TerraLex Cross-Border Guide to Cross-Border Copyright Guide

The main source of copyright legislation in Nigeria is the Copyright Act (“CA”) 2022, which recently repealed the Copyright Act of 2004. The provisions of the new Act apply to works created both before and after the commencement of the Act.

Nigeria, as a common law legal system, also relies on case law to interpret and establish precedents in copyright law. Judicial precedents are used to give meaning and application to the provisions of the Copyright Act.

The categories of works that are eligible for copyright protection in Nigeria include: Literary works: This category encompasses novels, stories, poems, plays, stage directions, audiovisual scripts, broadcasting scripts, choreographic works, computer programs, textbooks, treaties, histories, biographies, essays, articles, directories, anthologies, letters, reports, memoranda, and other written works, irrespective of their literary quality.

Musical works: This category includes musical compositions, irrespective of their musical quality.

Artistic works: This category covers artistic creations such as paintings, drawings, sculptures, photographs, engravings, and designs.

Audiovisual works: This category includes a series of related visual images with or without sound, capable of being shown as a moving picture through mechanical, electronic, or other devices. It also includes the soundtrack but does not cover broadcasts. Online creative content is protected under this category.

Sound recordings: This category refers to the fixation of sounds in a medium such as CDs, tapes, or digital files. Broadcasts: This category encompasses the transmission of wireless means of sounds or images, or both, in a manner that allows them to be received by the public

For a literary, musical, or artistic work to qualify for copyright protection in Nigeria, three main requirements must be met: (1) Originality: This means that efforts have been expended in creating the work to give it an original character. The quality of the work is immaterial for purposes of copyright protection.

(2) Fixation: The work must be fixed in any medium of expression known or later developed, from which it can be perceived, reproduced, or communicated, either directly or with the aid of any machine or device.

(3) Connection: The work must have been created by a person qualified to do the work. This person (i.e., the Author) must either be a citizen or habitually resident in Nigeria and in the case of a corporate body, it must be incorporated in Nigeria. Where the Author is not qualified according to the CA, the work must have been first published in Nigeria. In addition, for a foreign work to qualify for copyright protection in Nigeria, at the date of its publication, at least of one the authors must either be a citizen or be habitually resident in a convention country or the body corporate owner of the copyright in the work must have been incorporated under the law of such a convention country. A convention country is that in which Nigeria has entered into an international treaty.

The rights of a copyright holder in Nigeria vary depending on the category of the work. In general, copyright holders have exclusive rights to reproduce, publish, broadcast, adapt, perform in public, translate, and communicate their work to the public. These rights grant the copyright holder control over their work and the ability to profit from it.

Yes, the Copyright Act provides for moral rights which include the right to be identified as the author of a copyrighted work, the right to object and seek relief against distortion, mutilation, and derogatory treatment of the work, and the right to object to false attribution of the work. Moral rights are not limited to any category of work under the Act.

The duration of copyright protection in Nigeria varies depending on the type of work. The various durations are examined below. Literary, musical, or artistic works (excluding photographs): 70 years after the end of the year in which the author dies.

Work made under the direction or control of a government or its agency or a prescribed international body: 50 years after the end of the year in which the work was first made available to the public, or 50 years after the work was created if not made available to the public within that time.

Audiovisual works and photographs: 50 years after the end of the year in which the work was first made available to the public with the consent of the author, or 50 years after the work was created if not made available to the public within that time.

Sound recordings: 50 years after the end of the year in which the recording was first made available to the public with the consent of the author, or 50 years after the work was created if not made available to the public within that time.

Broadcasts: 50 years after the end of the year in which the broadcast first took place. Anonymous or pseudonymous literary, musical, or artistic works: Copyright subsists until 70 years after the year in which the work was first made available to the public with the consent of the author, or 70 years after the work was created if not made available to the public within that time. However, if the author becomes known, the duration of the copyright shall be 70 years after the end of the year in which the author dies.

All moral rights as identified in 2.4 above subsist for the duration of the copyright in the work. (See. 2.5 for the duration of copyright protection in works).

In Nigeria, the general rule is that the first owner of a copyright is the author. However, there are exceptions. If a work is created by a person under a contract for service or employment of the government or a prescribed international or inter-governmental organization, the copyright vests in that body and not the individual. Additionally, if a person commissions a photograph, painting, drawing, or audiovisual work for private and domestic purposes, they have a non-exclusive license to exploit the commissioned work for non-commercial purposes and can restrict making the work available to the public. The Copyright Act provides further guidance on who is considered the author in certain instances. For audiovisual works and sound recordings, the person responsible for the arrangements of making the work is considered the author. For collective works, it is the person responsible for the selection and arrangement of the collection. For photographic works, the person who took the photograph is considered the author. For broadcasts transmitted from within Nigeria, the person responsible for the arrangements of making or transmission from within Nigeria is considered the author.

Copyright in a work can be jointly owned by two or more persons in Nigeria. This can occur when a work is created by more than one person, or when there is an assignment of the whole or part of a work. To qualify as joint authors, the work must be produced through collaboration where the contributions of each author are merged into an inseparable or interdependent part of the whole. Co-owners of joint copyright enjoy the rights to assign or license their copyright rights. However, if one co-owner exercises this right, it is considered as if granted by all co-owners, and any fees received shall be divided fairly among them, subject to any agreement between them.

Copyright protection in Nigeria is automatic and does not require registration. Once the requirements for copyright eligibility are met, a work is protected automatically. However, a person may choose to register an eligible work with the Nigerian Copyright Commission (NCC). (See 2.2 on the conditions for eligible works). It is important to note that registration does not confer copyright protection, but it can serve as secondary evidence of registration in court proceedings, as an extract from the Register kept by the NCC.

The Copyright Act does not explicitly provide for the steps to take to validly transfer, assign or license copyright. It simply states that such transfer, assignment, or licensing must be done in writing to be effective.

Moral rights are not transmissible during the life of the author. However, upon the death of the author, it becomes transmissible by testamentary disposition or by operation of law.

In Nigeria, infringement of copyright occurs when any person, without authorization from the copyright owner, engages in the following acts: Performs an act that violates the exclusive rights of the copyright holder.

Imports or causes to be imported infringing copies of a work.

Sells, offers for sale, or hires out any work in violation of the exclusive rights of the copyright owner.

Makes or possesses equipment used solely for the purpose of making infringing copies of a work.

Permits a place of public entertainment or business to be used for a public performance of a work, where the performance constitutes an infringement of copyright, unless the person permitting the place to be used was not aware and had no reasonable ground to suspect that the performance constitutes an infringement of copyright. Permits within its premises the reproduction of a copyright work.

Performs or causes to be performed, for the purpose of trade or business or promotion of a trade or business, any work in which copyright subsists.

It is worth noting that if it is proven or admitted that an infringement was committed but the person infringing was not aware and had no reasonable ground to suspect that copyright subsisted in the work at the time of the infringement, the copyright owner shall not be entitled to any damages against the person infringing in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement.

There is no classification for what constitutes indirect infringement under Nigerian laws.

Under the Copyright Act, there are exceptions to copyright works that are permitted, and the key term is "fair dealing." Fair dealing allows for acts such as private use, parody, satire, pastiche, caricature, non-commercial research, and private study, criticism, review, or reporting of current events, subject to the condition that if the use is public, it should be accompanied by an acknowledgment of the title of the work and its author, unless the work is incidentally included in a broadcast. Other exceptions include quotations in the form of short excerpts from a work and reading or recitation in public or in a broadcast. The Act lists several exceptions, and in determining whether a work has been dealt with fairly, factors such as the purpose and character of the 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 are considered.

Providing a hyperlink to, or framing, a work protected by copyright may amount to infringement if it circumvents a technological protection measure that effectively controls access to the work, such as when a paid subscription is required to access the work. There may be exceptions for non-profit libraries, archives, or educational institutions that gain access to a commercially exploited copyrighted work for the purpose of making a good faith determination of whether to acquire a copy of the work for permitted acts, with the condition that the copy of the work may not be retained longer than necessary for the determination and used for any other purpose.

The act only recognizes that an exclusive licensee can bring an infringement action in court for copyright infringement. The Copyright Act explicitly grants the right to exclusive licensees to initiate infringement actions but does not mention non-exclusive licensees. Notably, where both the copyright owner and an exclusive licensee have concurrent rights of action in relation to an infringement, they may not proceed with the action against the infringer without the court's permission, unless both are joined as parties to the action.

The remedies available can be categorized into three types: interim, interlocutory, and perpetual reliefs. An Interim relief may involve obtaining an injunctive order by way of a motion ex parte, that authorizes the copyright owner, accompanied by a police officer or a copyright officer, to enter a premises at any time to seize, detain, or preserve an infringing work, or to inspect any document relating to the infringement that is in the custody or control of the alleged infringer.

An Interlocutory relief may include temporary injunctions, orders for the preservation of evidence, or other measures to maintain the situation until a final decision is reached.

Perpetual reliefs may include an award of damages, perpetual injunctions, accounts of profits, delivering up of infringing articles to the copyright owner, forfeiture of infringing articles, or their destruction.

Yes, specific remedies exist for online copyright infringement including notices to take down infringing content and suspension of accounts for repeat infringers and blocking of access to the online content.

There are several actions that constitute copyright offences for which a person can be criminally liable under the Act. These include distributing, selling, or making available for sale infringing copies of a copyright work, importing, or causing to be imported infringing copies into Nigeria, possessing infringing copies for commercial use, making, or possessing machines for making infringing copies, and communicating infringing copies to the public. Aiding or procuring another person to commit a copyright offence is also considered a criminal act.

The sanctions for committing a criminal offence in relation to copyright may include fines and/or imprisonment.

The Act does not provide explicitly for the time limit for the institution of a copyright infringement claim.

Yes, costs can be recovered in copyright infringement proceedings. Recoverable expenses may include legal representation, travel expenses, and other reasonable costs. The court determines the amount of costs to be paid, and if necessary, may refer the determination to an assessment officer. There is no fixed percentage for costs, as it is summarily determined by the judge or assessment officer based on the circumstances of the case.

The Federal High Court has exclusive jurisdiction on civil and criminal matters arising from Copyright infringement actions. Monetary thresholds do not apply in this regard.

Under the Act, a copyright owner has the option to pursue both criminal and civil actions simultaneously for the same infringement. Additionally, the Act recognizes that parties can choose to resolve their disputes through Alternative Dispute Resolution.

The Nigerian Copyright Commission (“NCC”) is the designated body responsible for all matters pertaining to copyright, including administration, regulations, and enforcement in Nigeria. The NCC has various responsibilities such as monitoring and advising the government on Nigeria's position in bilateral and multilateral agreements, investigating and addressing cases of copyright infringement, settling copyright disputes, educating, and informing the public on copyright, maintaining a register and database on copyright, and handling other copyright-related matters. The NCC is also empowered to actively enforce copyright by demanding evidence of compliance, cautioning non-compliant persons, imposing administrative fines, and initiating criminal or civil proceedings against defaulting parties.

The main collective rights management agencies operating in Nigeria are: - The Audio Visual Rights Society of Nigeria (AVRS),

• The Copyright Society of Nigeria (COSON),
• Reproductive Rights Society of Nigeria (REPRONIG), and
• The Musical Copyright Society Nigeria (MCSN).

AVRS exclusively manages copyrights for cinematographic films in Nigeria, although it is yet to be determined if the license for cinematographs will be converted to Audio Visual Rights due to changes in the Copyright Act. COSON is licensed to administer performing and mechanical rights and represents composers, authors, publishers, performers, and owners of copyright in sound recordings. REPRONIG is specifically licensed to protect the rights of authors of literary works. MCSN represents music composition owners, including songwriters, composers, and music publishers, as well as sound recording owners, including performers, producers, and record labels.

Yes, copyright levies are payable in Nigeria. They are paid on materials that are used or capable of being used to infringe copyright in a work. The levies are prescribed by the Minister responsible for copyright matters, and exemptions may be granted for certain classes of materials. The levies are payable at the point of entry for imported materials by the importer, or at the point of manufacture, production, or assembly for materials manufactured, produced, or assembled in Nigeria by the manufacturer, producer, or person responsible for the assembly. The levies are paid into the Fund of the Nigerian Copyright Commission (NCC), and after approved deductions, the funds are disbursed to the appropriate Collective Management Organizations (CMOs) or other representatives of right owners as per the regulations made by the Commission.

The top recent copyright development in Nigeria is the enactment of the Copyright Act 2022, which aims to align the copyright law with recent technological advancements and copyright protections. One significant development in this Act is the recognition of online creative works as eligible for protection under copyright law. The provisions on remedies available for infringing online works are a major development in the copyright jurisprudence of Nigeria. The creative industry in Nigeria is thriving, with many creatives producing works on a daily basis. Prior to the enactment of the Copyright Act of 2022, there were limited measures available that adequately addressed online infringements of contents other than the copyright policies of service providers. Now, the Act empowers online creators to take proactive steps in protecting their works against infringement, marking a significant development in the Copyright landscape in Nigeria.

In the coming year, there are two potential copyright developments in Nigeria. Firstly, there is growing curiosity about the impact of Artificial Intelligence (AI), which is evidenced by a significant increase in Nigerians Google search on AI in 2022 compared to previous years. This includes creatives who may be interested in the protection of works generated by AI systems. The development in this area would involve exploring if there are means to protect works created by AI systems, determining who would be entitled to copyright in such works, and whether these works would enjoy any form of copyright protection.

Secondly, the changes made in the newly enacted Copyright Act of 2022 would likely be a significant copyright development in the coming year. These changes may affect various aspects of copyright law, including but not limited to, the scope of protected works, rights of creators and owners, and enforcement mechanisms. It will be important to closely monitor and assess the implications of these changes on the copyright landscape in Nigeria as they unfold in the next year.

The type of neighboring rights recognized under the Copyright Act include the exclusive rights of performers. These rights encompass the control over various aspects related to their performances, such as the fixation of their unfixed performances, reproduction of their performances, making their performances available to the public through wire or wireless means, broadcasting of their unfixed performances, and distribution or transfer of ownership of fixations of their performances. These neighboring rights aim to protect performers and their performances in Nigeria

In order for performers to enjoy neighboring rights, the following terms must be fulfilled under the Copyright Act: on the date of the performance, at least one of the performers is a citizen of Nigeria or habitually resident in Nigeria, or the performance takes place in Nigeria or is fixed in Nigeria or in a country that is a party to an obligation in a treaty or other international agreement to which Nigeria is also a party. These terms determine the eligibility for performers to enjoy neighboring rights protection in Nigeria.