INTELLECTUAL PROPERTY: YOU HAVE NO RIGHT TO COPY !
The idea of Intellectual Property [hereinafter referred to as “I.P”] as a legal concept is to protect the person who has expended energy and resources into a work; to protect the expression and execution of an idea, so that he can exploit it and prevent others from doing so unlawfully. Copyright is unique, unlike other IP rights such as patents, trademarks etc., the owner of a work does not need to register it; he/she becomes conferred with copyright in respect of the subject matter immediately. Hence, it is quite important and cannot be taken for levity.
An author has the right to enjoy his work. The right to reap the fruits of his labour, to benefit from the publication, performance, and other forms of exploitation must not be infringed upon by anyone. Belgore J, in Oladipo Yemitan v. The Daily Times Nig. Limited [1980] F.C.H.R 186 @ 190 held that the right of a man to that which he had originally made must be protected. According to the learned Jurist, “it must be stated that the legal position is that copyright belongs to the author who is the one that actually expended the work, labour, knowledge and skill.” If a man has expended energy and resources in making up a thing, the exploitation is his entitlement. The Court’s view in Mazer v. Stein 347 U.S 201 [1954] was that sacrificial days are devoted to creative activities which deserve rewards commensurate with the activities rendered. Section 6, Copy Right Act confers upon the owner the right to control the exploitation of his work.
Not all works are copyrightable. Alphabets, numbers, names, general phrases and idiomatic expressions, idea of a product, etc. cannot enjoy protection. Section 1 itemizes the categories of work eligible for copyright protection. They are: literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts.
Infringement
To the meat of the matter at hand, from time to time, there are always cases of copyright breaches especially in the entertainment industry, the music sector to be precise. It is very common to see artistes accusing one another of “song theft”. However, it goes beyond that. People may be unaware, but certain uploads on social media, unauthorized use of images amongst other actions constitute infringements. Section 15 draws up a large list of activities that constitute such. Nigerians are slowly waking up to the loss from infringements, however those who have lost a lot of money know the gravity of injustice it brings.
Who Can Sue?
Now, not just anyone can file an action in court alleging an infringement. You have to have locus i.e. a relevant interest in the matter. Section 16(1) provides that the owner, assignee or an exclusive licensee of a work are the persons that can bring an action for copyright infringement. Section 39 also provides for a “Collecting Society” [which may be formed in respect of anyone or more rights of copyright owners for the benefit of such owners] Hence, not every Tom, Dick and Harry can wake up one morning to proceed to the halls of a courtroom agitating a breach, he/she must fall under any of these categories. Mtn Nig. Communications Limited v. Musical Copyright Society of Nigeria Limited/GTE [2017] Lpelr – 50121 [CA].
Furthermore, while people casually think it is a matter that can be easily settled out of court, they fail to realize that it also attracts penal consequences. Section 20 provides that a person found guilty of infringement is liable to pay a fine of N1000 for every copy of every infringed work or faces a prison sentence of 5 years. Copyright infringement is criminal in nature. Section 39 (4), (5) and (6) also establishes punishments for breach of rights owned by collective societies. So, there is no doubt, copyright infringement is a criminal offence. This was the stance of the Supreme Court in Musical Copyright Society of Nigeria Limited/Gte v. Compact Disc Technology Limited [2018] Lpelr – 46353 [SC]. The Court in Mtn Nig. Communications Limited v. Musical Copyright Society of Nigeria Limited/GTE [Supra] explained that the general purpose of the Copyright Act is to make provisions for the definition of copyright, framework for its protection, transfer, what constitute infringement and the procedure to obtain remedy.
Enforcement
A victim of infringement has the right to seek redress. There are quite a handful of remedies available to anyone whose copyright has been breached. As gleaned from the preceding paragraphs, copyright infringement is criminal in nature and that automatically translates the availability of penal sanctions as a remedy. Apart from criminal liability, there are also civil ways to stop an infringement. They are:
Conversion rights
Section 18 states that:
“all infringing copies of the works copyright subsists, or of any substantial part thereof, and all plates, master tapes, machines, equipment or contrivances uses or, intended to be used for the production of such infringing copies shall be deemed to be the property of the owner, assignee or exclusive licensee or as the case may be, of the copyright……….”
What this provision is basically saying is, every material used in the infringement process, the owner/assignee/exclusive licensee can lay claim to it.
Section 19(1) provides that the breach of Sections 10 and 12 [which deal with first ownership of copyright and right to claim authorship respectively] is actionable i.e., the matter can be resolved by litigation. 19(2) further goes on to provide that anyone whose right has been breached is entitled to an award of damages, injunctions and any other remedies as the Court may deem fit to award in the circumstances.
2. Damages
This means monetary compensation. This could either be Special or General Damages. In the latter case, the plaintiff [aggrieved person] does not need to prove that he has suffered any damage in particular. The mere fact that that there is an infringement suffices. While in the former, the plaintiff must prove that the acts of infringements have caused him certain harm.
3. Injunctions
This can be:
- Interim Injunction
Here the defendant [person who is alleged to have committed the infringement] will be restrained by the Court from the continuation of the act complained against. This order lasts temporarily and it is granted in situations of emergencies.
- Interlocutory Injunction
This is granted until the case itself has been fully determined. The essence, just like interim injunctions are usually to preserve the subject matter of infringement, so that there will be no further exploitation until the case in court is over.
- Perpetual Injunction
This is also known as the permanent injunction. It is a final relief as it ensures that the infringer never interferes or infringes with the subject matter again.
4. Anton Pillar Order [Inspection and seizure order]
Section 25 provides that the Court can grant an order which allows the owner [accompanied by a Police Officer not below the rank of an Assistant Superintendent] to enter into the premises of the infringer to inspect the infringing items or works. The owner applies to the Court via a Motion Ex-parte [without notifying the infringer] and if the Court grants the application, it makes an order that enables the owner to go into the premises of the infringer, inspect and seize any material found there, which was used in the process of infringement.
The concept of Intellectual Property as stated above, is to allow a person who has worked hard to conceive and execute an idea, reap the benefits of his work. Therefore, anyone who is caught committing any act(s) that constitute infringement will face both criminal sanctions and civil liabilities. Hence, copyright simply means unless permission is given, you have no right to copy!
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