Part 3 – What’s Changed in Nigeria’s Copyright Law? - Comparative Analysis of the “New” Copyright Act, 2022 (“CA22”)

1.0 What Agency Regulates Copyright in Nigeria?

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1.1 The Nigerian Copyright Commission (NCC). Part 10 of the CA22 which established the NCC maintains the status quo as was in part 3 of the old law, but contains more robust provisions. There’s a detailed schedule on proceedings of the NCC’s Governing Board, and a provision on tenure of office for members of the Board. It’s only in the case of the Chairman that section 79(1) says to be appointed by the President on recommendation of the Minister (this is also the case for the Director General _ section 83(1)).

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1.2 A feature not in the old law – a Dispute Resolution Panel in the NCC to resolve any disputes arising from payment of royalties, terms of a licence, and any matter that the CA22 requires/empowers the NCC to make a decision. _ Section 90 CA22. A person who’s dissatisfied with any decision of this panel is free to apply to the Federal High Court for review of the decision. (Note that section 90 is specific about disputes that may be resolved by the NCC Dispute Resolution Panel. This does not amount to usurping powers of the Federal High Court which has exclusive jurisdiction as far as litigating claims under the CA22 is concerned. It’s just that when the specific issues mentioned in section 90 arise, parties are free to approach the NCC’s panel to resolve it before exploring the court if dissatisfied. Please also note that section 90 did not make it compulsory for disputing parties to first approach the NCC’s panel. The section merely empowers the NCC to set up that dispute resolution avenue as an option for parties to resolve such disputes without litigation. The law has NOT made approaching the NCC a condition precedent to litigation.)? There’s also now distinct provision in part 2 of the CA22 on the NCC’s funding and budget. The NCC also has powers to take loans and invest its funds.

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1.3 Section 100(1) is commendable. There’s a significant difference from section 49(1) of the repealed law which prohibited execution of courts’ judgement against the NCC. Generally, such clauses have a tendency to encourage non-compliance with judgements because of an appearance of being untouchable. But in a democracy no one and no government agency should be above the law.

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1.4 Section 100(1) of CA22 is a step in the right direction to encourage accountability. It clarifies that there shall be no execution on the NCC unless at least 3 months’ notice of intention to execute that judgement or order has been given to the NCC. The idea is the NCC has ample opportunity to comply of its own volition. But if it fails to do so within the time frame ordered by a court, a judgement creditor should write to the NCC that if it fails to comply in 3 months, the judgement will be executed against the NCC.

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1.5 An interesting new provision – section 101. A staff of the NCC shall be indemnified out of the assets of the NCC for any proceedings brought against the staff in such capacity, for acts within their powers. Not bad at all. Poser: What if the proceedings are brought against the staff by the NCC???

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2.0 Keeping it Real

2.1 There are provisions I’m not particularly excited about.

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2.2 Section 80(2) says that the President can remove the Chairman and any member of the Governing Board. For the Chairman – it’s understandable to expect that the President can fire since the appointment is by the President. But what's the rationale for the President having unilateral power to fire any other member of the Board when their appointment is not by the President? Are you seeing what I’m seeing???

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2.3 Sections 31 to 35 replicate the 4th schedule of the old law. These sections give the NCC power to compulsorily grant licence to a 3rd party to produce and publish translations of a literary work, etc. It’s interesting to note that the 3rd party applicant is to prove that a request has been made to the owner of the copyright who has denied the request, or the applicant is unable to find the copyright owner. To my mind, this idea of compulsory licensing should only arise where the copyright owner or their estate cannot be found. So long as a copyright owner exists and they have declined the request, why should you (in good conscience) want to bypass the copyright owner?

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2.4 We must not forget the statutory nature of copyright described in sections 9 to 13. For literary works, for example, section 9 says copyright entails the EXCLUSIVE RIGHT to do or authorize the doing of acts such as reproduction, publication of translation of a work, etc, and it’s stated to be subject to part two of the CA22, i.e sections 20 to 27 that deal with exceptions to copyright – no other part. Emphasis on the word “exclusive” – i.e excluding everyone, even the government or a government agency. The very nature of the copyright spectrum does not envisage giving any entity veto power over the right/choice of a copyright owner while their right subsists.

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2.5 I get the idea where the copyright owner or estate cannot be found, but otherwise – I’m yet to see the sound legal or moral basis for retaining the provision as it was in the repealed law. Anyone with unique insights into this, please share. Let’s hope this doesn’t become be an abusable loophole.

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2.6 A notable change is visible in section 86 of CA22. It states powers of Copyright Officers (same as copyright inspectors in the repealed law). It expressly empowers the officers in section 86(2) to enter and examine any premises at any reasonable time WITHOUT A WARRANT. This was not in the old law. I believe there are upsides to this and it’s well intended to prevent offenders being tipped off & they evacuate pirated works, etc.

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2.7 Still, it’s important to be aware of potential for abuse, and create measures to prevent abuse. Perhaps that’s the essence of Section 86(4) which clarifies that copyright officers shall exercise their powers as defined under the Police Act, 2020 and other relevant enactment.

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2.8 But I can think of two potential interpretations of the power of search with a combined reading of subsections (4) and (2). On the one hand we can say it’s only reasonable to expect that procedure protecting integrity of a search be adopted in line with the Police Act and procedural laws like the Administration of Criminal Justice Act, etc. That if a copyright officer can have powers, rights and privileges of a police officer, it’s only reasonable that they embrace the concomitant duties in appropriate circumstances. On the other hand, it may be said that subsection (4) merely gives these officers the powers of the Police described in the Police Act – but not necessarily meaning they have to comply with the Act. Specifically, section 48(1) of the Police Act, 2020 requires authorization of a search of premises. Time will tell, I guess.

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2.9 Unlike section 43 of the old law which allows for certain presumptions applied generally, section 43 of CA22 makes those presumptions applicable to works registered by the NCC. I’m not particularly cool with this – I guess it’s a way of encouraging registration of works with the NCC. Section 87 codifies the NCC’s pre-existing practice of registering works eligible for copyright, and clarifies that registration in and of itself does not confer copyright. So, section 43’s allowing those presumptions only in respect of registered works seems like taking back with the left hand that which has been given with the right hand, or rather watering down the provision which already states that copyright protection is automatic and requires no formality (e.g, registration). Anyways, in the rules of Evidence a party is always at liberty to supply credible evidence capable of debunking the veracity of presumptions backed by a certificate.

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In part 4 of this series, we’ll look at what’s new with copyright disputes. Rub your palms together in anticipation.?? Till next time, be well.