Copyright is a fundamental system that protects the rights of creators of various works, including literary, musical, artistic, audiovisual, sound recordings, and broadcasts[1]. Copyright is an internationally recognized type of intellectual property that safeguards original works from infringement as soon as they are put in tangible form[2]. It is worth noting that copyright does not extend protection to ideas, systems, processes, or mere dates and official state symbols, among others. However, a title may be registered as a trademark, and the written or published form of a book is protected.
Recently, the National Assembly passed a bill to amend the Copyright Act and re-enact it as the Copyright Act 2023. The Act features provisions that ensure the protection of the rights of authors and creatives, guaranteeing their due recognition and reward for their intellectual efforts. Additionally, it incorporates appropriate limitations and exceptions to grant access to creative works while facilitating Nigeria’s compliance with international Copyright treaties. The enactment of the Copyright Act 2023 enhances the Nigerian Copyright Commission’s capacity for the effective administration and enforcement of its provisions.
Copyright protection is essential to safeguarding the rights of creators, and the Copyright Act 2023 provides legal protection to creators of various works. The Act contains provisions that aim to ensure just rewards and recognition for creators, facilitate access to creative works, and enhance the administration and enforcement of copyright law. In this publication, we will focus on copyright infringement under the 2023 Act, highlighting the acts that constitute infringement, exceptions to infringement, and actions available to copyright owners.
Copyright Infringement under the Copyright Act 2023:
Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder/owner[1].
Copyright infringement also refers to a situation where the rights afforded to the copyright holder, such as the exclusive use of a work or copyrighted material are being breached by a third party. It is also said to occur when the violating party exercises any of the creator’s exclusive rights to the work without a license or due authorization. This includes all manners of distribution (selling, broadcasting, performing, etc.), adaptation, or other copying of the work. Infringement can occur whether or not the violating party seeks monetary gain through the use of the material in question, though any argument against copyright infringement is usually considered stronger without a motive for securing monetary gains.
[1] https://www.investopedia.com/terms/c/copyright-infringement.asp
The Copyright Act 2023 contains several innovations aimed at protecting the rights of creators and preventing copyright infringement. Here are some of them:
- Expanded definition of infringement: The expanded definition of copyright infringement under the Copyright Act 2023 means that not only direct infringers but also those who indirectly or contribute to infringement can be held liable. This means that even if a person or entity did not directly infringe on the copyrighted work, but they aided or contributed to the infringement in any way, they could still be held liable. For example, if a company provides a platform for users to upload and share copyrighted material, the company could be held liable for contributory infringement if they knew or should have known about the infringement and did nothing to stop it.
- Statutory damages: The provision for statutory damages under the Copyright Act 2023 allows for a predetermined amount of damages to be awarded to the copyright owner for infringement. This eliminates the need for the owner to prove actual damages suffered as a result of the infringement. For example, if someone were to sell counterfeit copies of a book that is copyrighted, the owner of the copyright can sue for statutory damages even if they cannot prove actual damages.
- Safe harbours: Safe harbours under the Copyright Act 2023 protect internet service providers (ISPs) and other intermediaries who may inadvertently facilitate infringement by their users. This means that ISPs are not held liable for the actions of their users, as long as they meet certain criteria. For example, if a user uploads a copyrighted video to a website, the website hosting the video will not be held liable for infringement as long as they have a policy in place to remove infringing content and they promptly remove the video once they become aware of the infringement.
Copyright infringement is a serious offense that occurs when someone uses or produces copyright-protected material without the permission of the copyright holder. The Copyright Act 2023 recognizes various acts that constitute infringement. These includes:
- Illegally downloading music files: This refers to the act of downloading music files without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to reproduce, distribute, and perform their music, and the act of downloading music files without permission violates these rights.
- Uploading someone else’s copyrighted material to an accessible web page: This refers to the act of uploading someone else’s copyrighted material, such as music, videos, or images, to a website without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to control the reproduction, distribution, and display of their copyrighted material.
- Downloading licensed software from an unauthorized site: This refers to the act of downloading licensed software from an unauthorized site without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to reproduce, distribute, and display their software, and the act of downloading software without permission violates these rights.
- Modifying and reproducing someone else’s creative work without making significant changes: This refers to the act of modifying or reproducing someone else’s creative work, such as music, art, or literature, without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to control the reproduction, distribution, and display of their copyrighted material.
- Recording a movie in a theatre: This refers to the act of recording a movie in a theatre without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to control the reproduction, distribution, and display of their copyrighted material.
- Distributing a recording of a TV show or radio broadcast: This refers to the act of distributing a recording of a TV show or radio broadcast without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to control the reproduction, distribution, and display of their copyrighted material.
- Public performance or communication of copyrighted work: This refers to the act of performing or communicating a copyrighted work to the public without the permission of the copyright owner. Examples of this type of infringement include publicly playing a song or showing a movie without obtaining the necessary licenses.
- Adapting, translating, or altering copyrighted work: This refers to the act of making a derivative work based on a copyrighted work without the permission of the copyright owner. Examples of this type of infringement include creating a movie adaptation of a book without obtaining the necessary licenses or making unauthorized translations of copyrighted software.
- Importing or distributing infringing copies: This refers to the act of importing or distributing copies of a copyrighted work without the permission of the copyright owner. Examples of this type of infringement include importing pirated DVDs or distributing unlicensed copies of copyrighted software.
- Making available copyrighted work to the public: This refers to the act of making a copyrighted work available for download or streaming on the internet without the permission of the copyright owner. Examples of this type of infringement include sharing copyrighted music or movies on peer-to-peer networks without obtaining the necessary licenses.
- Using copyrighted work without attribution: This refers to the act of using a copyrighted work without properly crediting the copyright owner. Examples of this type of infringement include using a copyrighted photograph in a magazine without attributing it to the photographer or using copyrighted music in a video without giving credit to the artist.
- Publishing or posting a video with a copyrighted song to a company website: This refers to the act of publishing or posting a video with a copyrighted song to a company website without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to control the reproduction, distribution, and display of their copyrighted material.
- Selling merchandise that includes copyrighted images, text, or logos: This refers to the act of selling merchandise, such as T-shirts, mugs, or posters, that includes copyrighted images, text, or logos without permission or proper authorization from the copyright owner. It is considered copyright infringement because the copyright owner has exclusive rights to control the reproduction, distribution, and display of their copyrighted material.
Copyright Protection and Remedies under Nigerian Copyright Law
Section 36 of the Act reserves the rights of copyright owners from unauthorized persons. For any act to amount to infringement, it must be in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original. Section 37 provides for the actions available to copyright owners, assignees, or an exclusive licensee of the copyright in the court exercising jurisdiction in the place where the infringement occurred. To succeed in a claim of copyright infringement, the claimant must provide proof that they are the rightful owners of the materials in question and evidence of the defendant’s actions that infringed upon their exclusive rights.
Exceptions to Copyright Infringement:
The Copyright Act 2023 provides some exceptions to copyright infringement in section 38. It states that no action for infringement shall be maintained by any person or organization who engages in the business of negotiating and granting a license, collects and distributes royalties, or represents more than 50 owners of copyright in any category of works protected under the Act, unless approved under section 88 of this Act to operate as a collective management organization or issued with a certificate of exemption by the Commission.
It also provides that no action for an infringement of copyright or any right under this Act shall be commenced or maintained by any person or organization, who:
- (a) Engages in the business of negotiating and granting a license
- (b) Collects and distributes royalties in respect of copyright works
The above-provided exceptions are the only ones the Act provided for and any act contrary to the above shall be deemed to amount to infringement of copyright.
Conclusion:
Copyright infringement is a violation of a creator’s exclusive rights and is punishable under the law. It is essential to understand what constitutes infringement and how to protect your work from unauthorized use. The Copyright Act 2023 provides legal protection to creators and encourages innovation and creativity while balancing the public’s interest in access to creative works. Understanding your rights and obligations under the law is crucial in navigating copyright infringement issues, and seeking legal advice when necessary is recommended.
Copyright infringement is based on concepts of proprietary ownership which is in line with other intellectual property laws. The copyright law/protection aims to balance the personal interests of creators with the public’s broader interest in freedom and access. Some level of protection for intellectual property, however, is essential to fostering innovation in business, research, the arts, and more because of the incentives (financial or otherwise) it preserves for creators. Ultimately, copyright protection is important for small-scale creators and big businesses alike, and understanding how infringement works is essential to interacting with copyrighted material at any level, as there exist a thin line between what constitutes fair use and infringement.
[1] Copyright Act, 2022 gazetted 27th March, 2023, No. 56, Vol. 110
