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Introduction

The National Bureau of Statistics (NBS) data indicates that in 2021, the arts, entertainment, and recreation industries contributed 0.16% to the nominal GDP of Nigeria. With a nominal GDP of N173.52 trillion that year, the industries stood at N278 billion. These statistics undoubtedly shows that creativity and innovation in the arts, entertainment, and recreation industry contribute to Nigeria's economic growth and development nonetheless.

To promote the arts and entertainment industry and enable it to meet its true potential, on the 27th of July 2022, the National Assembly passed the Bill (the Bill) for an Act to Repeal the Copyright Act, Cap C28 LFN, 2004 (the Act) and enact a new Copyright Act. The Bill, which is currently awaiting presidential assent, seeks to provide for the effective regulation, protection, and administration of copyright in the digital environment in line with global best practices. This article highlights some novel provisions of the Bill, which would significantly modify the existing legislative and regulatory framework for copyright administration in Nigeria, and the ramifications of such provisions within the Nigerian clime.

Highlights of the Copyright Bill

1.    Expanded Scope of Offences

The Bill expands the scope of criminal liability for copyright infringement by introducing more acts which constitute an infringement of copyright. These acts include the following:
a)    making of a copyrighted work available to the public via wire, wireless or online means for commercial purposes without the owner’s consent;
b)    refusing or omitting to pay upon demand, any royalty accruing by virtue of a right of remuneration under the Bill upon its enactment or agreement between the parties; and
c)    aiding or procuring another person to commit an act which constitutes an offence under the Bill.

2.    Online Content and Digital Copyright Management

Part II of the Bill introduces provisions which provide for online and other anti-piracy measures to protect works produced and exchanged over the internet as well as provide remedies for digital copyright infringement. Some of the relevant provisions of the Bill guarding against online infringement include the following:

a)    Take Down of Infringing Content – Under the Bill, the owner of an infringed copyright work has the right to issue a notice in writing of such infringement to the relevant service provider requesting it to disable access to the infringing content or link to such content hosted on its system. Upon receipt of such notice, the service provider is required to promptly notify the subscriber responsible for the infringing content informing them of the notice, and the service provider is empowered to take down or disable access to such infringing content and thereafter notify the copyright owner, if the subscriber fails to provide a valid reason for retaining the content within 48 hours. Inversely, where the subscriber provides a justifiable reason for the non-removal of the content, or where the service provider is convinced that the complaint of the alleged copyright owner lacks merit, the service provider is required to promptly inform the copyright owner of its decision not to take down the content.

Notwithstanding the rights of the service provider, where any person is dissatisfied with a determination or action by the service provider or owner of copyright such person may refer the matter to the Nigerian Copyright Commission (the Commission) for determination.

b)    Suspension of Accounts of Repeat Infringers – Where a service provider receives notice from a copyright owner that a subscriber has repeatedly infringed a copyrighted work, the service provider shall send a warning to such a subscriber that a receipt of another notice of copyright infringement would lead to suspension of the account. A subscriber receiving such a warning may challenge the notice on grounds of mistake or misidentification. Upon receipt of a second notice, where no challenge of the first notice by the subscriber is pending, the service provider is empowered to suspend the account of an alleged repeat infringer for at least one month subject to the provision of the Bill.

c)    Blocking Access to Online Content – The Bill authorises the Commission by itself or with the assistance of any person to block or disable access to any content or link, hosted on a system or network, which it reasonably believes to infringe copyright.

d)    Circumvention of Technological Protection Restriction – The Bill expressly prohibits the circumvention of any technological protection measure that controls access to copyright-protected works. The Bill further prohibits the manufacture, sale, purchase, distribution or use of a device that is primarily used to circumvent technological protection measures that controls access to copyrighted works. Thus, it is a violation to disable encryption software used to prevent unauthorized access to a movie or music video stored or transmitted in digital form.

These provisions are a welcomed development, given the relative ease with which copyrightable works can now be pirated on online platforms.

3.    Remuneration for Broadcast of Sound Recordings and Audio-visual Works to Owners of such Work  

The Bill improves upon the remuneration for the broadcast of sound recording and audio-visual works by recognising digital means of distribution, streaming and sale of music or sound recordings as publication for commercial purposes. As such, owners and performers of such works published via these means are entitled to remuneration for the broadcast of their recording.  

The Bill further provides that the amount of remuneration and conditions of payment is to be agreed between users of musical works, owner and the performer, or their representatives and in the absence of such agreement, the compensation due shall be determined by the Commission. The Bill thus places an imperative on the need for written agreements on remuneration regarding sound recording.

The Bill allows artists to demand logs and statements in relation to the broadcast of the recording. As such, an artist can tell a radio station or a distribution platform that they want to see their logs or their statement with respect to how the music has performed so far.

4.    Increased Penalties for Breach of Provisions

In a bid to ensure increased adherence to the Bill, the fines payable by persons who breach any of its provisions have been increased. Whereas in the Act, penalties and fines ranged from N500.00 to N500,000.00, minimum penalties in the Bill have been increased to range from amounts not less than N50,000.00 to amounts not less than N5,000,000.00. With the Bill prescribing minimum amounts for fines, fines up to N10 million or even more may be meted out on persons who breach provisions of the Bill when enacted.  

5.    Regulation of Collective Management Organisations

The Bill provides for the creation of a collective management organisation (CMO) for the management of the rights of copyright owners upon the approval of the Commission. CMOs are to be companies limited by guarantees with their objects being the negotiation and granting of copyright licenses; collecting royalties on behalf of copyright owners; and distributing same to them.

An organization that operates as a CMO without the approval of the Commission shall be guilty of an offence and shall be liable on conviction to a fine not less than N1 million or imprisonment for a term not exceeding three years or both. Where the aforementioned contravention is by a body corporate, it shall be guilty of an offence and liable to a fine not less than N5 million.

6.    Establishment of a Dispute Resolution Panel

The Commission is empowered under the Bill to establish a dispute resolution panel (the Panel) to resolve disputes in respect of payment of royalties or terms of copyright licensing agreements. The Panel is to be comprised of three persons knowledgeable in copyright matters, one of whom would serve as chairman. Any person dissatisfied with the decision of the Panel may seek recourse in a court of law in order to have such a decision reviewed.  

If the Panel is established by the Commission, it will be a welcomed development which will hopefully encourage more creatives to actively protect their copyrights, given that the judicial process by courts is often discouraging due to the cost and length of time to adjudicate disputes. The Commission is granted the power to make regulations guiding the procedure of the Panel, and the success of Panels will be dependent on their adjudication efficiency, if not they may become as cumbersome as the courts.

7.    Introduction of Moral Rights for Performers

The Bill introduces the concept of moral rights of performers. Moral rights, under copyright law, can be described as (i) the right of attribution of authorship; (ii) the right not to have authorship falsely attributed; and (iii) the right of integrity of authorship (Talia Admiraal, 2022). Section 41 of the Bill grants moral rights to performers to be identified as performers in relation to any use of their performances or rendering of same in a fixed medium. Performers are also given the right to object to and prevent any distortion or modification of their performances and any derogatory action that would be prejudicial to their reputation.

These moral rights granted are not transmissible during the lifetime of the performer but upon their death, shall be transmissible by a will or the operation of law. Moral rights granted here subsist for the duration of the performer’s rights.

Commentary

The Bill is an improvement on the current Act as it takes cognisance of modern exigencies, such as the proliferation of the internet and its effect on the consumption of copyrightable work and on copyright protection in Nigeria and seeks to proffer solutions to issues which have arisen from the enjoyment of copyrightable work through such medium.

Under the Act, the financial penalties for breaches are paltry sums ranging from N500.00 to N500,000.00. Such penalties lack the deterrent effect they ought to have to prevent copyright infringement. In the United States, penalties for copyright includes imprisonment for up 5 years and fines of up to $250,000.00. Such fines would effectively serve to deter persons from copyright infringement due to the fines attached. The fines under the Bill have been increased to range from amounts not less than N50,000 to amounts not less than N5 million. In increasing the penalties for copyright infringement, the Bill when enacted is more likely to have a deterrent effect on persons contemplating copyright infringement.

The Bill further mirrors contemporary development in copyright protection by providing and guarding against online copyright infringement. In guarding against online copyright infringement, the Bill enacts some of the provisions of the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty to which Nigeria is a party. One of the core innovations of the WIPO Copyright Treaty was the provision of legal remedies against the circumvention of technological measures which the Bill, in a like manner, makes an offence. In passing the Bill into law, Nigeria would join a list of countries who have implemented the effects of the treaties in their local laws such as the United States who did same in the enactment of the Digital Millennium Copyright Act (DMCA).

The provision on moral rights in the Bill also mirrors provisions on copyright protection in other jurisdictions. Chapter IV of the Copyright, Designs and Patents Act 1988 (CDPA) of the United Kingdom provides for the moral rights of creators such as the right to be identified as author, the right to object to derogatory treatment of work, and the right against false attribution of work. Though the Bill’s provisions are not as detailed as in the CDPA, it serves as a step in the right direction of protecting the works and products of creators from harmful intrusions by publishers.

It is laudable that steps have been taken to revamp copyright administration in Nigeria through the passing of a Bill to ensure that contemporary measures are in place to deal with copyright infringement. When finally enacted, the provisions of the Bill will, to a large extent, better protect owners of copyrighted works.

Conclusion

The Bill, when enacted, will be a step in the right direction for the enforcement of copyright laws in Nigeria, especially in the digital age. For years, creatives had been plagued by the fact that although technology had brought increased reach and publicity, it also increased the propensity for copyright infringement. The Bill seeks to bring the administration of copyright in Nigeria in line with current realities and make room for effective regulation, promotion, and protection of copyright of Nigerians.

Detail Commercial Solicitors is distinct as Nigeria’s first commercial solicitor firm to specialize exclusively in non-courtroom practice. Based in Lagos, Nigeria’s business capital, DETAIL is totally committed to its clients’ business objectives and reputed for dealing with the minutiae. Email: info@detailsolicitors.com.