Copyright Injunctions In Nigeria: Emergency Remedies And Their Strategic Use In Litigation

Introduction: Why Injunctions Matter in Copyright Cases

In protecting copyright following an infringement, timing is critical. Without swift legal intervention, infringing content can circulate widely, causing significant and often irreparable harm to the rightful owner. However, copyright owners are not without recourse. The Federal High Court¹, with divisions in each of the 36 states and the Federal Capital Territory, is empowered to grant urgent remedies, such as interim injunctions, to halt further unauthorised use of copyrighted works.

This article provides a practical guide to obtaining emergency injunctive relief in Nigeria for the protection of copyright.

Copyright Infringement

Copyright comprises a bundle of distinct, divisible rights that attach to qualifying works and enable the author, or any successor in title, to prevent others from reproducing, distributing, or otherwise using all or a part of the work without permission.² Under the Copyright Act, 2022 ("the Act"), protected works include literary, artistic, and musical works.³ These span books, music, paintings, sculptures, films, computer programs, databases, and technical drawings.⁴ Where a person unlawfully uses a copyrighted work, whether without authorisation, in breach of a licence, or otherwise, the owner may apply to a Federal High Court for an interim injunction to immediately safeguard their rights.

Interim/Emergency Injunctions

An injunction is an equitable remedy used to prevent irreparable harm, preserve the status quo, or protect a legal interest.⁵ Injunctions may be interim (granted where there is urgency and often without notice to the other party), interlocutory (pending the final determination of a lawsuit), or perpetual (as part of the final judgment). The Federal High Court, which has exclusive jurisdiction over copyright matters in Nigeria⁶, exercises discretion in granting interim injunctions in copyright action. Interim injunctions are particularly valuable in copyright disputes, where infringing materials can be quickly reproduced or disseminated, thereby undermining the applicant's case and rights. Practical uses include:

• To prevent a person from releasing unauthorised music, photograph, or to swiftly take it down.
• To stop pirated sales of movies, songs or other works.
• To prevent unauthorized printing or reproduction of books.
• To restrain online platforms or media houses from broadcasting unlicensed content.

How To Obtain an Interim/Emergency Injunction

An interim injunction may be sought by a motion ex-parte⁷, where there is urgency, and heard by the court without notice to the opposing party. It may be sought before, during or after trial.⁸ The motion paper will contain the prayers sought i.e., Plaintiff/Applicant is praying this honourable court for an order of interim injunction restraining the Defendants/Respondents from further distributing the musical works. Courts are careful to avoid granting interim orders that are unnecessarily broad or that affect parties who have not been given the opportunity to be heard. As such, the prayers should be well tailored to the need and unnecessarily broad prayer may lead to a refusal of the application. The scope must be carefully tailored to preserve the rights involved without infringing on due process.⁹

If granted, the injunction is in place until varied or discharged.¹⁰ The variation or discharge may be at the instance of the respondent/party affected. This is so as while the motion is heard and determined without notice, the interim order must be served on the affected party who then has 14 days to apply for the order to be varied or discharged.¹¹ The order may also be varied or discharged when a motion on notice for an interlocutory injunction is determined.

The motion ex-parte must be supported by an affidavit, setting out facts the applicant seeks to rely on, and a written address, setting out the legal arguments and authorities in support.¹² The affidavit must clearly show the following:¹³

1. An existing and viable copyright (via ownership or licence) in the subject matter.
2. A serious question or substantial issue or case to be tried.
3. Balance of convenience in favour of the applicant.
4. Existence of a real urgency that necessitates the grant of the application.¹⁴
5. The application was filed promptly and without undue delay.
6. Irreparable damage, loss, injury or serious mischief to the applicant if the order is not granted, ¹⁵
7. Undertaking as to damages.
8. Special circumstances.

First, the affidavit must show the basis of the applicant's copyright ownership in the subject matter. Where the purported right is not recognised under the Copyright Act, the application must fail.¹⁶ The court cannot grant the application where the applicant fails to establish a recognisable legal right. Second, the affidavit must show that the claim is not frivolous or vexatious but presents a serious question or substantial issue or case to be tried.¹⁷ Third, in weighing the convenience to either party, the court must satisfy itself that the comparative mischief, hardship, or the inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposing party if granted.¹⁸ A great inconvenience would be a disadvantage which cannot be compensated with money.¹⁹ Fourth, the applicant must show real urgency as determined by the event sought to be restrained by the injunction.²⁰ Where, for example, an interim injunction is sought to restrain a music release four months later, same will not be deemed urgent as an application on notice can be made and determined within this period. Fifth, the promptness with which the application is presented must be apparent. However, a due delay may be explained such as where the applicant had sought to engage in settlement discussions to no avail or notice of the infringement was not immediate.

Sixth, the affidavit must show that the anticipated loss, injury or mischief goes beyond financial compensation and includes harm that is incapable of being remedied by damages which, if not urgently restrained, would render any future judgment ineffective.²¹ Seventh, the applicant must undertake to indemnify the affected party if it turns out the order should not have been granted. This undertaking should not be taken likely as a court may, where it is determined that the injunction was baseless, enforce the undertaking as to damages and thereby require the applicant to pay for damages caused to the respondent. Finally, special circumstances is an omnibus principle allowing the court to consider any other factor in determining the application. In sum, in granting or refusing the application the court will conduct a wholistic assessment of the conduct of both parties. A refusal is likely if a grant would appear to be unjust or highly unreasonable to grant having regard to the well-known equitable considerations such as hardship or balance of convenience or such other matters.²²

In addition, documentary evidence to support each fact is essential to increase chances of success. A barebone affidavit, without documents supporting each crucial fact, may lead to a denied application. Further, motion on notice must be filed with the motion exparte.²³ Both of which will accompany the originating processes (e.g., writ of summons or originating summons), which may include a claim for an injunction.²⁴

A specialised form of interim injunction available in copyright litigation is the Anton Piller Order.²⁵ This is an injunction that allows the applicant to enter another's premises without notice to search for and seize infringing materials or other evidence at risk of being concealed or destroyed.²⁶ It is a powerful tool for preserving evidence in cases where the respondent may otherwise frustrate the proceedings. To obtain an Anton Piller order, and in addition to the aforementioned factors, the applicant must also show that the respondent has incriminating document, and there is a real possibility that they may destroy the material before the discovery process.²⁷

Another notable interim remedy available in copyright litigation is the Mareva injunction²⁸, used to prevent an infringer from dissipating assets in a way that could frustrate the enforcement of a future judgment. A Mareva injunction is particularly useful where there is a genuine concern that the infringer or another is likely to conceal or dispose of assets to avoid liability.

The court may do any of the following after considering the motion for an interim injunction, Anton Piller order or Mareva injunction:

1. Grant or refuse the relief as prayed.
2. Direct that the motion be made on notice to the respondent.
3. Issue an order to the respondent to show cause why the relief should not be granted.²⁹

Where granted, an injunction must be strictly complied with, and any disobedience may amount to contempt of court. However, a respondent or affected party can do any of the following: if the order is granted, they can file a motion to vary or discharge within 14 days of service; if the motion is made on notice following the court's direction, the respondent or affected party can file a counter affidavit and written address in opposition; and if an order to show cause is issued, the respondent or affected party may file an affidavit to show cause, stating why the application should be refused.

It is important to emphasise that interim injunctions are intended as emergency measures for the swift intervention of the court to preserve the subject matter or protect rights for a stated period or until a motion on notice can be heard. The application must not be used to stifle legitimate proceedings, delay justice, or abuse the court process. Frivolous or abusive applications are liable to be struck out with costs.

Risks of Wrongful Injunctions

Due to its nature as an emergency remedy determined without notice to the other party, there is a risk that an injunction may be granted wrongfully. These risks include:

1. Miscarriage of Justice: Wrongful injunctions may obstruct the fair trial of a substantive suit, leading to unjust outcomes. See Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 where the Supreme Court warned that injunctions must be granted cautiously, as improper grants can result in grave injustice.
2. Infringement of Legitimate Rights: An unjustified injunction can improperly restrain a party's legal business or property rights. The court always stress that injunctions must be resorted to where there are serious questions to be tried and the balance of convenience supports it.
3. Waste of Judicial Resources: Faulty injunctions often lead to avoidable appeals and prolonged litigation/proceedings.
4. Potential for Abuse: Injunctions may be abused by litigants seeking to delay justice or gain unfair leverage. There is the need for due diligence, proper party joinder, and adequate evidence to avoid abusive applications.
5. Financial and Reputational Loss: Wrongful injunctions may cause loss of income, damage to reputation, and legal costs. Courts must ensure that the injunctive relief is supported by credible evidence and proper discretion.
6. Liability of the Applicant: Where it is determined that the injunction was baseless, the court may enforce the undertaking as to damages and thereby require the applicant to pay for damages caused to the respondent.

Practical Tips for Enforcement

Additional considerations must also be adopted to fully utilise an injunction and prevent a refusal:

1. Demonstrate Clear Property or Interest in the Subject Matter: To enforce an injunction, the applicant must establish a genuine property, right, or interest in the subject matter.³⁰
2. Serve the Court Writs and Order(s) Properly: It is vital to obtain a valid court order or writ of enforcement. Court judgments/injunctions once granted are enforceable, but their enforcement must be carried out within the bounds of judicial procedure to avoid contempt.³¹
3. Be Clear and Specific in the Injunction: Clearly describe the infringing works, the restrained parties, and the prohibited acts to avoid ambiguity. And ensure that (when urging the court to grant the orders as prayed in the application) such prayers are not contrary to public policy and good conscience.³²
4. Apply for Ancillary Orders (if needed): Use Anton Piller (search and seizure) or Mareva (asset freeze) orders to protect evidence or secure relief where necessary.³³
5. Notify Third Parties: Inform distributors, vendors, and platforms to prevent indirect infringement and enhance compliance.
6. Engage Enforcement Authorities: Work with the police or court sheriffs for execution of orders involving seizures or physical enforcement.
7. Notify Regulators/Public: Engage the Nigerian Copyright Commission or issue notices to deter future violations and raise awareness.

Conclusion

Injunctions are powerful emergency remedies that serve to immediately halt infringement and preserve the subject matter of litigation. When strategically deployed, backed by clear evidence, proper procedure, and diligent enforcement, they protect creators' rights, prevent irreparable harm, and reinforce the authority of the court.

Footnotes

1. Section 251(1)(f), Constitution of the Federal Republic of Nigeria 1999, as amended

2. Bankole Sodipo, Copyright Law: Principles, Practice & Procedure (2nd ed, 2017), p. 6

3. Section 2 of the Copyright Act, 2022

4. Section 108 of the Copyright Act

5. See Kotoye v. C.B.N., (1989) 1 NWLR (Pt. 98) 419 at 441–442.

6. Section 251(1)(f), Constitution of the Federal Republic of Nigeria 1999, as amended

7. Order 28(1)(2) of the Federal High Court Rules, 2019 [which states the application may be made ex-parte where the case is urgent]

8. Order 28(1)(1) of the Federal High Court Rules, 2019 [which states a party to an action may apply for a grant of an injunction before, during or after trial]

9. See, for example, in Globe Fishing Industries Ltd v. Coker (1990) [The court dismissed interlocutory orders where the scope of the orders were overly broad, emphasizing that the nature and scope of injunctions depend heavily on the specific facts of each case and the need to preserve the res or prevent infringement.]

10. Order 26(10)(1) of the Federal High Court Rules, 2019

11. Order 26(10)(2) of the Federal High Court Rules, 2019 [which states a party or person affected by the order may apply to the court within 14 days of service to vary or discharge the order]

12. Order 26 Rule 3 of the Federal High Court Rules, 2019.

13. See U.T.B. Ltd. v. Dolmetsch Pharm. (Nig.) Ltd., (2007) 16 NWLR (Pt. 1061) 520, Kotoye v. C.B.N, (1989) (NWLR (Pt.98) 419

14. Order 26 Rule 6(1) of the Federal High Court Rules, 2019.

15. Order 26 Rule 6(1) of the Federal High Court Rules, 2019.

16. A.G. Lagos v. A.G. Federation, (2004) LPELR-10 (SC), Per Niki Tobi, JSC at pages 97 - 98 Paras G - B) [holding that a legal right is a right "recognised by law and capable of being enforced by the plaintiff."]

17. Okomo & Ors v. Umoetuk & Ors., (2003) LPELR-7231(CA) [holding that in determining a serious question, the "court must be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be tried."]

18. See Kotoye v. C.B.N., supra [holding that balance of convenience, "means that more justice will result in granting the application than in refusing it."]

19. Molokwu & Ors v. Obiudu & Ors, (2014) LPELR-22863(CA), the Court of Appeal, per Mshelia, J.C.A. (Pp. 32-33, paras. D-C) [holding that "balance of convenience is the disadvantage to one or the other side which damages cannot compensate. The applicant must prove that the balance of convenience is on his side]

20. Kotoye v. CBN supra at page 440 para E [holding that "what is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side."]

21. Kpogban v. Ojirigho, (2000) 1 NWLR (640) 212 @ 219 [holding that an interlocutory injunction should only be granted where the plaintiff would suffer harm that cannot be adequately compensated by damages if the injunction is refused, and where any loss the defendant may suffer from the injunction can, in turn, be adequately remedied under the plaintiff's undertaking as to damages.]

22. Adeleye & Ors v. The Executive Governor of Ogun State, (2012) JELR 34856 (CA)

23. Order 26 Rule 5(3) of the Federal High Court Rules, 2019.

24. Order 28 Rule 1(3) of the Federal High Court Rules, 2019.

25. Order 26 Rule 6(2) of the Federal High Court Rules, 2019.

26. Ugochukwu v. Nigerian Copyright Commission, (2022) JELR 110845 (CA)

27. Order 26 Rule 6(2)(c) of the Federal High Court Rules, 2019.

28. Mareva Compania Naviera S.A. International Bulk Carriers S.A. (1975) 2 Lloyd's Report 509 at p. 510 per Lord Denning, (1980) 1 All ER. 213.

29. Order 26 Rule 8 of the Federal High Court Rules, 2019.

30. See Abubakar & Ors v. Jos Metropolitan Development Board & Anor, (1997) JELR 45419 (CA)

31. See Ladunni v. Kukoyi & Ors, (1972) JELR 37023 (SC)

32. See Adeleye & Ors v. The Executive Governor of Ogun State, supra

33. Mareva Compania Naviera S.A. International Bulk Carriers S.A., supra.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.