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Fundamental Elements of Copyright Ownership and Protection Under Nigerian Law - Sandra Eke

posted 4 years ago

A Copyright is a legal
protection granted to creators or originators of creative expressions, whether
Literary, Musical, Artistic or Cinematographic works or an adaptation of any of
these eligible works. It confers an exclusive and assignable right to the originator
of the work, which though exclusive to the author, is subject to the recognised
legal rights of others. It is not sufficient that an idea or concept has been
formulated in the creator’s mind, such work must also be expressed or fixated
in some medium, such as paper, diskettes, flash drives, CD-ROM, VCD, DVD etc.,
for it to be protected. In some jurisdictions, the protection granted has
less regard for how good or sophisticated the work is, rather the emphasis is
on the originality of the work. While some other jurisdictions, like a few
common law countries, require that some level of skill and judgement must have
been expended in creating the work, Nigerian law requires that the author must
have expended sufficient effort to give the work an original character.
 In addition to skill and judgement,
some civil law countries require creative efforts and a demonstration of
the author’s personality in creating a work.

 

1.      What
Are the Applicable Copyright laws or regulations in Nigeria?

The Copyright Act is
the principal law that protects copyrighted works in Nigeria. The Nigerian
Copyright Commission (NCC) is the body charged with the responsibility of
administering the Copyright Act. Asides the Copyright Act, there are some other
regulations like the Copyright (Optical Discs Plants) Regulations 2006,
Copyright (Collective Management Organizations) Regulations 2007, and Copyright
(Levy on Materials) Order etc.

In addition, Nigeria is a signatory to some international
treaties, agreements and conventions like the Berne Convention (1886), The
Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement (1994),
WIPO Copyright treaty (1996) etc., which have also stipulated additional
prescriptions to be observed by members or signatories.

2.      Are all
works eligible for Copyright protection?

Not all kinds of works are eligible for Copyright protection in
Nigeria. Section 1 of the Copyright Act stipulates that the various kinds of
works that are protectable in Nigeria are:

1.     
Literary works;

2.     
Musical works;

3.     
Artistic works;

4.     
Cinematograph films;

5.     
Sound recordings; and

6.     
Broadcasts.

It should be noted that formulas or equations, ideas, or things
of a related nature do not enjoy Copyright protection in Nigeria.

The Copyright Act further
prescribes additional connecting factors to be met before a putative author of
a work can claim copyright protection in Nigeria. The author must be a Nigerian
citizen or must be domiciled in Nigeria or should be a company incorporated in
Nigeria and the work must have been first published in Nigeria. Copyright
protection could also be conferred on works of authors or corporate bodies from
other jurisdictions who are a party to international treaties, agreements or
organisations to which Nigeria is also a party, upon satisfaction of the
condition that on the day the work is first published, at least one of the
authors is a citizen or corporate body established under the laws in the
country which is a party to an international agreement or organisation Nigeria
is also a party.

 

3.      Is
registration a condition for copyright protection?

Generally, registration
is not required for copyright protection, since copyright protection is
automatically enjoyed upon creation and fixation of the work in a definite
medium of expression. In addition, the Berne Convention prohibits compliance
with any formalities before the enjoyment of copyright protection in member
states who are signatories to the convention. This provision was revised
in the 1908 Berlin revision of the Convention by the present rule of
formality-free protection, contained in Article 5(2) of the Paris Act 1971,
which clearly stipulates that the enjoyment and the exercise of copyright shall
not be subject to any formality. While incorporating and abiding by the
principles of the Berne Convention, most member states have introduced
voluntary national registration or notification systems for copyrights, which
accords better protection and benefits to copyright holders. For instance, in
the United States, copyright registration provides verifiable evidence of
authorship and entitles a claimant in a copyright infringement action to
statutory damages. It also entitles the owner of a copyright to deposit
his work in the database of the U.S. Customs and Border Protection (CBP) as a
shield against the importation of works that infringe on the right of the
copyright owner.

In Nigeria, the Nigerian
Copyright Commission has introduced an online notification database to assist
authors and creators in protecting their works more effectively.

 

4. What are the
benefits of lodging a notification of a work with the NCC? 
The records
compiled by the NCC serves as an independent source of vetting the authenticity
of data relating to a copyrighted work or its ownership, to the general public;

·        
The database of the NCC provides useful and accessible
information to prospective licensees.

·        
The acknowledgement certificate issued by the NCC to the
originator of the work serves as prima facie evidence to establish creation and
ownership of a work;

·        
The records contained in the notification database also helps in
the collation of national statistics on creativity and culture;

·        
The NCC ensures that original copies of works lodged are well
preserved in its depository. The Copyright Act mandates the NCC to maintain a
database for all works lodged.

 

5. What is the
procedure for lodging a notification with the NCC?

To lodge a notification at the NCC, the Applicant is required to
file an application with the following accompanying documents:

1.     
A completed registration form.

2.     
Two (2) copies of the work.

3.     
Evidence of payment of the prescribed fee.

4.     
A letter of authority duly executed by the author of the work,
authorizing his lawyer/agent to lodge the copyrighted material or to receive
the certificate of registration on the author’s behalf.

The NCC identifies some
additional information required to complete the registration form:

·        
Title of the work.

·        
Medium in which the work is represented (e.g. CD, Paper, VCD,
DVD etc.)

·        
Year of Creation of the work. This should be the year it was
first fixed in a tangible medium.

·        
Year and country of publication (if published).

·        
Bibliographic and other registration Information (ISSN, ISBN or
Others).

·        
Details of Co-owner if any (Full name, address, email, mobile
number).

·        
Full details of Author (Including date of birth, nationality,
and country of residence).

·        
Indicate if the work is based on a previous edition or
pre-existing work.

·        
Name, email address and mobile number of correspondent (Person
to contact for licenses and permission).

·        
Where Applicant is not the original author/copyright owner, but
has acquired a right in the work, the particulars of such right should be
provided. State the nature of transfer, whether it is a license or an assignment;
the parties, territory covered and duration, where applicable.


6. Conclusion

Copyright protection
confers exclusive rights to an originator of a work, which gives the author an
opportunity to enjoy certain privileges ranging from the rights to
reproduction, distribution, and adaptation of the work to rights of public
performance, broadcasting and communication of the work to the public etc. These
rights also have several limitations enshrined in the Copyright Act. Although,
registration of a copyrighted work is not a pre-condition for copyright
protection, the benefits of lodging a notification of a work with the national
depository far outweighs any perceived negatives. With the growing number
of copyright infringement cases and the difficulties associated with proving
prior ownership or authorship of a work, depositing a work in the robust
databank of the NCC, would be a wise decision for authors and creators to
undertake, and an IP lawyer’s professional services should be retained in this
regard.

 

 

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

Sandra
Eke
 at: S. P. A. Ajibade & Co., Lagos

by telephone (+234 1 472
9890), fax (+234 1 4605092)

Mobile:
+234.7033442333 or Email: [email protected]

www.spaajibade.com

 

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