A Brief Review of the Nigerian Draft Copyright Bill 2015

INTRODUCTION

As a part of the reformation of the copyright system in Nigeria
which commenced in November 2012, the Nigerian Copyright Commission (“NCC”)
constituted a committee consisting of some of its officials and representatives
of the relevant IP professional bodies to undertake the task of drafting a new
Copyright Bill. The committee published the draft Bill on 30th October 2015 (“The Bill” or “Copyright Bill”), comprising
of 88 sections and divided into 11 parts. The Bill had been approved by the
Federal Executive Council and was awaiting passage into law by the National
Assembly and eventual assent by the president prior to the dissolution of the
18th National Assembly. It now appears that
legislative review of the bill would have to re-commence afresh.

According to the introductory note to the Bill, the main
objective of the reform is to “reposition Nigeria’s Creative industries
for greater growth; strengthen their capacity to compete more effectively in
the global market place; and enable Nigeria to fully satisfy its obligations
under the various International Copyright Instruments, which it has earlier
ratified or indicated interest to ratify.” The introduction of this
Bill  was necessitated by the need to repeal the outdated Copyright Act of
1988 and to upgrade the copyright legislation in Nigeria to catch up with
the constant development of digital technologies and current needs of copyright
protection in the world.

 REVIEW OF THE BILL

Although the Bill is
essentially derived from the current Copyright Act 1988 (“The Act” or
“Copyright Act”), there are a handful of noticeable differences. The Bill tries
to make up for loopholes in the Act and to improve on the protections accruing
to copyright owners thereby encouraging creativity and innovation as well as
enabling the developmental growth of the Nigerian economy.

The Bill introduces
certain new provisions, particularly as it relates to IP protection in the
digital space. It also amended/modified some existing provisions and totally
expunged some of the provisions in the Copyright Act. Some of the key
provisions in the Bill include:

1.     
FORMALITIES

Although it is general
knowledge that copyright protection is automatic upon the creation of the work
and there is no requirement for registration or other formalities before legal
protection can be conferred, this position is formally stipulated under section
3 of the Bill for the first time. The section provides that copyright
protection under the Bill shall not be subject to any formalities.

2.     
EXCEPTIONS
TO COPYRIGHT CONTROL

With respect to the defence of Fair Use, the Bill introduces
factors to be considered in determining whether a particular use of a
copyrighted work amounts to fair use or not. These factors include:

·        1.  The nature of the work

·         2. The amount and
substantiality of the portion used in relation to the work as a whole;

·         3. The effect of the use
upon the potential market for or value of the work; and

·    4. If the use does not
conflict with a normal exploitation of the work and does not unreasonably
prejudice the legitimate interests of the owner of copyright.

o   Special provisions for archives, libraries,
museums and galleries was introduced in section 21 of the Bill.

o    Section 22 also makes provisions for Special
exception to the use of copyrighted works by Blind, Visually Impaired or other
print Disabled persons.

3.     
OWNERSHIP
OF COPYRIGHT IN COLLECTIVE WORKS

The Bill provides that unless otherwise provided by agreement,
copyright in a collective work shall vest in the natural or legal person on the
initiative and under the direction of whom the work has been created. It
further provides that the authors of the works incorporated in a collective
work shall, unless otherwise agreed, retain the exclusive right to exploit
their works independently of the use of the collective work.

4.     
COMPULSORY
LICENCE FOR PUBLIC INTEREST

The Nigerian Copyright
Commission (NCC) is empowered under the Bill to authorize the use of
copyrighted material by any person for the purposes of: –

·        
Rectifying an abuse of
dominant market position;

·        
To remedy abuse of rights;
and

·        
To promote public
interest.

The following factors
must, however, be taken into consideration by the NCC before the authorization
of a compulsory license. These are:

1. That prior to such use, the
   proposed user has made efforts to obtain authorization from the owner of
   the protected material on reasonable commercial terms and conditions and
   that such efforts have not been successful within a reasonable period.
   This condition may be waived by the NCC in the event of a national
   emergency or other circumstances of extreme urgency or in cases of public
   non-commercial uses;
2. The owner of the copyright is
   accordingly notified;
3. The scope and duration of such
   use shall be limited to the purpose for which it was authorized;
4. Such use shall be non-exclusive
   and non-assignable;
5. Any such use shall be
   authorized exclusively for the domestic market;
6. Subject to adequate protection
   of the legitimate interests of the persons so authorized, the
   authorization maybe terminated if and when the circumstances which led to
   it being granted ceases to exist and are unlikely to recur;
7. Payment
   of adequate remuneration to the copyright owner, taking into account the
   economic value of the work authorized to be used.

AIDING AND PROCURING COPYRIGHT OFFENCES & SECONDARY
LIABILITY

Any person who aids or procures another person to commit an
offence under the Bill is deemed to be guilty of an offence and shall be liable
upon conviction to the same punishment as is prescribed under the Bill for the
commission of the main offence.

6.     
PROVISIONS
RELATING TO ONLINE CONTENT

This provision is
perhaps the major important innovative provision included in the Bill. This is
because for the first time, the Nigerian copyright legislation not only caters
for the protection of works produced and exchanged over the internet, it also
recognizes the menace of digital infringement of copyrights and consequently
makes provision for remedies. The Bill makes provision for, inter alia, the
following:

·        
Take
Down of Infringing Content

The owner of an infringed copyright work is entitled to issue a
notice in writing of such infringement to the appropriate internet service
provider (“ISP”) requesting for the take down or to disable access to the
infringing content or link to such content hosted on its system. Upon receipt
of such notice, the ISP shall promptly notify the subscriber responsible for
the infringing content informing him or her of the notice. If after 10 days,
the subscriber fails to provide justifiable reasons for continuing to keep the
infringing content, the ISP is empowered to take down or disable access to such
infringing content and thereafter notify the copyright owner. Conversely, where
the subscriber provides a justifiable reason for not removing the infringing
content, or where the ISP is convinced that the complaint of the alleged
copyright owner is without merit, the ISP shall promptly inform the copyright
owner of his decision not to take down the content. 

·        

Suspension
of Accounts of Repeat Infringers.

The ISP, upon receipt of notice of repeat infringement of a
copyright work, shall suspend the account of the alleged repeat infringer for
at least one month after sending him or her warnings to that effect. A
subscriber receiving such a warning may challenge the notice on grounds of
mistake or misidentification.

·        
Blocking
Access to Online Content etc.

Under the proposed amendment to the law, the NCC has the power
to block or disable access to any content or link, hosted on a system or
network, which it reasonably believes to infringe the rights of copyright
owners.

7.     
APPOINTMENT
OF DIRECTOR GENERAL OF THE NCC

In addition to the criteria for the appointment of the
Director-General (DG) of the NCC, the Bill provides that the DG must also be a
legal practitioner with not less than fifteen (15) years post-call experience
and must be knowledgeable in copyright law and administration. The Bill
also modifies the criteria for membership of the governing board of the NCC.

8.     
REGULATION
OF A COLLECTIVE MANAGEMENT ORGANISATIONS

o    Section 74 allows for the establishment of a
collective management (CMO) for the management of the rights of copyright
owners upon the approval of the NCC.

o    Any organization that operates as a CMO
without the approval of the NCC, shall be guilty of an offence and shall be
liable on conviction to a fine of N500,000.00 or to imprisonment for a term not
exceeding three years or to both such fine and imprisonment.

o    Where the above contravention is by a body
corporate, it shall be guilty of an offence and liable to a fine not exceeding
N2,000,000.00.

ESTABLISHMENT
OF A DISPUTE RESOLUTION PANEL

The NCC has the discretion under the Bill to constitute a
dispute resolution panel charged with the responsibility of resolving disputes
relating to the payment of royalties or terms of a license or any other matter
as maybe authorized by the NCC. The panel shall comprise of three persons
knowledgeable in copyright matters. Any person dissatisfied with the decision
of the panel may appeal to the Federal High Court.

 JURISDICTION

The Federal High Court shall have exclusive jurisdiction for the
trial of offences and the trial of offences shall be by summary trial.

 CONCLUSION

The Draft Copyright
Bill is indeed an improvement on the current Copyright Act. The Bill takes into
consideration some modern exigencies which have since affected and are still
affecting copyright protection since the enactment of the Copyright Act in 1988.
It is commendable that steps have been taken to incorporate solutions to
contemporary issues as it relates to the infringement of intellectual property
rights over the internet. When finally enacted, the provisions of the Bill
will, to a large extent, better protect owners of copyrighted works.

However, the Bill still omits certain important provisions on
copyright protection. Although the growth of digital technologies and the
perpetually growing internet in modern times has greatly enhanced copyright development,
unfortunately, it has also fostered the ease of infringement of copyright
works. The porosity of the digital environment has greatly encouraged
wide-spread sharing of protected works mostly without authorization and the
provisions of the Copyright Bill is inadequate to counter copyright piracy
especially infringement in cyberspace. 

Firstly, we recommend
that the committee responsible for reviewing the Bill should comprise of
experts in information and digital technologies. The input and technical
knowledge brought by these experts will be impactful in understanding and
re-drafting provisions of the Bill that will not only adequately cater for the
protection of copyright in a digital work but also more effectively prevent the
violation of the rights in such works.

Nigeria can take a cue from countries like the USA where special
protection is accorded to digital works by the enactment of several
legislations such as the Digital Millennium Copyright Act of 1998, and
enact a similar legislation protecting digital works in Nigeria. Alternatively,
the Bill should be amended to reflect special protections for digital works,
and it should also include stricter penalties for piracy and other forms of
copyright infringement through digital means. This will serve as a more
effective means of deterrence.

In addition, the government should domesticate some of the
international treaties to which Nigeria is a signatory as this will assist in
giving copyright owners better protections over their creations.

One of the major debates currently disrupting the global
copyright landscape is the ownership of computer-generated works especially by
Artificial intelligence (AI). While some countries are contemplating
attributing copyright to AI, countries like the UK and USA currently
attribute copyright protection over such works to the human authors responsible
for inventing the AI. The debates are still on-going as to whether an AI
should be able to claim copyright over works it creates especially where the
creator of the AI did not envisage the creation of such work or there was no
direct human contribution in the creative process. Although Section 24(1) of
the Copyright Bill only states that copyright in a work shall vest in the
author, by virtue of sub section (2) and section 25(1), it may be inferred that
the “author’’ in Section 24 above refers to a human being or the artificial
entities recognized under the Act. The Bill makes no further provision for
ownership of computer-generated works or for a work jointly authored by a human
being and a sentient machine.  In light of the above, it is therefore
pertinent that the Bill makes clearer provisions on the authorship of these
unique works, especially as it relates to works created by computers/
Artificial Intelligence.

With respect to the collective administration of copyrighted
materials in Nigeria, further legislative work is required to address the challenges
occasioned by the current Copyright Act on the appointment of sole collective
management societies in the various genres of protected works. The
lingering disputation between the Copyright Society of Nigeria (COSON) and the
Musical Copyright Society of Nigeria (MCSN), the recent suspension of COSON and
authorization granted to MCSN to function as a collecting society by the
Commission are a reflection of the multiple challenges faced by copyright
owners, managers and stakeholders in this area. Furthermore, the recent
decisions of the Nigerian Supreme Court in Adeokin Records and Compact
Disc Technology Ltd., have also introduced additional complexities
deserving of urgent legislative attention.

It is recommended that
since the Bill is yet to be enacted, it should be withdrawn from the
legislative House and reviewed to accommodate modern developments in the field
of copyright law and administration, before it is eventually passed into law.

Source: http://bit.ly/2rC85Cv 

For further information on this article and area of law, please
contact

Bisola Scott at: S. P. A. Ajibade & Co., Lagos by
telephone

(+234.1.811.389.8102 or 234.12703009; 14605091; 14605092)

bscott@spaajibade.com

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