Folsom v. Marsh 9.F. Cas 342 No. 4901 (C.C.D. Mass. 1841), which is widely regarded as the first "fair use" case in the United States. These factors were later statutorily recognized under the US Copyright Act 1976 codified at 17 U.S.C S. 107.
5 Section 24 supra.
6 Section 31(1).
7 Section 32(2).
8 Section 39.
9 Section 47. Note similar provisions contained in the earlier Nigerian Communications Commission
''Guidelines for the provision of Internet Services" published pursuant to Section 70(2) of the Nigerian Communications Act 2003, available at:
10 Section 48.
11 Section 49.
12 Sections 54.
13 Section 71(1).
14 See section 70.
15 The CMO is known as 'Collecting society' under the Copyright Act 1988.
16 Section 74(5) supra. Under the current Act, the fine is N1,000.00 upon first conviction and N2,000.00 upon subsequent conviction or terms of imprisonment not exceeding 6 months or both.
17 Section 74(6). Under the current Act, the fine is N10,000.00 on the first conviction and N2,000.00 for each day on which the offence continues.
18 Section 76. See also the Copyright (Dispute Resolution Panel) Rules 2007 contained in the Second Schedule of the Copyright Collective Management Organisations) Regulations 2007. The Rules outlines detailed provisions on commencement of proceedings, the constitution of the panel etc.
19 Section 81.
20 See John Onyido, (2019), "Copyright in the Digital Age" (unpublished Keynote address delivered at the University of Ilorin Intellectual Property Summit) available at http://www.spaajibade.com/resources/copyright-in-the-digital-age-keynote-address-at-the-university-of-ilorin-intellectual-property-summit-2019-john-onyido/ accessed 20th October 2019.
21 Digital Millennium Copyright Act of 1998 Pub. L. No. 105-304, 112 Stat. 2860 (Oct. 28, 1998).
22 Particularly the WIPO Copyright Treaty and the WIPO performances and Phonogram Treaty (popularly called the "Internet Treaties"). The Treaties set down international norms aimed at preventing unauthorized access to and use of creative works on the Internet or other digital networks. For further reading, see ''WIPO Internet Treaties" available at https://www.wipo.int/copyright/en/activities/internet_treaties.html accessed 24th October 2019. See also the 2019 EU Directive on Copyright in the Digital Single Market.
23 It is worthy of note that Saudi Arabia has conferred citizenship on an Al robot named Sophia and there is the possibility that Sophia would be accorded copyright over her creations.
24 See Section 178 of the Copyright, Design and Patent Act 1988 UK.
25 See Section 2 of the Copyright Act supra.
26 Section 39 of the Copyright Act.
27 Adeokin Records v. Musical Copyright Society of Nigeria, (2018) SC 336/2008.
28 MCSN v. Compact Disc Technology Ltd. & Anor., (2018) SC 325/2010.
29 See generally, John Onyido, "Administration of Collective Management Organisations in Nigeria: Lessons from United States, United Kingdom, Europe and Canada" Keynote Address delivered on the occasion of the 30th Anniversary celebration of the Nigerian Copyright Commission (NCC), Abuja, August 2019.
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