Nigeria: An Overview Of The Significant Innovations Introduced By The Copyright Act 2022

Introduction

The Copyright Act is one of the critical pieces of legislation which provides a comprehensive framework for the regulation, protection, and administration of copyright and other related matters in Nigeria through the promotion of creativity, innovation, and investment in the country's creative industries. Copyright has proven to be a useful tool for safeguarding inventors' and creators' exclusive rights to the invention, publication, transfer, and use of their intellectual property.

On 17th March 2023, the President of the Federal Republic of Nigeria signed the Copyright Bill into Law; the Copyright Act 2022 ("the Act or the new Act"). This Act repeals the Copyright Act, Cap C28, Laws of the Federation of Nigeria ("the 2004 Act or the Old Act"), providing for the regulation, protection, and administration of copyright. The Act is aimed at re-invigorating Nigeria's creative economy and making it more globally relevant in the digital age. The Act expands the rights of authors, raises the sanctions for infringements, and more pointedly addresses the issues surrounding the exploitation of digital and online use of copyright works.

Innovations made by the new Act; Comparative Analysis vis-à-vis the 2004 Act

Though the Act has adopted most of the provisions contained in the 2004 Act, the Act has introduced some significant provisions highlighted below:

1. Objectives of the Act

This is a new introduction as the old Act did not make any provisions pertaining to objectives. The Objectives of the Act are set out as follows:

a. Protection of the rights of authors to ensure just rewards and recognition for their intellectual efforts;

b. Provision of appropriate limitations and exceptions to guarantee access to creative works;

c. Facilitation of Nigeria's compliance with obligations arising from relevant international copyright treaties and conventions; and

d. Enhancement of the capacity of the Nigerian Copyright Commission ("NCC") for effective regulation, administration, and enforcement of the provisions of this Act.¹

Setting out the objectives in clear terms would serve as a useful guide in the interpretation of the Act. As demonstrated in the objectives, the Act also seeks to ensure that reasonable access to creative works is granted as such access would generally drive innovation in the larger society. The Act has also incorporated the essence of the World Intellectual Property Organisation ("WIPO")'s internet treaties protecting digital works, performance rights, technological protection measures, etc. The Act also broadens the powers of the NCC to advance the course of creatives through the implementation of the provisions of the Act. Relevant provisions have been made which empower the NCC to investigate and redress/settle issues arising from copyright disputes where those disputes have not been specifically reserved for settlement under the Act² . These quasi-judicial powers would help reduce the number of copyright litigations handled by the Federal High Court.

2. No Formality required for Eligibility of Copyright

Section 4 of the Act states that eligibility for copyright under the Act shall not require any formality. This section did not exist in the 2004 Act. While the 2004 Act did not require that a work had to be registered before copyright in the work could inure to the owner, this position was not expressly stated. However, this section has been included in the new Act, to clear any doubts (that hitherto existed) on the point that not having a work registered does not limit the owner's copyright in the work.

The Act also makes a new provision for the registration of works3 , to the effect that the NCC is to establish and maintain a Register of Works ("the Register"). Of much significance is the provision of Section 87 (4) of the Act which provides that a certified true copy of the extract of the Register shall be admissible evidence (albeit, rebuttable) of the work in any proceeding and in such instance, there would be no need for the author to further prove or produce the original of the certified work. In particular, Section 43 of the new Act outlines the following as specific presumptions that can be made where a work has been registered under Section 87;

a. That copyright subsists in the work which is the subject matter of an alleged infringement;

b. That the name appearing on the work as the name of the author is the name of such author;

c. That the name appearing on the work as that of the publisher or producer of the work is the name of such publisher or producer;

d. Where the author is dead, that the work is an original work; and

e. That it was published or produced at the place and on the date appearing on the work.

3. Right to Remuneration for Broadcasting of Sound Recordings

The 2004 Act did not make provision for remuneration for broadcasting of sound recordings. However, the Act, by Section 15 has sought to protect the interest of performers and owners of copyright in sound recordings by providing that where a sound recording has been published for commercial purposes, the performer and owner of copyright of such sound recordings shall enjoy the right to equitable remuneration for any broadcast of the sound recording. The amount of remuneration and the conditions of payment shall be as agreed between the users of sound recordings, the performer and owner of copyright in sound recordings on the other hand, or their representatives. However, in cases where the parties fail to reach an agreement, the renumeration shall be determined by the NCC.⁴ It is the writer's considered view that the Act should have proactively set a minimum threshold renumeration to effectively protect authors/copyright owners of sound recordings from unfair contracts for example, to cater to instances where a party may be contracting from a position of undue advantage.

4. Definition of Terms; Recognition and Inclusion of Digital Works

The 2004 Act defined the word "copy" in Section 51 (the interpretation section) as a reproduction in written form, in the form of a recording or cinematograph film, or in any other material form. While Section 108 of the Act defines the word "Copy" to mean a reproduction in any form including a digital copy. The explicit recognition of digital copies in the new Act is a welcome development given the prevalence of social media hype with the attendant era of digital content creation.

Also, the words "audiovisual works" has been used to replace Cinematographic films⁵ in the list of works eligible for copyright protection under the Act⁶ . This is very significant as the definition of cinematographic films was very limiting and could not meet the current technological advancement and realities of the 21st century. Section 108 of the Act defines audiovisual work as the aggregate of a series of related visual images with or without sound, which is capable of being shown as a moving picture by means of a mechanical, electronic or other device and irrespective of the nature of the material on which the visual images and sounds are carried. By Section 11 of the Act, the author of an audiovisual work is granted the exclusive right to reproduce, publish, communicate, distribute, adapt, transfer, transmit, etc., the audio-visual work.

5. Collective Management Organisations ("CMOs")

Section 39 of the 2004 Act made provision for Collecting Societies with powers and responsibilities to manage the rights of copyright owners. However, the Act under Section 88 has replaced the word "Collective Societies" with "Collective Management Organisations" availing the CMOs similar powers as those of the erstwhile Collecting Societies. The Act extended the powers of CMOs to include the powers to grant licenses, permitting the use of works of owners of copyright who are not members of the CMO, subject to the provisos made in the section. The Act also made extensive provisions for the powers of the NCC in regulating the CMOs, which powers include the powers to:

a. Suspend or revoke the license granted to the CMO by the NCC

b. Review and approve tariffs as may be determined by a CMO; and

c. Make regulations specifying the conditions necessary for the effective management of CMOs⁷

d. Creation of Non-Exclusive Licenses for Commissioned art and audiovisual works

The 2004 Act as well as the Act, recognizes the photographer as the owner of the copyright in photographs. However, the new Act, by Section 28, has created a non-exclusive license in favour of the person who commissions photographs, paintings, drawings, or audiovisual works for private or domestic purposes for non-commercial use of the work without reference to the photographer who is the copyright owner. The person who commissioned the work is also entitled to restrain the publication, exhibition, broadcasting, communication, distribution, and making available copies of the work to the public unless there is a written agreement to the contrary.⁸

7. Digital Rights

The Act grants copyright holders the exclusive right to make their work available to the public by wire or wireless means in such a way that members of the public are able to access the work from a place and at a time independently chosen by them.⁹ These provisions for 'digital rights' of distribution, communication to the public, and availing by wire or wireless means, align with the World Intellectual Property Organisation ("WIPO")'s Internet Treaties; the WIPO Copyright Treaty ("WCT") and the WIPO Performances and Phonograms Treaty ("WPPT").¹⁰

8. Provisions Relating to Online Content

The Act has made quite extensive provisions to ensure that the rights of authors are not violated online. An entire Part (Part VII) has been dedicated to shield owners of copyright from having their work unfairly exploited online. These provisions include:

a. Take-down provisions¹¹ - the owner of copyright in a work, in respect of which copyright has been infringed can issue a notice of the infringement to the errant service provider requesting such a person to take down or disable access to any infringing content or link to the content, hosted on its system or network. The Act mandates the service provider to notify the infringing subscriber, and immediately take down or disable access to the infringing content or links to such. A challenge arises in the takedown provision in view of a situation where a person falsely claims that the content as hosted constitutes an infringement of his copyright. There is nothing in the provision that caters to the losses that the service provider may have incurred for the period that the content is taken down in the event that the person issuing the take-down notice had no basis to issue the notice in the first instance.

b. Suspension of account of repeat infringers – Section 56 of the Act empowers service providers to suspend accounts of a subscriber upon receiving at least two (2) notifications of infringements for a particular account. The suspension should be for a period of not less than one (1) month.¹²

c. Misrepresentation – a person who knowingly makes misrepresentations based on which a content is taken down or an account is suspended is liable in damages for injuries suffered by the subscriber as a result of the service provider relying on such misrepresentation.¹³

d. Identification of infringer – Section 60 of the Act empowers an owner of the copyright or his agent to apply to the court for an order to a service provider to identify an alleged infringer.

e. Power of the Commission to block access to online content – By Section 61 of the Act, the NCC can block or disable access to any content, link, or website hosted on a system or network, which it reasonably believes to infringe copyright.

9. Moral Rights

Moral right is the right of the author of a work to be identified and recognized as the creator of such work even when the copyright owner of the work is different from its author. Section 12 of the 2004 Act, provided for "the right to claim authorship" which has been replaced by Section 14 of the Act, now captioned "Author's Moral Right".¹⁴ The change in the subtitling is significant because it encompasses the true essence of the section. Also, the old Act, rendered moral rights perpetual and inalienable. The Act provides that moral rights shall be transmissible upon the death of an author/a performer by testamentary disposition or by operation of law. The new Act also provides that moral rights shall expire when the copyright in a work expires.¹⁵ Under the new Act, a person has the right to object to a work being falsely attributed to him as the author.¹⁶ These was not obtainable under the 2004 Act.

10. Special Provision for the Visually Impaired

The Act makes special provisions and exceptions for blind, visually impaired, or otherwise printdisabled persons such that authorized entities are allowed to reproduce a work in an accessible format for the benefit of disabled persons without the consent of the owner.¹⁷ This new exception caters to the production and international transfer of specially adapted books for the blind and the visually impaired, to align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind or Visually-Impaired.¹⁸

11. Fair Dealing

Just like the 2004 Act, the Act does not define this term, but it sets out the factors to be determined for successful reliance on the defense of fair dealing. These factors are the purpose and character of usage; nature of the work; amount and substantiality of the portion used in relation to the work as a whole and the effect of the use upon the potential market or value of the work. ¹⁹

12. Ownership of Copyright in Collective Works

Collective works refer to works that are created by the collaboration of two or more authors or contributors. Examples of such works include anthologies, magazines, newspapers, encyclopedias, and databases. The ownership of copyright in a collective work can vary depending on the terms of agreements between the parties involved.²⁰ By Section 29 (a) of the Act, Copyright in a collective work vests in the person on whose initiative or directive the work was made. The Act further provides in sub-section (b) that the authors of the works incorporated in a collective work shall have the right to exploit their works independent of the copyright in the collective work. Thus, generally, the copyright in a collective work is separate from the copyrights of the individual contributions within that work. This connotes that both individual contributors and the publisher or organizer of the collective work may have copyright interests in varying aspects of the work.

13. Performer's Rights

While Performer's rights were set out under Section 26 to Section 30 of the 2004 Act, The new Act dedicates a whole Part²¹ to ensuring that sufficient protection is given to the performer's remuneration rights in alignment with the Beijing Treaty on Audiovisual Performances. The Act now additionally provides for the following;

a. The performer's exclusive right to distribution of his fixed performance²²

b. Renting or lending of his fixed performance²³

c. Making available to the public his fixed performance by wire or wireless means²⁴

"Performer" for the purpose of the part includes actors, singers, musicians, dancers, and other persons, who act, sing, deliver, declaim, play in, interpret, or otherwise perform literary or artistic works or expressions of folklore irrespective of whether the work was fixed or only fixed during the performance.²⁵ Where there is no express agreement to the contrary, a performer's consent to the broadcasting of his performance is deemed to include his consent to an authorized rebroadcasting of his performance, the fixation of his performance for broadcasting purposes, and the reproduction for broadcasting purposes of such fixation.²⁶ Performers are entitled to share in any payment received by a party who arranges for the fixation of audiovisual work in respect of a broadcast or communication to the public of the fixed performance.²⁷

14. Expansion to Acts that Constitute Infringement

The Act has introduced more acts that constitute an infringement of copyright. These include:

a. Refusing or omitting to pay upon demand, any royalty by virtue of a right of remuneration or agreement; ^and

b. Aiding or procuring another person to commit an act that constitutes an infringement under the Act ^p>

c. To knowingly circumvent any technological measure that controls access to copyrightprotected works. ^This was introduced to enable owners of copyright to enforce their rights on the internet. This is a significant development in the war against piracy, especially for Nigeria's entertainment sector.

d. The Act further prohibits the manufacture, sale, purchase, distribution, or use of any device, technology, or service primarily designed for the purpose of circumventing protection afforded by a technological protection measure that effectively protects a work. Technological protection measures ("TPMs"), are legal protections procedures applied by rights holders to protect digital works from unauthorized use and access, as required by WCT and WPPT.

15. Dispute Resolution Panel

The Act empowers the NCC to set up a dispute resolution panel to resolve disputes arising from payment of royalties, terms of a license, or any matter in respect of which a determination by the NCC is required under the Act.³¹The Act also authorizes the NCC to make regulations providing for the procedure and operations of such Panel. Any person aggrieved by a decision of the Panel is also entitled, under the Act, to apply to the Court for a review of the Panel's decision. This provision will go a long way to decongest Nigeria's already overwhelmed court system.

16. No Schedules

While the 2004 Act which had Five (5) schedules, all relevant provisions of the Act are contained in the main body making for ease of access and reference. The Act has no schedules save for the supplementary provisions relating to the Board of the NCC.

Conclusion

From the objective of the Act through its entire gamut, it is apparent that the Act aims at appropriately rewarding the intellectual efforts of authors, especially in the commercial sense of it. The Act has done a good job of ensuring that all players within the creative industry are granted rights that protect their interests (commercial and otherwise). Also, the new Act empowers copyright holders to take legal action against online infringement of their works by users and subscribers given the new trend in digital content ecosystem. The Act definitely addresses challenges encountered by creatives, artistes, photographers, content creators etc. in digital driven economy. It is necessary for the NCC to avail relevant regulations (as soon as possible) that would compel effective implementation of the Ac