WHAT IS THE POSITION OF LAW ON INFRINGEMENT POSED ON COPYRIGHT?

Copyright infringement, sometimes known as piracy, is the unlawful and unauthorized use of works protected by Copyright, as well as the exploitation of Copyright owners' rights.

CHAMAN LAW FIRM

6/16/2022 5 min read

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WHAT IS THE POSITION OF LAW ON INFRINGEMENT POSED ON COPYRIGHT?

Copyright infringement, sometimes known as piracy, is the unlawful and unauthorized use of works protected by Copyright, as well as the exploitation of Copyright owners' rights. These exclusive rights includes the right to do or authorize the reproduction, performance, publication and distribution of a work. This is well provided for in section 5, 6 and 7 for Literary, Artistic, Sound Recording and Broadcast respectively.

Infringement of rights in the creative sector thwarts the achievement of copyright's public-interest goal of encouraging more creation to enrich the realms of education, information, entertainment, and culture. As a result, where there is an infringement, judicial intervention is required to provide an acceptable remedy.

LEGAL POSITIONS ON INFRINGEMENT

In the United States, a registered Copyright is protected under the Federal Copyright Act, which is the main set of laws that govern copyright infringement. Copyright infringement is a federal tort. In South Africa, Copyright is protected under Copyright Act No 98 of 1978 and unlike any other Intellectual property rights, copyrights do not need to be registered to be protected.

The World Intellectual Property Organization (WIPO) also administers several international treaties with regards to Copyright. Some of these treaties include WIPO Copyright Treaty (WCT), Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, Berne Convention for the Protection of Literary and Artistic Works, amongst others.

Many of these treaties will only be effective in Signatory Member States. This means that, regardless of the connecting factor, all works are protected equally in Member States. If Nigeria signs a treaty with the United States, for example, every copyrighted work is protected in the United States as well.

WIPO has a forum known as Standing Committee on Copyright and Related Rights (SCCR) where member states meet to discuss, debate and decide on issues related to the development of balanced international legal frameworks for copyright to meet society's evolving needs.

NIGERIAN POSITION

The Law which makes provisions for transfer, protection, infringement and remedies for Copyright in Nigeria is the Copyright Act LFN 2004 through the regulatory agency known as Nigerian Copyright Commission (NCC). Section 16 of the Copyright Act provides that an action for infringement of Copyright shall be actionable at the suit of the owner, assignee, or an exclusive licensee of Copyright in the Federal High Court exercising jurisdiction in the place where the infringement occurred.

Furthermore, there are both Civil and Criminal remedies for an action in Infringement. In Civil action, all reliefs by way of damages, injunctions, accounts, or otherwise shall be available to the plaintiff. Meanwhile in a Criminal action, the Government through the Nigerian Copyright Commission prosecutes the offender and is eventually penalized or fined. However not every work qualifies to be protected under the Nigerian Copyright Act.

BASIC REQUIREMENT TO SUCCEED IN A SUIT FOR INFRINGEMENT UNDER NIGERIAN COPYRIGHT ACT.

Copyright must subsist in the work allegedly infringed. Importantly, the subject matter must be classified among Classes of works provide for under Section 1(1), these includes

(a) Literary works;

(b) Musical works;

(c) Artistic works;

(d) Cinematograph works;

(e) Sound recording; and

(f) Broadcasts.

Works outside this scope won't be protected by Copyright, but might fall other the protection of Patent, Trademarks.

Secondly, ownership must be vested in the plaintiff. If otherwise, the plantiff has to prove that He has acquired right to institute proceeding either by License, Assignment or Operation of the Law. Section 15(1) provides that infringement of copyright shall be actionable at the suite of the owner, assignee or an exclusive licensee of the copyright.

In addition to this, the plaintiff must proof ownership by either way of first authorship or by acquisition either by way of License, consent or assignment.

Not only must a plaintiff show that Copyright subsists in the disputed subject matter, it must also be shown that the defendant has done act in relation to the work which is exclusive to the plaintiff alone. These includes rights vested under S. 6, 7 and 8 Reproduction, publication, commercialisation, distribution amongst others.

Thus, a work will not be regarded as infringed if such a work is open to the public domain for use for instance, governmental purposes, Academic Research and others, this is provided for under Section 14(2) (a) and (b). Item b provides that the public records of a State, being records for storage or custody of which provision is made by law, the copyright in the work is not infringed by the making or the supplying to any person, of any reproduction of the work in pursuance of that Act or law.

Finally, it must be proved that the defendant has no authority to do the act complained of, that the access to the work is unauthorized.

PROOF OF INFRINGEMENT

There are two ways to prove infringement: casual connection and substantial taking. The plaintiff bears the burden of proof in demonstrating a relationship between the works, expression similarities, and whether his or her own work predates that of the defendant and was accessible to the defendant.

Second, the plaintiff must show that the defendant plagiarized a significant portion of his work. Quality is prioritized over quantity since it is the heart or defining feature of a work.

CIVIL REMEDIES

One of the remedies available to a person whose work has been infringed is for the court to order an Account of Profit prepared by the infringement, which requires the infringer to account for all sales or profits made on the copyrighted work and restore those profits to the work's owner.

This is only used where the infringer was completely unaware that the work in question was protected by copyright.

Additional, another option is to assert conversion rights under Section 16 of the Copyright Act, which entails claiming the right to have all infringing materials surrendered or converted to the Copyright Owner.

Other options include:

1. Damages in the form of examples, general or specific damages

2. An interlocutory or interim injunction

3. Anton pillar order, which is an inspection and seizure order.

CRIMINAL LIABILITY

Infringement can result in penalties and prison time if it is prosecuted as a criminal offense. The Nigerian Copyright Commission is the prosecutor. It's worth noting that pursuing a criminal case does not preclude the copyright owner from pursuing a civil case.

Moreover, the defendant can claim that he or she had no knowledge of the violation of copyright work or materials used as a defence.

CONCLUSION

Finally, the Nigerian law not only creates an environment conducive to the growth of ideas, but also assures that these ideas are protected from unauthorized use. The Copyright Act protects subject matter that falls within the categories of literary, artistic, musical, sound recording, cinematograph films, and broadcast as well as original in expression and fixed in a definite medium.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

TEL: 08065553671, 08024230080