APPLICATION OF COPYRIGHT LAW AND ITS INFRINGEMENT IN NIGERIA PRESENT CONTEMPORARY SOCIETY

1
APPLICATION OF COPYRIGHT LAW AND ITS
INFRINGEMENT IN NIGERIA PRESENT CONTEMPORARY
SOCIETY
RESEARCH PAPER BY AKINDIOSE OPEYEMI
SUPERVISED BY JAMIU ADERAJI
1.0 INTRODUCTION
Copyright law grants exclusive rights to the rights holder to control the use or
otherwise of their works. It is important for right-holders such as producers to
have a good understanding of existing copyright law to enable them effectively
apply and enforce the law. The law without actual enforcement is of no use to
those it seeks to protect and thus the need for right holders to understand the
basic principle in copyright law and how it affect them as well as how they can use
the law to their advantage.
Copyright law protects the right of right holders in sectors such as film, book
publishing, music, visual arts, among others. It is law which if properly
administered and enforced is of great value to right holder as well users of
copyright protected works. Unfortunately there are instances, where right holders

2
in the entertainment industry hardly understand what copyright is about. This
affects the ability of producers to optimize on their creativity. In many instances
emphasis is on contract law with little reference to copyright matters. Lack or
limited knowledge of copyright and related rights inhibits the growth of copyright
industries. In other instances, copyright owners such as producers will only refer
to copyright in cases of infringement of their rights. Copyright protect the original
expression of ideas and not the ideas themselves.
The converging market of information technology, media/entertainment and
telecommunication are expected to become the world's single largest industry.
These copyright industries may have moved centre-stage to dominate the
economies of nations but their existence is threatened by privacy and
counterfeiting which have now reached epidemic proportions.
1.2 BACKGROUND STUDY
This study is done against the background of the prevailing discourse in the
application of copyright and its infringement in Nigeria present contemporary
society. Thus preliminary data indicate that while Nigeria's copyright-based
industries already contribute as much as 1.2 trillion naira (US $7.5 Billion) each
year to the Nigerian economy, they have potential to contribute between 5 and
10 percent annually. If we are to fully realize the potential of our creative

3
industries and if Nigerians are to reap the multiple benefits this promises, we
need to create an environment in which the rights of creators are respected- an
environment with zero tolerance for piracy. In spite of this enormous growth
potential, widespread piracy is undermining the growth of Nigeria's creative
sector.
Thus the Business Sufferance Alliance (BSA) estimates worldwide annual loss to its
members to the tune of US Dollars 15.2 Billion. According to the International
Film Producing Industry (IFPI), in their market report for the year 1996, they
estimate a total music market in India of 275 Million Dollars selling some 300
Million legitimate cassettes annually.
Piracy figures, although they from 1990s from a staggering 95% to 30% in the year
1995 yet India was considered the world's third largest pirate market in volume
and the sixth in value. The figures for the film industry and the book publishing
industry are of similar magnitude. In this regard this study will discuss the
complexity of the application of copyright in Nigeria and also the menace of
copyright infringement and its attendant economic consequence in Nigeria.
1.3 STATEMENT OF PROBLEM

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In Nigeria, there is a legal framework that controls and regulates the activities of
individuals as regards copyright. The copyright Act Cap C28 Laws of Federation of
Nigeria 2004 is the main legislation on copyright law in Nigeria.
It is trite to mention that even though there is an existence of a legal framework
in Nigeria that regulates copyright, its enforcement in practical terms have been
somewhat watered down by the existing reality in the country, thus making it
almost practically impossible to curb the menace of infringement of copyright in
Nigeria. It cannot be over emphasized that corruption has greatly contributed to
the depreciation and crumbling of the copyright industry. Furthermore, the
difficulty in the enforcement of copyright industry is also a major setback in the
copyright industry.
Ignorance and anxiety by the creator of a work to get his/her work published
without even making effort towards getting the work copyrighted first, is also
another problem facing the copyright industry. Moreover, the multifarious ways
of infringement is also another headache affecting the copyright industry.
With the above mentioned problems and predicament, it becomes very difficult
and almost practically impossible for the copyright industries to be economically
viable and buoyant.
1.4 OBJECTIVES AND AIMS OF STUDY

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The aims and objectives of the study are to;
1. Briefly explain the concept of copyright and its historical basis
2. Present an overview of the statutory framework relating to copyright in
Nigeria.
3. Identify the types or classes of copyright protections available in Nigeria
especially the powers of the court in relation to the same with respect to
jurisdiction.
4. Examine factors forming the basis upon which infringement of a copyright
can be said to have occurred.
5. Identify the impediment and challenges to the enforcement of copyright
laws as well as the various remedies available to an aggrieved person
whose work has been infringed upon.
6. Advance suggestion and recommendation for tackling the challenges
identified.
1.5 SIGNIFICANCE OF THE STUDY
This project is cogent within the context of the prevailing circumstances in the
country today. It is well known fact that the Nigerian Copyright industry has been

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bastardized, undermined, relegated and almost ruined, works of authors are not
usually automatically protected, hence it is very important and cogent to sensitise
and orientate creator of works of art as to the importance of copyright.
This work serves as an important purpose of looking at this problem as regards
the protection of a creator of art, infringement of copyrighted works, and also the
remedies available to a creator of work who has been hurt by the activities of
bootleggers, counterfeiting etc. This work will also be an important contribution
to the current and persistent discourse on the concept of copyright.
1.6 RESEARCH METHODOLOGY
The method to be used to carry out this work is descriptive and analytical. Major
primary and secondary sources of law would be considered for the proper
appraisal of this topic. The primary sources include; the copyright Act Cap C28
Laws Of Federation 2004. The secondary sources includes; international articles,
conventions, charters, online materials, journal articles and textbooks touching on
the subject matter. Judicial decisions of Nigeria and foreign courts where
applicable will also serve as useful instrument in the discussion of this topic.
LITERATURE REVIEW

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For authors, artist, songwriters, music publishers and composers, photographers
and other creators, copyright provides the assurance that they can share their
work with the public without the fear of unauthorized use. It covers book
publishing, photography, sound recording, broadcasting, film production etc. And
gives creators the right to control the ways their materials are used by others i.e
copying, adapting, distributing, performing in public, rental or the public.
In a workshop on copyright organized by The Nigerian Copyright Council in
collaboration The Nigerian Reform Commission, Held at the National Theatre,
Lagos,27th
March, 1990, Barrister Bankole Sodipo Esq defined copyright was
defined as right that floats in the air which only crystallizes, clutches, fasten unto
and protects certain works, which satisfy certain conditions (for a period of time).
Also Copyright as defined by Marisella Ouma grants exclusive rights to the rights
holders to control the use or otherwise of their works.
In Nigeria, copyright is protected by the copyright act as contained in chapter c28
laws of federation of Nigeria, 2004 and its administered by the Nigerian copyright
commission. The Nigerian copyright act provides for literary, musical and artistic
works, cinematography, sound recordings and broadcasting.
Generally, the subject matter of this research project has been the subject of
various discourses in the copyright industry. Authors, commentator, scholars etc

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have advanced various definitions and recommendations in this particular
subject. Various issues and problems have been highlighted and extensively and
thoroughly debated yet the Nigerian copyright industry is yet to achieve the
standard attainable in various contemporary societies. Although the Nigerian
Copyright Act has been rightly described as one of the most comprehensive in the
world, today it cannot of its own force benefit the right owner.
Some of the predominant problems highlighted by scholars are;
1. Inadequate and ineffective legal framework for the protection of copyright
in Nigeria
2. Orientation of authors or creators of works about the significance of
copyright
3. ineffective market strategy for distribution of copyright works in Nigeria
4. encouragement of infringement of copyright works by media houses
5. The lack of will to enforce copyright laws by executors of law
6. Lack of effective institution/organisation for the enforcement of copyright
7. Inability of the Nigerian Copyright Council to maintain same pace with
Copyright institution of other jurisdiction especially with the advancement
of technology in the world at large.

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In light of the above, this research project will attempt to discuss the application
and remedies of infringement of copyright laws in Nigeria and also suggest
recommendations for its improvement.

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1.8 MEANING OF COPYRIGHT
A copyright is a legal device that gives the creator of a literary, artistic, musical, or
other creative work the sole right to publish and sell that work. Copyright owners
have the right to control the reproduction of their work, including the right to
receive payment for that reproduction. An author may grant or sell those rights to
others, including publishers or recording companies.
Copyright is a property right in an original work of authorship {including literary,
musical, dramatic, choreography, pictorial, graphic, cultural, architectural, sound
recording} fixed in any tangible medium of expression, giving the holder exclusive
right to reproduce, adapt, distribute, perform and display the work.1
Copyright is distinct from other forms of creator protection such as patents, which
gives inventors exclusive rights over use of their inventions, and trademarks,
which are legally protected words or symbols or certain other distinguishing
features that represent products or services. Similarly, whereas a patent protects
the application of an idea, and a trademark protects a device that indicates the
provider of a particular services or goods, copyright protects the expression of an
idea. Whereas the protective notion in patents is novelty, so that a patent
represents some invention that is new and never been made before, the basic
1
Black's Law Dictionary 8th ed. (West Group, 2004), Bryan A. Garner, editor, U.S.A

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concept behind copyright is originality, so that a copyright represents something
that has originality from a particular author and not from another. Copyright,
patents, and trademarks are all examples of what is known in the law as
intellectual property.
As the media on which artistic and intellectual works are recorded have changed
with time, copyright protection has been extended from the printing of text to
many other means of recording original expressions. Besides books, stories,
periodicals, poems, and other printed literary works, copyright may protect
computer programs; musical compositions; long lyrics; dramas; dramatic-musical
compositions; pictorial, graphic, and sculptural works; architectural works;
written directions for pantomimes and choreographic works; motion pictures and
other audiovisual works; motion pictures and other audiovisual works; and sound
recordings.
Copyright is a legal concept, enacted by most governments, giving the creator of
original work exclusive rights to it, usually for a limited time. Generally, it is "the
right to copy", but also gives the copyright holder the right to be credited for the
work, to determine who may adapt the work to other forms, who may perform
the work, who may financially benefit from it, and other related rights. It is a form
of intellectual property (like the patent, the trademark, and the trade secret)

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applicable to any expressible form of an idea or information that is substantive
and discrete.2
Copyright initially was conceived as a way for government to restrict printing; the
contemporary intent of copyright is to promote the creation of new works by
giving authors control of and profit from them. Copyrights are said to be
territorial, which means that they do not extend beyond the territory of a specific
state unless that state is a party to an international agreement. Today, however,
this is less relevant since most countries are parties to at least one such
agreement. While many aspects of national copyright laws have been
standardized through international copyright agreements, copyright laws of most
countries have some unique features.3
Typically, the duration of copyright is the
whole life of the creator plus fifty to a hundred years from the creator's death, or
a finite period for anonymous or corporate creations. Some jurisdictions have
required formalities to establishing copyright, but most recognize copyright in any
completed work, without formal registration. Generally, copyright is enforced as a
civil matter, though some jurisdictions do apply criminal sanctions.
Most jurisdictions like U.S.A, UK and France etc. recognize copyright limitations,
allowing "fair" exceptions to the creator's exclusivity of copyright, and giving users
2
Wo ld I telle tual p ope t O ga izatio . U de sta di g Cop ight a d ‘elated ‘ights WIPO. Pp. -7. Retrieved
August 2008.
3
I te atio al Cop ight La “u e Mi o La Co po atio . www.mincovlaw.com

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certain rights. The development of digital media and computer network
technologies have prompted reinterpretation of these exceptions, introduced
new difficulties in enforcing copyright, and inspired additional challenges to
copyright law's philosophic basis. Simultaneously, businesses with great economic
dependence upon copyright have advocated the extension and expansion of their
intellectual property rights, and sought additional legal and technological
enforcement.
The Nigerian Copyright Act did not define what copyright is, it only described
works that are copyrightable4
. The eligible works for copyright protection under
the Nigerian Copyright Act are:
a) Literary works
b) Musical works
c) Artistic works
d) Cinematograph films
e) Broadcast.
However, a distinguished legal writer5
has made efforts to define copyright as:
4
S.1{1} Copyright Act Cap.C28 Law of Federation of Nigeria (2004)
5
Prof Uvieghara E.E Essay On Copyright Law And Administration In Nigeria, 1
st
Ed. Y-Book Ltd. Ibadan 1992 P.15

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The e lusi e ight given under the law to the owner
of copyright to control the reproduction of the work
hi h is su je t of op ight.
Thus, copyright is an exclusive right vested in author of literary, artistic, musical
works, cinematograph films, sound recordings and broadcast which right is
subject to the operation of the law.
The protection of copyright becomes necessary and cogent due to the following
reasons;
First and foremost, the effective protection of copyright is a necessary incentive
for creation of works and a sine qua non for encouraging indigenous talent to
devout its energy to furthering national intellectual creativity.
Thus, without copyright protection, authors will have no incentive to create
intellectual works. Protection of authors will encourage them to create further
work and this will enrich the country reserve of literature, drama, music, etc.
Moreover, the investment that is sometimes necessary for creation of works in
case of film making, book making, or architectural work, for instance will be more

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easily obtained if more protection exist and such protection is indispensable for
encouraging such investment6
.
Copyright protection has cogent economic aspect, the economic aspect of
copyright varies depending on the stages of development and on a number of
special national factors for example in Sweden, the 1978 gross national product
showed that material which copyright contributed constitute 6.6 percent to GNP7
in addition, the international copyright system has played significant role in
facilitating urgent needs for the newly developing countries to have access in a
less expensive way to the work of some countries that have developed and at the
sa e ti e assisti g the eeds fo the p ote tio of the autho s ight i thei
relevant legislation.
Lastly, national and international protection which is provided by national and
international convention have encouraged teaching materials including literary,
artistic and scientific works.
As any creative person will readily attest, much energy is usually expended by an
author to ensure that the product of his creative efforts meets the required
aesthetic and functional standards. The author is often in his chosen trade as a
professional with the natural and legitimate expectation that the financial gains
6
P.Goldstein, Copyright principle, law and practice Little Broown and Coo Boston, Toronto, London, 1989 para 1.1
7
Op cit

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from his business would be available to him and, after his death, to his spouse
and children.8
Invariably, his position in life and the comfort of his family depend on what he
gets from the practice of his trade. He should, therefore, be given the benefit of
surviving on his hard earned remuneration.
In all these, the society also benefits immensely. There is empirical statistical
evidence that the effective protection of copyright is an incentive for more
creativity. Potential authors are encouraged to explore their talents and produce
o e o ks. This ould i a ia l e i h the atio s epe toi e a d e ha e
social, economic and cultural development. More than ever before, copyright
related industries are vital sources of revenue. Their contribution to the gross
national product of countries where effective protection exist has been amazing
and they are particularly affordable and therefore recommended for a depressed
economy like ours bearing in mind the abundance of untapped creative gains in
our society.
1.9 HISTORICAL DEVELOPMENT OF COPYRIGHT
The history of copyright starts with early privileges and monopolies granted to
printers of books.9
The B itish statute of A e , full title A A t fo
8
Op cit p.10

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encouragement of learning, by vesting the copies of printed books in the Authors
o Pu hase s of su h opies, du i g the Ti es the ei e tio ed , as the fi st
copyright statute. Initially, copyright law only applied to books. Over time, other
uses such as translation and derivative works were made subject to copyright and
copyright now covers a wide range of works, including maps, performance,
paintings, photographs, sound recordings, motion pictures and computer
programs.
Today national copyright laws have been standardized to some extent through
international and regional agreements such as Berne Convention and the
European copyright directives.10
Although the e a e o siste ies a o g atio s
copyright laws, each jurisdiction has separate and distinct laws and regulations
about copyright. Some jurisdictions also recognize moral rights of creators, such
as the right to be credited for the work.
Copyright are exclusive rights granted to the author or creator of an original work,
including the right to copy, distribute and adopt the work. Copyright does not
protect ideas, only their expression or fixation. In most jurisdictions, copyright
arises upon fixation and does not need to be registered. Copyright owners have
the exclusive statutory right to exercise control over copying and other
9
http://en.wikipedia.org/wiki/History_of_copyright_law
10
http://www.tvoop.com/copyright-policy

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exploitation of the works for a specified period of time, after which the work is
said to enter the public domain. Uses which are covered under limitation and
exceptions to copyright, such as fair use, do not require permission from the
copyright owner. All other uses require permission and copyright owner can
license or permanently transfer or assign their exclusive rights to others.
1.9.1 EARLY DEVELOPMENT
The earliest recorded historical case-law on the right to copy comes from ancient
Ireland. The cathach is the oldest extant Irish manuscript of the Psalter and the
earliest example of Irish writing. It contains a Vulgate version of Psalms XXX {10}
to CV {13} with an interpretative rubric or heading before each psalm. It is
traditionally ascribed to Saint Columbia as the copy, made at night in haste by a
miraculous light, of a poster lent to Columba by St. Finnian. A dispute arose about
the ownership of the copy and king Diarmait Mac Cerbhail gave the judgement
To every cow belongs her calf; therefore to every book belongs its copy.11
Modern copyright law has been influenced by an array of older legal rights that
have been recognized throughout history, including the moral rights of the author
who created a work, the economic rights of a benefactor who paid to have a copy
made, the property rights of the individual owner of a copy, and a sovereign's
11
‘o al I ish A ade . The Catha h/The Psalte of “t Colu a Library Cathach

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right to censor and to regulate the printing industry.12
The origins of some of
these rights can be traced back to ancient Greek culture, ancient Jewish law, and
ancient Roman law. 13
In Greek society, during the sixth century B.C.E., there
emerged the notion of the individual self, including personal ideals, ambition, and
creativity. 14
The individual self is important in copyright because it distinguishes
the creativity produced by an individual from the rest of society. In ancient Jewish
Talmudic law, there can be found recognition of the moral rights of the author
and the economic or property rights of an author. 15
Prior to the invention of
movable type in the West in the mid-15th century, texts were copied by hand and
the small number of texts generated few occasions for these rights to be tested.
During the Roman Empire, a period of prosperous book trade, no copyright or
similar regulations existed; 16
copying by those other than professional
booksellers was rare. This is because books were, typically, copied by literate
slaves, who were expensive to buy and maintain. Thus, any copier would have
had to pay much the same expense as a professional publisher. Roman book
sellers would sometimes pay a well regarded author for first access to a text for
12
http://www.inflibnet.ac.in/ojs/index.php/TRIM/article/view/1677/1480
13
Bettig, Ronald V. {1996}. Copyrighting Culture: The Political Economy of Intellectual Property. Boulder, Colorado:
Westview Press p.11 ISBN 0-8133-1385-6
14
Ploman, Edward W., and L.Clark Hamilton {1980} Copyright. Intellectual Property in the Information Age.
London: Routledge & Kegan Paul. P.5 ISBN 0-7100-0539-3
15
Ploman, Edward W., and L.Clark Hamilton {1980} Copyright. Intellectual Property in the Information Age.
London: Routledge & Kegan Paul. P.7 ISBN 0-7100-0539-3
16
Martial, The Epigrams, Penguin, 1798, James Mitchie

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copying, but they had no exclusive rights to a work and authors were not normally
paid anything for their work.
1.10 INTERNATIONAL PROTECTION OF COPYRIGHT
Copyrights and other intellectual property have become increasingly important to
the worldwide economy. As the worldwide economy and international trade has
grown, it has become crucial that copyrighted works be protected on an
international basis. However, protecting anything on an international basis poses
substantial problems since each country operates independently with its own
laws. There is no such thing as an international copyright law which would
provide copyright protection on a worldwide basis. Instead, most countries have
their own copyright laws which are not applicable outside of their borders.
1.10.1 What is International Copyright?
Copyrights are protected on an international basis based upon a system of
treaties (agreements or contracts between two or more countries).17
Under these
t eaties, ou t ies ag ee to gi e p ote tio to othe ou t ies op ighted o ks
as long as the other countries agree to do the same. The vast majority of the
countries in the world are members of one or more copyright treaties which
17
http://www.copyrightguru.com/belmont_classes/IntellectualProperties/LectureNotes/topic10_international/int
ernational_copyright.htm

21
collectively assure a degree of international protection for copyrighted works.
Most of the countries of the world have signed one or more treaties dealing with
copyright. In essence, the various treaties between countries are like a network of
copyright laws.
1.10.2 The Berne Convention Of 1886
The first international copyright convention was held in Berne, Switzerland in
1886 and resulted in an agreement called the Berne Convention for the
Protection of Literary & Artistic Works (commonly known as the Berne
Convention).18
Most of the major countries in the world are members of the
Berne Convention and it is consequently the single most important copyright
treaty (a list of all countries who are members of the Berne Convention can be
downloaded or viewed here under "Contracting Parties"). The Berne Convention
is administered by the World Intellectual Property Organization (WIPO), an
agency of the United Nations based in Geneva, Switzerland. The vast majority of
countries in the world are members of the Berne Convention as shown by the
world map below (countries in blue are Berne members).
a. The National Treatment Principle
18
Ibid

22
The Berne Convention is based on what is known as the principal of national
treatment.19
This means each Berne member country agrees to give citizens of
other member countries at least the same degree of copyright protection that it
gives to its own citizens.
b. Minimal Protection
In addition to national treatment, the Berne Convention also imposes certain
minimum standards of protection that all member countries must guarantee.
Some of the most important of these minimum standards are20
:
The duration of copyright protection must be at least for the life of the author
plus 50 years.
Each member country must provide moral rights which can never be transferred
by an author.
Member countries must provide in their law for rights including reproduction,
translation, adaptation and public performance (these rights are similar, although
not identical to the right provided by section 106 of the U.S. Copyright Act). Berne
also requires the recognition of the moral rights of attribution and integrity which
the U.S. only recognizes to a limited extent under its copyright law (i.e., certain
19
Op cit p.16
20
Supra

23
visual works of art). The law of member countries must contain some type of
provision for fair quotation from copyrighted works (such as the fair use provision
in of section 107 the U.S. Copyright Act) and allows for exemptions for
educational uses of copyrighted works.
c. Formalities
One very important provision of the Berne Convention says that member
countries cannot condition copyright protection on any formal requirements
(formalities) such as copyright registration and copyright notice.21
For a long time
this was a major stumbling block for the United States which had historically
required both registration and notice in order to own a copyright. The United
States resisted joining the Berne Convention until 1989 even though it had
become the primary international treaty dealing with copyright well before then.
1.10.3 Other Copyright Treaties
The Universal Copyright Convention
The Universal Copyright Convention ("UCC") is another international copyright
treaty which many countries including the United States belong to.22
The UCC is
similar to the Berne Convention except that it allows member countries to require
21
Op cit p.16
22
Supra

24
some formalities as conditions to copyright protection. However, the UCC's
importance has diminished since most member countries are also members of
the Berne Convention which provides for greater protection.
1.10.3.2 The WIPO Treaties of 1998
The World Intellectual Property Organization ("WIPO") is an agency of the United
Nations which works toward increasing international legal protection for
copyright and other intellectual property. In 1998, WIPO drafted two treaties
designed to ensure some degree of protection to copyrighted works in the digital
environment.23
The most important provision of the WIPO Copyright Treaty clarifies that the right
of reproduction applies in the digital environment by providing that the storage of
a work in a digital or electronic medium is a reproduction. The WIPO
Performances and Phonograms Treaty provides protection for sound recordings
distributed digitally over computer networks. It requires that member countries
provide at least fifty years of protection for recordings (unlike the United States,
many foreign countries give a lesser term of copyright protection to sound
recordings than other types of works).
23
Op cit p.16

25
There are several other international treaties that also deal with copyright law,
but the main goal all of them seek to achieve is a degree of harmony and
reciprocity among member countries so that copyrights will be protectable on a
worldwide basis.
1.11 THE RECEPTION OF COPYRIGHT LAWS IN NIGERIA
Nigeria derives her law on copyright from the English law we must therefore look
into the English law for historical evolution.24
Copyright law was governed until
1970 by the English Copyright Act of 1911 which made applicable to Nigeria by
virtue of an order in council in 191225
which was made under section 25 of the
1911 Act. It is significant that although a new copyright law was passed in England
in 1956, Nigeria still continue to apply the 1911 Act until 1970 when the copyright
Act was promulgated as decree number 61 of 1970.
In 1988, the then A.G of the federation subsequently setup a national committee
on copyright. The committee comprised of representative from ministry of trade,
culture, education, justice and other interested and concerned bodies such as
PMAN, NBA, IFPI etc. 26
The committee organized a series of seminar and
workshop to which there were local and international contributions, including the
24
F.O Babafemi intellectual property: The Law and Practice of Copyright, Trademarks, Patents and Industrial
Designs in Nigeria 1
st
Edition Justinian Books p.1
25
No 912 of 1912 dated in January 1912
26
P.A Ocheme The law of Copyright Practice in Nigeria Printed by Ahmadu Bello University Press ltd.

26
world intellectual property organization. The communiqué drawn from this
national workshops/seminar gave rise to and informed the content of the
subsequent copyright decree27
promulgated in 1988. The decree (Now redesigned
as an Act)28
not only repealed in the 1970 decree, but also strengthened the
hitherto inadequate position of the law on copyright practices in Nigeria. The
principal Act was amended in 1922,29
the amendment was to provide supportive
environment for the administration of copyright in Nigeria. The current Act is
contained in Cap C28 Law of Federation of Nigeria 2004.
By virtue of the origin of Nigeria and the evolution of its legal system when in
1911 an English Copyright Act was passed. It was applied to Nigeria by order-in-
council in 191230
. Although a new copyright Act was passed in 1956 in England.
Yet, Nigeria continued to apply the 1911 Act until 1970 when the Nigeria
Copyright Act was promulgated as a decree in December 1970 and took effect
from December 24, 1970. In 1988 copyright decree passed and it is presently
compiled in CAP 68 Laws of Federation of Nigeria 1990. But the current Act on
copyright is now contained in Cap C28 Laws of Federation of Nigeria 2004.
27
Decree no 47 of 1988
28
Cap 68 Laws of Federation of Nigeria 1990 following the revision of all existing federal Legislation prior to 1979
29
See Copyright(Amendment) No 98 of 1992
30
No.912 of 1912 dated January 1912

27
It is oge t to e tio that apa t f o Nige ia s a essio to the Be e a d ‘o e
Conventions, the country is under a higher responsibility not only to ensure that
its laws are adequate but that they are operated within an internationally
acceptable administrative environment. It is an undisputable fact that the rights
conferred under the law can be meaningful only if the right owners are
adequately compensated for their exploitation. But with the expansion and
sophistication in the manner these works are exploited, it is becoming
increasingly difficult for an individual right owner to anticipate the points of
exploitation and negotiate adequate license fees without the assistance of
collective administration. Through this means it is easier to fight against
unauthorized users and to negotiate terms with the legitimate ones.

28
CHAPTER TWO
2.1 NATURE OF WORKS THAT ARE COPYRIGHTABLE UNDER THE NIGERIAN
COPYRIGHT ACT
Copyright protects works such as poetry, movies, CD-ROMs, video games, videos,
plays, DVDs, paintings, sheet, music, recorded music performances, novels,
software code, sculptures, photographs, choreography, and architectural
designs.31
To qualify for copyright protection, a work must be fixed in a tangible medium of
e p essio . This ea s that the o k ust e ist i so e ph si al fo fo at
least some period of time, no matter how brief. Virtually any form of expression
ill ualif as a ta gi le ediu , i ludi g a o pute s a do a ess e o
(RAM), the recording media that capture all radio and television broadcast, and
the scribbled notes on the back of an envelope that contain the basis for an
impromptu speech.
In addition, the work must be original, that is, independently created by the
autho . It does t atte if a autho s eatio is si ila to e isti g o ks o
31
http://www.nolo.com/legal-encyclopedia/copyright-basics-faq-29079-2.html

29
even if is arguably lacking in quality, ingenuity, or aesthetic merit. So long as the
author toils without copying from someone else, the results are protected by
copyright.
To receive copyright protection, a work must be the result of at least some
creative effort on the part of its author. There is no hard and fast rule as to how
much creativity is enough. As one example, a work must be more creative than a
telepho e ook s hite pages, hi h i volve straight forward alphabetical listings
of telephone numbers rather than a creative selection of listings.
In the Nigerian context, the applicable law which is the Copyright Act Cap C28
Laws of Federation 2004 does not define what copyright is. It only sets out what
copyright works are32
and they are;
a. Literary works
b. Musical works
c. Artistic works
d. Cinematograph films
e. Sound recording
f. Broadcasts
32
Section 1(1) (a)-(f) Copyright Act C28 Laws of Federation of Nigeria (2004)

30
S.51(1) defines literary works to include irrespective of literary quality, any of the
following works; novels , stories and poetical works; plays stage direction, film
sceneries and broadcasting script; choreographic works; computer programs;
textbooks treaties, histories, biographies, essays and articles encyclopedia,
dictionaries, directories and anthologies, letters, reports, excluding decisions of
court, written table or complication.
The same section define works as any musical works irrespective of musical
quality and include works compose for musical accompaniment33
. Artistic is
interpreted to mean irrespective of artistic quality, any of the following work or
works similar thereto
a. Painting, drawing, etching, lithographs, wood cuts, engraving and prints;
b. Maps, plans and diagrams;
c. Works of sculpture
d. Photographs not comprised in a cinematograph films;
e. Works of architecture in the form of building models and
f. Works of artistic craftsmanship, subject to section 1 (3) of the Act, pictorial
woven tissues and articles of applied handicraft and industrial art.
33
S.51 Copyright Act C28 Laws of Federation of Nigeria (2004)

31
Thus section 51(1) does not place emphasis on the quality sought to be protected,
a useless piece of literary, musical and artistic work will still be protected in as
long as their original and fixed in a medium of expression.
Furthermore, Copyrightable works can only be protected if they fulfill and satisfy
condition's listed under section 1 (2) of the Act, which provides as follows:
"A literary, musical or artistic work shall not be eligible for copyright unless
a. Sufficient efforts have been expended-on making the work to give it an original
character;
b. The work has been fixed in definite medium of expression now known later to
be developed, from which it can be perceived, be produced or otherwise
communicated either directly or with the aid of any machine or device".
On the issue, of originality, the Act does not define what an original work is, but
the word "original" was define in the case of University of London Press Limited V.
University Tutorial press34
by Peterson J. as follows:
"The word originality does not in this-connection mean that the work must be the
expression of the original or inventive thought and in the case of literary work
with the expression of thought in print or writing. The originality, which is
required, relates to the expression of thought.
34
( 1916) 2 CH. p.601

32
But this does not require that the expression must be in original or novel form,
but that the work must not be copied from another, that it must originate from
the autho .
The second condition that must be fulfilled on section 1 (2) (b) is that the work
must be fixed in any definite medium of expression 'now known or later to be
developed from which it can be perceived, reproduced or otherwise
communicated either directly or with the aid of machine or device.
Although interpretation section35
does not define what "definite medium of
expression" is, but literally it connote platform for communicating, expression or
making an idea known.
Either the medium of expression could be the one known now or be developed
later for example; writings, printing and computer since the Act require that the
work must be fixed in any medium of expression. It necessarily follows that the
work must be tangible for example an idea that is still in the head will not qualify
for copyright protection and this section raises the issue of publication as pre-
condition for the protection of copyright work.
Furthermore, an artistic work will be eligible for copyright if at the time when the
work is being made it is intended by the author to be used as a model or pattern
to be multiplied by any industrial process36
.
35
Section 51(1) CAP C28 Copyright Act Laws of Federation of Nigeria (2004)

33
Thus, there will be no protection where author intended to use an artistic work as
a model or pattern to be multiplied by industrial process.
2.2 LITERARY WORKS
By virtue of section 1(1) (a) literary work is eligible for copyright protection
interpretation section5
define literary works includes
"Irrespective of literary quality any of the following work or works similar
thereto37
a) Novels; stories and poetic works;
b) plays, stage directions, films scenarios and broadcasting script;
c) Choreographic works.
d) Computer programs;
e) text-books, treaties, histories, biographies, essays and articles;
f) Encyclopedias, dictionaries, directories and anthologies;
g) Letters, reports and memoranda;
h) Lectures, addresses and sermons;
i) Law reports, excluding decisions of courts; .
j) Written tables or compilations
36
Section 1 (3)CAP C28 Copyright Act Laws of Federation of Nigeria (2004)
37
Section 51(1) CAP C28 Copyright Act Law of Federation of Nigeria (2004).

34
The meaning of literary works made clearer in University of London Limited V.
University Tutorial Press38
Peterson J.
"In my view literary work covers works which is expressed in print or
printing irrespective of question whether the quality or style is high.
The word "Literary" seem to be used in the sense someone similar to
the use of the word literature in political and electioneering
literature and referred to written or printed matter."
Thus, the work be expressed in some form of notation, a speech or lecture, even
if recorded on Dictaphone; sound film, or other recording device will not be
entitled to copyright protection.39
Copyright may be acquired in a report of
speech but for the speech itself, to enjoy copyright protection, the material must
be reduced to writing or other notations. So long as something in writing exists, it
is sufficient and it is not necessary that what is written should express a meaning
in language. Thus there may copyright in the list of meaningless words used as a
telegraph code40
or in a catalogue41
.
38
Supra
39
F.E Copinger and Skone James, the Law Of Copyright, 9th Edition, London, Sweet and Maxwell, (1958) p.57
40
Anderson V. Lieber code co. (1917) 2 K.B. 469
41
MassonSeeley Ltd. V. EmbossoTyre manufacturing company (1924).P.41

35
Again, if there is sufficient amount of skill and labor in consisting or selecting the
materials in particular skill-in the literary form is needed, thus copyright has been
conferred in respect of newspaper telegram and in the rule of a game42
.
The court has held that based, on the ground of triviality, that there is no
copyright in the advertisement slogan43
such as
"Youthful appearances are social necessities not luxuries"
However, trademarks catalogue can be the -subject matter of copyright.
Copyright in catalogue has been considered in the case of Purefoy Engineering Co
V. Syjfess Boxall And Company Ltd44
. In that case, the appeal had no difficulty in
deciding that copyright subsided in the whole of the catalogue and in part of it,
.and that the real issue between the parties was as to the extent of the
infringement.
Also, a lecture is copyrightable being a literary work, in Nicols V. Pitman45
. The
fact of the case are as followed, the defendant Pitman was the creator of a well
known system of shorthand which at that time was known as Phonography. He
published a monthly periodical expressly to assist those who wish to learn his
phonography system which included lectures delivered by public lecturer and was
known as "Phonography lectures" the defendant attended a lecture given by
42
Casey and Son V. Garret and Son Ltd. (1937) Mac.
43
SinanideV. LA Maison Kosmeo (1928) 139 L.7
44
(1955) 72R.P.C. 89
45
(!884)26Ch. D.p.374 .

36
plaintiff filed " the dogs are friend of man" the defendant openly took note of the
lecture in shorthand which is subsequently published by him.
The court held that a person attending a lecture may take notes and used them
for purpose of refreshing his memory for purpose of-examination but he is not at
liberty to publish it.
Furthermore, the Act protects law reports, excluding the decision46
of the courts
as literary work. The decision of the court in actual language of the judge could be
used and is not copyrightable; the other part of law report such as a abridgement,
comment and annotations will be protected by the Act. In Sweet V. Benning47
The
plaintiff was the owner of a weekly magazine called "The jurist" it context
consisted mainly of law reports compiled by barristers employed for that purpose
for which they were paid on pro data basis nothing was said or written between
the plaintiff and reporters as to ownership of copyright.
Each reporter had note summarizing the decisions, the defendant was the
publisher of the monthly magazine called "the monthly digest" and included in its
contents some of the head notes of report which had appeared in the jurist
magazine.
The court held that the plaintiff have copyrights in the report supplied by the
barristers for publication in the jurist and that by publishing certain part of the
46
Section 51(1) CAP C28 Copyright Act Laws of Federation of Nigeria (2004)
47
(1855) 16 Ch. Datp.459

37
head note which appeared in "the jurist", the defendant was in breach of
copyright for the unauthorized reproduction.
As regard to the head note Justice Crowther said;
" something upon which much skill and exercise of thought is required, to express
in clear concise language the principle of law to be deduced from the decision to
which it is prefixed or the fact and circumstances which bring the case in hand
within some principle or rule of law or of practice"
Article 2 of Convention for the Protection of Literary and Artistic Works (Brussels
Act, 1948)48
also permit members state to exclude speeches and judgement in
legal proceedings from copyright protection.
2.3 Musical Works
Musical works are considered for protection because the authors are expected to
reap at least some portion of their reward from the public performance of their
works. Thus, authors have two rights that is the right to prevent the multiplication
of original copy i.e. what can be called the acting right or performing right that is
48
www.en.m.wikisource.org/wiki/convention_for_the_protection_of_literary_and_artistic_works_(Brussels_Act,_19
48)

38
the right to prevent other persons from publicly representing or performing their
work without the author's consent.
These two musical rights are quite distinct, each being a separate right or
property and capable of being assigned without the other. The other right of
particular importance to the owner of copyright in respect of musical works is the
right to broadcast and the right to reproduce in the form of records. Musical
works when written or printed are protected like other literary works.
S.51 (1) (B) of the Act49
defines musical works as;
"Means any musical work, irrespective of
musical quality and include works composed
for musical accompaniment".
Under the Nigeria law, the nature of copyright in musical works is an exclusive
right vested in the author to control the doing in Nigeria any of the following;50
i. reproduce the work in any material form
ii. publish the work
iii. perform the work in public
iv. Produce, reproduce, perform or publish any translation of the work.
v. Make any cinematograph film or a record in respect of the work;
49
Copyright Act C28 Law of Federation Of Nigeria 2004
50
Section 6(A) (i)-(viii) CAP C28 Copyright Act Laws of Federation of Nigeria (2004)

39
vi. Distribute to public, for commercial purpose, copies of the work, by way of
rental, lease, hire, loan or similar arrangement
vii.Broadcast or communicate the work to the public by a loudspeaker or any
other similar devices
viii. Make any adaptation of the work.
By virtue of above provision a musician would have an exclusive control of his
musical work and it public performance in Nigeria. The author's right are subject
to the exception specified in the second schedule of the Act51
.
In the case of Performing Society Limited V. Hawthorns Hotel LTD52
. The fact of
the case are as follow; the performing society limited control the exclusive right
to perform in public two musical works " birds song at the eventide" and "
monesting garden". The defendants company caused the two musical work to be
performed in the course of a programme of entertainment by a band in it hotel
without collecting fees, the establishment was a high class licensed residential
hotel, the audience comprised of number of residential guests. The court held
that the performance, in public by virtue of S.I (2) of the English copyright Act of
1911. Although, it was contented on behalf of the defendant that the place of
performance was not a public place, this contention was rejected.
51
Copyright Act C28 Law of Federation of Nigeria (2004)
52
(1933) 1 Ch. P:855.

40
It was submitted that in the above case, the provision of second schedule of the
Nigerian Act is at variance with S.I (2) of the English Act 1911. Under the second
schedule of the Nigerian Act a public performance of musical or literary, not with
the aim of making profit or a general fair dealing' for the purpose of research,
private use, will constitute exception to breach of copyright.
2.4 Artistic Works
The Act generalized the protection of artistic works to cover any work produced
through artistic process in a broad sense.
S. 51(1) provides that artistic work includes irrespective of artistic quality, any of
the following work -or works similar thereto; paintings, drawing etchings,
lithographs, woodcuts, engravings and prints, maps, plans and diagrams, works of
sculpture, photographs not comprised in a cinematograph film and works of
architecture in the form of building models.53
S.51 (1) as related to artistic work is subject to limitation under S.I (3) of the Act
which provides as follow;
"An artistic work shall not be eligible for copyright, if at the time when the work is
made, it is intended by the author to be used as a model or pattern to be
multiplied by any industrial process"
53
S.51(1) Copyright Act C28 Laws of Federation of Nigeria (2004)

41
The o d i espe ti e of a tisti ualit " i “. l is used as a ge e i te to
include the different process of creating works, and that a work was produced
one of such processes and that its creation involved some skill or labour on the
part of the artist.
Finally, by virtue of S.51 (1) artistic works include photographs not comprise in
cinematograph film, it follow therefore that in as long as photograph is not
included in the cinematograph film, it is protected by copyright.
2.5 MAPS, PLAN AND DIAGRAMS
S.51 (1) (B) of the Act recognises the protection of maps, plans and diagram as an
artistic works. Map, plan and diagram may be protected either as a book or as an
engraving. There must be substantial reproduction of the original work before
there can be an infringement copyright in work of plans, maps and diagrams.
In Geographic Limited V. Penguin54
where the court held that a copyright case
dealing with maps, even if on close examination there are some similarities in
final features, the question is always going to remain as to whether, having regard
to the quantity of the information taken, there has been no real prejudice to the
copyright owner. All that the plaintiff could prove to1
' have 'been taken were
some relatively insignificant features of colouring and the plaintiff case was
accordingly dismissed.
54
(1985) 1 F.S.R AT p. 208

42
2.6 WORKS OF ARCHITECTURE
S.51 (1) (E) includes works of architecture as part of artistic works. The Act also
protect the work of architecture55
as follows
"Copyright in a work of architecture shall also include the exclusive right to
control the erection of any building which reproduces the whole or a substantial
part of the work either in its original form or any form recognizably derived from"
the original, but not the right to control the reconstruction in the same style as
the original of a building to which the copyright relates."
The act preserves right of the architecture to copyright in his. Plans and protect
works of architecture which includes buildings or models for building.
Architectural works were included among "artistic work" and such work includes
any building or structure(s). The design to be protected must be of a building or
structure or a model for the same. .
2.7 SOUND RECORDINGS
S.I (E) of the Act protects sound recording.56
S.51 (1) interprets sound recording to
mean first fixation of a sequence of sound capable of being perceived orally and
55
S.6(3) Copyright Act C28, Laws of Federation of Nigeria 2004
56
S.1(e) Copyright Act C28 Laws Of Federation Of Nigeria (2004)

43
of being reproduced but does not include a sound track associated with
cinematograph film(s). , .57
Reproduction in case of musical work includes the reproduction in the form of a
record(s) and record means any disc, tape, perforated roll or other device in
which sounds are embodied so as to be capable (with or without) the aid of some
other instruments of being automatically reproduced there from
2.8 DURATION OF COPYRIGHT
Almost all the works protected by copyright are protected for a period of fifty
years from the end of the year in which either the author dies or the work is first
published.
Schedule 1 58
provides the types of work and date of expiration of copyright as
follows;
Literary, musical or artistic work other than photographs are protected for
seventy years after the end of the year in which the author dies and in the case of
government or body corporate, seventy years after the end of the year in which
the work was first published.
57
S.51 (1) Copyright Act Laws Of Federation Of Nigeria (2004)
58
Copyright Act C28 Law of Federation of Nigeria 2004

44
Cinematograph films and photograph, fifty years after the end of the year in
which the work was first published. Sound recording, fifty years after the end of
the year in which the recording was first made, and broadcast fifty years after the
end of the year in which the broadcast first took place.
However, an eminent jurist suggested that there is a need to re-examine these
various periods he states that;
"Once we accords to any works entitled to copyright its proper place as property-
an intellectual property. Therefore there seems to be no reason why a period for
the enjoyment of such property should be limited' by law59
.
59
T. Akinola Aguda: Keynote address delivered at the National Conference on the administration of copyright held
at the Administrative Staff College of Nigeria, Topo, Badagry on December, 12-15, 1985

45
CHAPTER 3
OWNERSHIP OF COPYRIGHT
Ownership of property may be private, collective, or common and the property
may be objects, land/real estate, or intellectual property. Determining ownership
in law involves determining who has certain rights and duties over the property.
These ights a d duties, so eti es alled a u dle of ights , a e sepa ated
and held by different parties.
The process and mechanics of ownership are fairly complex: one can gain,
transfer and lose ownership of property in a number of ways. To acquire property
one can purchase it with money, trade it for other property, win it in a bet,
receive it as a gift, inherit it, find it, receive it as damages, earn it by doing work or
performing services, make it, or homestead it. One can transfer or lose ownership
of property by selling it for money, exchanging it for other property, giving it as a
gift, ispla i g it, o ha i g it st ipped f o o e s o e ship th ough legal ea s
such as eviction, foreclosure, seizure, or taking. Ownership is self-propagating in
that the owner of any property will also own the economic benefits of that
property.60
60
www.en.m.wikipedia.org/wiki/ownership

46
With regards to copyright law, someone who owns a copyright has certain legal
rights, in many ways just as someone who owns other types of property has
ownership rights. Ownership essentially allows the owner of property to control
the use of their property, whether intangible property like the copyright in a song
or tangible property like a house or car.
Ownership of property can be transferred (sold or given away) to someone else.
Additionally, you can allow someone to use your property and can specify how
the property can be used or place restrictions on its use. Allowing someone to use
a copyrighted work involves issuing a license to use the work.61
In many situations, in order to earn income, authors transfer copyrights in the
works they create to publishers that are better able to make works commercially
available to the public. However, unlike when someone sells physical property
such as a car, when authors sell copyrights, they usually retain a right to receive
royalties for the use of the works they create.62
Ownership of a copyright arises automatically the moment a work is created as
long as it satisfies the requirements of originality and fixation. A very common
misconception is that you have to apply for a copyright. Although there is a
61
www.copyrightguru.com/belmont_classes/intellectualproperties/lecturenotes/topic3/ownership.html
62
Ibid

47
registration system for copyrights in most countries, registration can provide
some important benefits, you do not have to register a copyright to own one.63
Ownership generally means;
a. The existence of an innumerable numbers of claims, or rights, liberties,
powers and immunities with regards to the things owned;
b. The p e ogati e of the o e to alie ate, a ihilate, consume, use or
enjoy any or all of the lights.
c. The prerogative of the political system to prescribe the conditions for the
enjoyment or non enjoyment of the innumerable rights listed above in the
overall interest of other members of the group. Thus, ownership is the
supreme rights that exist in a property, that the owner of a property is he
who has the right of possession whether mediate or immediate.
And he, whose right of possession is not tied up with or restricted by the superior
right of another person, the owner may divest himself of one of the rights but still
retains an interest which outclasses all other interest.64
Under the Nigerian Law, Copyright ownership is not automatic. For example, if
you are a citizen of Nigeria or domiciled in Nigeria, you cannot lay claim to
63
ibid
64
Prof E.E Uvieghara, Essay on Copyright Law and Administration in Nigeria 1
st
Ed., Ibadan; Y, Books Ltd,1992 p.22

48
copyright ownership, unless the work was first published in Nigeria or being
sound recording made in Nigeria.
Again, if by contract of employment, you have transferred the copyright in your
o k to ou e plo e , ou a ot also lay claim to copyright ownership.65
It is important to know that ownership of copyright is usually vested in the author
of a work. The Act, in recognition of expenditure of labour, skill and capital by
certain categories of people for the creation of parti ula o je ts ested e lusi e
ight to o t ol the doi g of a u e of A ts ith ega ds to the o je ts of the
people oadl te ed autho . I te p etatio se tio 66
of the Act listed various
persons who are qualified to be called authors. S.2. (1) provides conditions which
author, or in the case of work of joint authorship, any of the authors must fulfill
before they can claim ownership of copyright, the section provides thus:
Cop ight shall e o fe ed this se tio o e e o k
eligible for copyright of which the author or in the case of
a work of joint authorship, any of the author is at the time
when the work is made, a qualified person, that is to say-
65
Intellectual property, The law and practice of Copyright, Trademarks, Patents and Industrial Designs in Nigeria.
F.O Babafemi, Justinian Books 1
st
Ed,Nigeria p.24
66
S.51 (1) Copyright Act CAP C28 Laws of Federation of Nigeria, 2004.

49
a. An individual who is a citizen of, or is domiciled in
Nigeria; or
b. A body corporate (or) incorporated by or under the
la s of Nige ia.
So therefore, before any author can claim copyright ownership, such a literary,
musical or artistic work or a cinematograph films must first be published in
Nigeria or if it is a sound recording is made in Nigeria. The Longman Dictionary of
Co te po a E glish defi es pu lish as follo s; to hoose, a a ge, ha e
printed, and offer for sale to the public some kind of written work in the form of
ook, agazi e, a d e spape et .
Thus, a work shall be deemed to have been published if copies of it have been
made available in a manner sufficient to render the work accessible to the public.
Furthermore, S.2 (1) implied that copyright ownership is vested in the author
where the author is a citizen of Nigeria or where he is not a citizen he is domiciled
in Nigeria or the body is incorporated under the Nigerian law.

50
Copyright ownership is also vested in the author of literary, musical, or artistic
work or cinematograph film which is first published in Nigeria where the author is
neither domiciled in Nigeria or citizen of Nigeria.67
Ho e e , he e a o k is o issio ed a pe so ho is ot the autho s
employer under a contract of service or apprenticeship or not having been so
commissioned, is made in the course of the autho s e plo e t, the op ight
shall belong in the first instance to the author, unless otherwise stipulated in
writing under the contract68
.
Thus, whether a person is employed under a contract of service or not is a
question of fact and not of law. In Simmons V. Health Laundry Company,69
Per
Fletcher Moulson;
the g eate the a ou t of di e t o t ol e e ised o e the
person rendering the services by the person contracting for
them, the stronger the ground for holding to be
independence of such control, the greater the probability that
the services rendered are of the nature of professional
se i e, a d that the o t a t is o e of se i e.
67
S.10(2) Copyright Act Cap C28 Laws of Federation of Nigeria (2004.)
68
Ibid
69
1910 1 KB 543 p.549 & 550

51
If an employee creates a copyrighted work as part of his or her job, the employer
(rather than the employee/creator) will own the copyright. In this situation, it is
not necessary to have a written contract that says copyrighted works created by
the employee will be created as works made for hire. Instead, work for hire status
is presumed in an employment relationship.70
Example: A computer programmer
who is employed by Microsoft contributes to the creation of a new software
program; the copyright to the software belongs to Microsoft rather than the
programmer since the programmer is an employee of Microsoft and created the
program as part of her employment.
The above is also applicable where a literary, artistic or musical work is made by
the author in the course of his employment by the proprietor of a newspaper,
magazine or similar periodical under a contract of service or apprenticeship as is
so made for the purpose of publication in newspaper, magazine or similar
periodical; the said proprietor shall, in the absence of any agreement to the
contrary be the first owner of copyright in the work in so far as the copyright
relates to the publication of the work in all other respects, the author shall be the
first owner of the copyright in the work.71
70
71
S.10(3) Copyright Act Cap C28 Laws of Federation of Nigeria 2004

52
It follows therefore that if the article was to be published otherwise than a
newspaper. Magazine or similar periodical for instance as a collection of essays
which were edited as book then, the copyright in the article will be vested in the
author.
Sometimes people are hired to work for someone else, but not as employees.
Instead, their relationship is that of a hiring party and an independent contractor.
The distinction between employees and independent contractors has important
legal consequences beyond the scope of this course. A simple way of
understanding the difference is that employees work for their employers while
independent contractors work for themselves (although they are hired to perform
work for others).72
A famous Supreme Court case, Community for Creative Non-Violence v. Reid,
involved a dispute over copyright ownership of a sculpture. The sculptor claimed
he was an independent contractor rather than employee and therefore owned
the copyright to the sculpture.
Ruling: The Supreme Court held that the sculptor was an independent contractor,
based on an evaluation of various factors which are indicative of which party has
primary control over the work performed. Factors looked at include:
72
Op.cit p.2

53
1 Skill required to do the work Source of tools & materials used to create the
work;
2 Location of work performed;
3 Duration of relationship;
4 Right to assign additional projects;
5 Hi ed pa t s dis etio o e he & ho lo g to o k;
6 Method of payment;
7 Which party decides whether assistants will be used &which party pays
them;
8 Part of regular business of hiring party;
9 Whether party creating work is in business for itself;
10 Whether hired party receives employee benefits;
11 Tax treatment of hired party;
Generally, it is safe to assume that an employment relationship exists when a
hired party is paid a salary, receives benefits from the hiring party (medical
insurance, etc.), and the hiring party withholds taxes and makes social security

54
payments. If it is unclear whether an employment relationship exists, you can
always enter into a written contract giving the hiring party copyright ownership or
licensing rights to use the copyrighted work.73
When a copyrighted work is created by an independent contractor, it may be a
work made for hire, but only if two conditions is met. First, the parties must have
a written contract stating that the work is created as a work made for hire.
Additionally, the work must fit one of the following categories:
1 Contribution to collective work (e.g., an article in a magazine)
2 Part of motion picture or other audiovisual work (e.g., a screenplay)
3 Translation
4 Supplementary work - work prepared for publication as a secondary part of
a work by another author such as a foreword, pictorial illustration, musical
arrangement, bibliography, appendix, etc.
5 Compilation
6 Instructional text (e.g. a manual for stereo equipment)
7 Test (e.g., ACT, LSAT)
73
490 U.S. 730 (1989)

55
8 Answer material for a test
9 Atlas
Example: A movie producer hires a music composer to write soundtrack music for
a motion picture.
Result: If the producer has the composer sign a contract, the music could be
composed as a work for hire and the producer rather than the composer would
own the copyright since the music is created to be part of a motion picture.74
Government, state or international body may claim ownership by virtue of S.4 (1)
of the Act which provides thus:
Cop ight shall e o fe ed this se tio o e e o k
which is eligible for copyright and is made by or under the
direction or control of the government, a state authority or
a p es i ed i te atio al od 75
S.10 (5) further provides that copyright to such works as conferred by S.4(1) shall
vest initially in the government on behalf Federal Republic Of Nigeria, in the state
74 74
75
S.4(1) Copyright Act Cap C28 Laws Of Federation Of Nigeria 2004

56
authority on behalf of the state question or in the international body in question
as the case may be and not in the author.76
In Heine V. Appleton77
the court held as follows:
The sket hes a d d a i gs e e ade fo the go e e t to
be at their disposal, and congress, by ordering the report
which contained those sketches and drawings to be published
for the benefit of the public at large has thereby given at
la ge.
The court made a similar finding in the case of Sawyer v. Crowell Publishing Co,78
the court while denying the plaintiff copyright in the map held as follows:
It is t ue that the fa t, that o e has eated o i e ted so ethi g hile
in employment of government does not transfer the copyright in that
thing to the government. But it is equally true that when an employee
creates something in connection with his duty under employment, the
thing created is the property of the employer, any copyright obtained
the eo the e plo ee is dee ed held i t ust fo the e plo e
76
77
11 F.Cas. 1031, 1033 (S.D.N.Y 1857)
78
46 F Supplement p.471 (S.D.N.Y. 1942)

57
It follows therefore, if a government employee authors work which can be
considered as ancillary or incidental to his normal duty, then the work belong to
the government or his employer. On the other hand, a work authored by the
government employee on his initiative though at the expense of the government
by making use of government materials and facilities but not for the use of the
government, copyright in such work will belong to the author.79
CO-OWNERSHIP OR JOINT OWNERSHIP
It is fairly common for more than one person to contribute to the creation of a
work. For example, suppose that a band consisting of 5 members composes a
song with each band member contributing at least to some extent. Who owns the
song and, if more than one person, how much of the song does each of person
own? What if one of the band members contributed much more than the rest?
These questions are answered by provisions in the Copyright Act covering joint
works.
Under the Copyright Act, It is possible for two or more persons to be co-owner of
a whole or any of a copyright by virtue of S.11 (6) of the Act,80
which provides as
follows:
79
S.4(1) Copyright Act Cap C28 Laws Of Federation of Nigeria 2004
80

58
Fo the pu pose of this se tio , pe so shall e dee ed to e o-
owners-
a. If they share a joint interest in the whole or any part of a copyright; or
b. If they have interest in the various copyright in a composite production,
that is to sa , a p odu tio of t o o o e o ks.
The act makes it mandatory for the co-owners to put their rights and duties in
writing, for instance, S.10 (4)81
p o ides that i the ase of a i e atog aph fil
or sound recording, the author shall be obliged to conclude, prior to the making
of the work, contract in writing with all those works are to be used in the making
of the work, contract in writing with all those whose works are to be used in the
aki g of the o k .
The key to joint works is that each contributor must have the intent to combine
his or her contribution with someone else's contribution to form a single work.
Example: Elton and Bernie create a song, with Elton composing the music and
Bernie writing the lyrics.
Assuming that Elton and Bernie both intended that their contributions (Elton's
music & Bernie's lyrics) would be combined to create a song, the song is a joint
work and Elton and Bernie jointly own the copyright.
81

59
Most commonly, joint works are the result of more than one person working
together (collaborating) to create a work. However, this is not always the case.
Although the law requires that there must be intent to combine contributions,
that does not mean that co-authors have to actually work together at the same
time and place as long as each intends its contribution to be combined with
so eo e else s o t i utio to fo a si gle o k.82
In the case of Marks v. Vogel83
A songwriter sold lyrics to a publisher who had
someone else write music to accompany the lyrics.
Ruling: The court held that the resulting song was a joint work even though the
co-writers didn't even know each other stating: "It makes no difference whether
the authors work in concert, or even whether they know each other; it is enough
that they mean their contributions to be complementary in the sense that they
are to be embodied in a single work to be performed as such."
In addition to the intention to combine contributions, some courts have also held
that each contributor must make an independently copyrightable contribution in
order to have a joint work. This requirement is intended to assure that someone
who makes minor, unimportant contributions to a work is not treated as a co-
author.
82
83
140 F.2d 266 New York US (1944)

60
Example: A recording artist changes the title of a song she did not make any other
contribution to the song; the artist is not a joint author of the song since her only
contribution was the title and titles are not copyrightable.84
Joint authors are co-owners of copyright in equal, undivided interests; this means
that each co-author owns an equal share of the entire work regardless of how
much each actually contributed to the creation of the work.
Example: Five band members each contribute to the creation of a song; unless
they have a written agreement specifying otherwise, each band member owns
one-fifth of the song.85
What if one person composes the music to a song and another person writes the
lyrics? Again, unless the authors have a written agreement specifying otherwise,
they will each own 50% (an equal, undivided share) of the song.
This rule is based on the assumption that co-authors will not usually discuss how
ownership should be shared and the most logical assumption is that co-authors
contribute relatively equal po tio s. It s the efo e e i po ta t that if that's
not true, co-authors have a written agreement stating how they will share
ownership.
84 84
85
ibid

61
In the case of Papa's-June Music v. McLean86
In 1989, Ramsey McLean sent some
poems to Harry Connick, Jr., who added music and recorded the songs on an
album. Connick and McLean entered into a co- publishing contract which
provided that Connick would own 70% of the songs and McLean would own 30%.
Several years later, McLean sent Connick new poems which Connick added music
to and recorded. They signed an amendment to their co-publishing contract
which provided for the same ownership split (70/30) as before. Connick and
McLean followed the same procedure a third time except that they didn't have
anything in writing about the songs that resulted from their contributions.
McLean notified Connick that he wanted 50% for these songs and Connick sued
claiming that their prior agreement applied.
Ruling: Poor Harry (or his lawyer) screwed up here by not having anything in
writing covering ownership of the third group of songs. The court ruled that
McLean was a joint owner of the copyrights and since there was no written
agreement specifying a different arrangement, the Copyright Act's rule applied
and McLean was entitled to an equal, undivided share of 50% in these songs.
EFFECT OF ASSIGNMENT AND LICENCE OF COPYRIGHT
86
921 F.Supp. 1154 (S.D.N.Y 1996)

62
Copyright is distinct from the material object which is the subject matter of
copyright. The assignment of the material object does not necessarily transfer the
title of the copyright. The main provisions of the Act which deal with transfer of
copyright are contained in S.11.
The Act provides that copyright can be transmitted by assignment, by
testamentary disposition or by operation of law, as moveable property. An
assignment or testamentary disposition may be limited so as to apply to only
some of the acts which the owner of the copyright has the exclusive right to
control or to a part only of the period of the copyright, or to a specified country or
other geographic area.87
An assignment or writing if it is exclusive must be in writing to have effect.88
The
act does not state that assignment of copyright must be in any special form
beyond that it shall be in writing.
On the other hand, a purported assignment made orally would no doubt avail or
protect the assignee against an action for infringement by the assignor, and
might, if the consideration was executed be treated as an equitable assignment89
.
87
S.11 (2) Copyright Act Cap C28 Laws of Federation of Nigeria 2004
88
89
F.E Copinger and Skone James, The Law of Copyright, 9
th
Ed., London, Sweet and Maxwell, 1958. p.126

63
“. p o ides that op ight i a futu e op ight i the assig ed o k a
be assigned or licensed so as to vest the copyright in the assignee as from as the
work is created as in case of African Song Limited v. Sunday Adeniyi. 90
However, a non-exclusive licence to do an act the doing of which is controlled by
copyright may be written or oral or may be inferred from conduct.91
An assignment or license granted by one copyright owner has effect as if granted
by his co-owners.
The legal effect of assignment is as follows:
Firstly, the assignee can sue for infringement in his own name without adding any
other party as the original owner of the copyright.
Secondly, as far as the assignment is concerned, it will make the assignee whether
for value or not acquire a good title as against a later assignee whether or not the
later had notice of the previous transfer.
However, a licence is different, it passes no interest but only makes an action
lawful, which without it, would have been unlawful. It is not clear if an exclusive
licensee can sue his name, some writers92
were of the view that exclusive licensee
90
Unreported suit no LD/1300/74
91
92 92
F.E Copinger and Skone James, The Law of Copyright, 9
th
Ed., London, Sweet and Maxwell, 1958. p.129

64
have the same rights of action and entitled to the same remedies for infringement
as if the licensee has been in assignment and such rights and remedies are to be
concurrent with the rights and remedies of the owner of copyright.
They go further to say that exclusive licensee have same right of action and
entitled to the same remedies for conversion, as if the licence has been in
assignment.
RIGHT TO CLAIM AUTHORSHIP AND LIMITATION ON RIGHT OF OWNERSHIP
This right emanates from ownership of copyright of copyright. The owner of
copyright has the right to claim authorship of his work; for example, he could
insist that his authorship should be used. This right also extend to right to object
or seek relief in connection with any distortion, mutilation or other modification
of and any other derogatory action in relation to his work, where such action
could be or is prejudicial to his honour or reputation.93
This right to claim authorship is perpetual, inalienable and imprescriptible.94
The right of owners to claim copyright is subject to certain limitations under the
Act which include the following:
93
S.12(1)) (b) Copyright Act Cap C28 Laws Of Federation Of Nigeria 2004
94
S.12 (2) Copyright Act Cap C28 Laws Of Federation Of Nigeria 2004

65
Firstly, first schedule to S.295
set out expiration date of copyright as follows;
literary, musical, or artistic works seventy years after the end of the year in which
the author dies, in the case of government or a body corporate, seventy years
after the end of the year in which the recording was first published.
Cinematograph films and photographs, fifty years after the end of the year in
which the work was first published.
Sound recording, fifty years after the end of the year in which the recording was
first published. Broadcast, fifty years after the end of the year in which the
broadcast first took place.
Secondly, second schedule to S.6 (1) pro ides li itatio o ight hi h op ight s
owner can enjoy under S.6 (1)96
.
Fourth schedule of the Act which provides for compulsory licence for translation
and reproduction of certain works is a limitation to claim a copyright by the
author of a work.
Furthermore, artistic work is not protected if it is intended by the author to be
used as a model or pattern to be multiplied by any industrial process.97
95
Copyright Act Cap C28 Laws Of Federation Of Nigeria 2004
96
97
S.1(3) Copyright Act Cap C28 Laws of Federation of Nigeria 2004

66
A othe li itatio is “. hi h p o ides that a o k ill ot e i eligi le fo
copyright by reason only that the making of the work or the doing of any act in
elatio to the o k i ol ed a i f i ge e t of op ight i so e othe o k .
Finally, works that are contrary to public policy and morality and security may not
be eligible for copyright protection though there is no such provision in the
Nigeria Act but Nigerian court in Clyn Weston v. Feature Film98
in this case the
plai tiff as the autho a d the o e of the op ight i a o el e titled, th ee
eeks . The defe da t had sold a d autho ized the public performance of a film
which the plaintiff alleged reproduced substantial part of her novel. The plaintiff
sought injunction and damages for the infringement of copyright. It was held that
the novel was of highly immoral tendency, subsequently the plai tiff s a tio
failed as she was not entitled to protection of the work.
98
(1916) 1 CH p.261

67
CHAPTER FOUR
Copyright infringement is the use o f works under copyright, infringing the copyright
holder's exclusive rights, such as the right to reproduce, distribute, display or perform
the copyrighted work, or to make derivative works, without permission from the
copyright holder, which is typically a publisher or other business representing or
assigned by the work's creator.
Colloquial terminology
Copyright infringement is often associated with the terms piracy and theft. Although
piracy literally means brazen high-seas robbery and kidnapping, it has a long history of
use as a synonym for acts which were later codified as types of copyright infringement.
Theft is hyperbole, emphasizing the potential commercial harm of infringement to
copyright holders; however, not all copyright infringement results in commercial loss,
and the U.S. Supreme Court has ruled that infringement does not easily equate with
theft.99
In the case MPAA v. Hotfile, Judge Kathleen Williams granted a motion to deny
the prosecution the usage of pejorative words in the copyright infringement case.100
This list included the words "piracy," "theft," "stealing," and their derivatives- the use of
which, even if the defendants had been found to have directly infringed on the
99
Dowling v. United States (1985), 473 U.S. 207, pp. 217–218.
100
https://www.techdirt.com/articles/20131130/15263725410/surprise-mpaa- told-it-cant-use-terms-piracy-theft-stealing-during- hotfile-
trial.shtml

68
Plai tiffs op ights, the otio the defe se stated, ould se e o pu pose ut to
misguide and inflame the jury.101
The plaintiff argued the common use of the terms
when referring to copyright infringement should invalidate the motion, but the Judge
did not concur.102
(The case was however settled shortly before it reached the jury
phase of the trial.103
"Piracy"
The practice of labelling the infringement of exclusive rights in creative works as
pi a p edates statuto op ight la . P io to the “tatute of A e i , the
Stationers' Company of London in 1557 received a Royal Charter giving the company a
monopoly on publication and tasking it with enforcing the charter. Those who violated
the charter were labelled pirates as early as 1603.104
The term "piracy" has been used to
refer to the unauthorized copying, distribution and selling of works in copyright.105
Article 12 of the 1886 Berne Convention for the Protection of Literary and Artistic
Works uses the term "piracy" in relation to copyright infringement, stating "Pirated
works may be seized on importation into those countries of the Union where the
101
"MPAA Banned From Using Piracy and Theft Terms in Hotfile Trial" . Archived from the originalon 30 November 2013. Retrieved
November 30, 2013.
102
"MPAA Banned From Using Piracy and Theft Terms in Hotfile Trial" . Archived from the original on 3 December 2013. Retrieved
November 30, 2013.
103
MPAA Will Collect $80 Million Settlement in BigLawsuit Against Hotfile
104
T. Dekker. Wonderfull Yeare , 1603, reprinted by University of Oregon
105
a b Panethiere, Darrell (July–September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable
Development" . UNESCO e-Copyright Bulletin. p. 2.

69
original work enjoys legal protection."106
Article 61 of the 1994 Agreement on Trade
Related Aspects of Intellectual Property Rights (TRIPs) requires criminal procedures and
penalties in cases of "wilful trademark counterfeiting or copyright piracy on a
commercial scale."107
Piracy traditionally refers to acts of copyright infringement
intentionally committed for financial gain, though more recently, copyright holders have
described online copyright infringement, particularly in relation to peer-to-peer file
sharing networks, as "piracy."Richard Stallman and the GNU Project have criticized the
use of the word 'piracy' in these situations, saying that publishers use the word to refer
to "copying they don't approve of" and that "they [publishers] imply that it is ethically
equivalent to attacking ships on the high seas, kidnapping and murdering the people on
them."108
Certain forms of Anti-Piracy (such as DRM), are considered by consumers to
control the use of the products content after sale.
"Theft
Cop ight holde s f e ue tl efe to op ight i f i ge e t as theft. I op ight la ,
infringement does not refer to theft of physical objects that take away the owner's
possession, but an instance where a person exercises one of the exclusive rights of the
106
Panethiere, Darrell (July–September 2005). "The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable
Development" . UNESCO e-Copyright Bulletin. p. 14.
107
a b c Correa, Carlos Maria; Li, Xuan (2009). Intellectual property enforcement: international perspectives . Edward Elgar Publishing. p. 208.
ISBN 978-1-84844-663-2.
108
Stallman, Richard. "Confusing Words and Phrases That Are Worth Avoiding" . Free Software, Free Society: The Selected Essays of Richard
M. Stallman. GNU Press. Archived from the original on 31 May 2010. Retrieved June 1, 2010.

70
copyright holder without authorization.109
Courts have distinguished between copyright
infringement and theft. For instance, the United States Supreme Court held in Dowling
v. United States (1985) that bootleg, phone-records did not constitute stolen property.
Instead, "interference with copyright does not easily equate with theft, conversion, or
fraud. The Copyright Act even employs a separate term of art to define one who
misappropriates a copyright: '[...] an infringer of the copyright.'" The court said that in
the case of copyright infringement, the province guaranteed to the copyright holder by
copyright law—certain exclusive rights—is invaded, but no control, physical or
otherwise, is taken over the copyright, nor is the copyright holder wholly deprived of
using the copyrighted work or exercising the exclusive rights held.
Any person who, without the licence or authorization of the owner of the copyright,
does or causes any other person to do act, the doing of which is controlled by copyright
is guilty of an infringement.110
Copyright in a work will be infringed if the work is copied
in a work without the consent of the copyright owner. S.15(1) of the Act provides that
copyright is infringed by any other person to do an Act the doing of which is controlled
by copyright or who imports into Nigeria otherwise than for his private and domestic
use or distributes therein by way of his private or domestic use or distributes therein by
way of trade, hire or otherwise, or by way of trade exhibits in public, any article in
respect of which the copyright is infringed.
109
Clough, Jonathan (2010). Principles of Cybercrime . Cambridge University Press. p. 221. ISBN 978-0-521-72812-6.
110
J.O Asein, the Nigerian Copyright Act, 1
st
Ed., Lagos. Sam Brokman Educational,1994. P.41

71
Furthermore, the state of mind of the infringer is immaterial in the determination of the
issue whether there had been infringement or not. This point was well taken and clearly
decided in the case of Plateau Publishing Company Ltd. V. Chief Chucks Adophy111
where
it was held that state of mind of the infringer is only relevant in the determination of the
question whether damages will be awarded or whether an inquiry as to profit will be
ordered. Infringement can be direct or indirect. In both direct and indirect infringement,
the essential requirement is that the Act of infringement complained of must not have
been with the licence or authorisation of the owner of the copyright.
An infringement could also constitute a criminal offence under the Act.112
As concern
primary infringers, that is to say those people who actually perform the Act the doing of
which is controlled by copyright without seeking the consent of the owner of copyright,
not much problem is experienced in deciding whether they have infringed or not. For
the simple question to be addressed is whether the act was done or not. However,
some difficulties have been experienced in determining whether a person can be
deemed to have, in the word of the Nige ia la aused a othe to i f i ge op ight
o i the o d of E glish La autho ised the othe to i f i ge op ight.113
Formerly, the tendency had been to interpret the provisions of the Act which deals with
these species of infringement respectively; however recently a body of the decisions of
English courts seem to imply a more liberal interpretation of this provision as to impute
111
(1986) 4 NWLR p.205
112
st
113
Ibid

72
authorisation to anybody who provides the opportunity for infringement or who orders
from a person who is not the owner goods protected by copyright, which is produced
and without the requisite consent of owner.114
In Stand On Engineering Ltd And Another V. Spalding And Sons And Other.115
It was held
that where a dealer places with a manufacturer or supplier an order for the supply of a
quality of a particular article and the article are made or supplied to that order, it is
impossible to say that the dealer has not authorised their making. If any liability in law
should therefore follow from the authorisation of the making of the article in the event
of its being unlawful, the dealer bears the full consequence of such authorisation.
Also in Moorhouse V. University Of New South Wales116
it was held the defendant
university which provided photocopying machines close to its library and which were
used the stude ts to op pa t of a ook o tai ed f o the u i e sit s li a as
held to be liable for infringement of copyright. Therefore, the court upheld the
contention that the university by permitting and facilitating the infringing act could be
said to have authorised it.
However, in contrary to this decision, it has been held in C.B.S V. AMES RECORD AND
TAPE LTD117
that the lending of cassette records in a record shop together with sale of
blank tapes did not amount to an authorisation of an infringement act by the borrower.
114
Ibid
115
(1984) FSR 554
116
(1970) RPC
117
(1981) RPC 100

73
It follows that in any case of infringement the plaintiff has to establish not only the
works in respect of which complaint is made is in fact so nearly resembles his, as to be
capable of being an infringement but also that it has been produced by the use of those
feature of his work which by reason of knowledge, skill and labour employed in their
production constitute its original copyright work.
Infringement of copyright may include the following:
1. Reproduction;
2. Public performance;
3. Publication;
4. Translation;
5. Adaptation;
6. Public distribution;
7. Public dissemination;
8. Importation, public exhibition, permitting use of place.
INFRINGEMENT BY REPRODUCTION

74
Copyright in a work will be infringed if the work is copied without the consent of the
copyright owner.
The Act provides that no person who is not the owner of the copyright in a literary or
musical work may reproduce or authorise the reproduction of the work in any material
form without the licence or authorisation of the owner.
Reproduction is defined in S.51118
as the making of one or more copies of a literary,
musical or artistic work, cinematograph film or sound recording. Thus, a person who
makes an identical version of the owne s o k has lea l ep odu ed it a d this is so t
of reproduction which most commercial piracy and counterfeiting employed.
Copying:
Copying is an infringement of copyright under the Act, S.51119
defined copy to mean a
reproduction in written form, in the form of a recording or cinematograph film, or in any
other material form. This means that the reproduction of literary work needs not be in
writing. It may be in the form of computer software or in some other graphic
reproduction. However, for the work complained of to be treated as a copy, it must
have been based on the copyright work because copyright law does not forbid the
independent expression of the same idea by different persons.
118
S.51 Copyright Act Cap C28 Law Of Federation of Nigeria 2004
119
Ibid

75
Copying could be direct or indirect but there is always the need to show a casual
connection between the copyright work and the act alleged to be an infringement120
A plai tiff ho alleges that his o k has ee i f i ged the defe da t s op i g of his
work must prove to the court that the defendant copied his work and that the copying
was substantial enough to be improper.
Furthermore, the plaintiff must prove that the defendant had access to the plaintiff
work; otherwise the possibility of copying becomes improbable.
COMPLETE AND PARTIAL INFRINGEMENT
In copyright, it is not necessary for a person to copy, perform, broadcast and do any
other restricted act to the whole of a protected work before he is considered to have
i f i ge o it .Thus, it goes al ost ithout sa i g that a te su h as su sta tial pa t
is difficult to define in theory than indentify in practise.
The follo i g ules a assist the ou t to dete i e hat su sta tial pa t is:
1. A large proportion of a work may almost certainly be regarded as substantial part
of it; in SILCTOA V. MCGRAIL121
it was held that the first 300 pages out of the 600
pages have been considered to be a substantial part.
120
OP CIT p.43
121
(1985) FSR p.545

76
2. A small portion of a work may well be a substantial part if it possesses any
commercial value thus in University Of London Press Ltd V. University Tutorial
Press Ltd.122
Pe Pete so hat is o th op i g is o th p ote ti g
3. Even a small proportion of a work may well be a substantial part of it; if it
possesses a key feature by which the whole is identified or recognised.123
It
should be noted that whether a work is substantial or partial inherently
subjective and depend on how the court feels about the case.
OTHER FORMS OF INFRINGEMENT
Other forms of infringement include the following:
a) Publication: a literary or musical work is infringed where it is published by
another without the licence or authorisation of the owner publication as
defined under S.51 of the Act is deemed to have occurred if copies of the work
are made available in a manner sufficient to render it accessible to the public
and where, in the first instance, a part only of a work is published, that part is
treated for this purpose as a separate work. Publication includes making the
work available to the public either for sale or for free.
b)Public Performance: according to S.51 (1)(g)124
it is an infringement of copyright to
perform a work in public without consent of the owner. What the law actually
122
(1916) 2 CH 601
123
Spelling Goldbar Production Incorporation V. B.P.C Publishing Limited. (1981) FSC 281
124
S.51(1)(g) Copyright Act Cap C28 Law Of Federation of Nigeria 2004

77
prohibit is the public performance of the work. It is therefore , important not
only to show that there has been a performance but that the performance was
in public.
The determination of what would constitute a public performance is a question of fact
with no fixed criteria. However, the court have used such factors as profit, the size and
character of the audience, its relationship to the copyright owner, and the kind of
place where the performance took place as criteria for determining the character of
the audience.
Further for this purpose any performance is in public that is not restricted to member
of the home circle of whoever is responsible for the performance.
Guest may be presented and there can be large parties to see or hear the
performance. But it must be a real domestic affair.
Pe fo a e fo the pu pose of op i g i ludes; pe fo a e ea s of
mechanical instrument such as a cinematograph, projector, a wireless, a Tv receiver,
showing a film public. Although artistic works cannot be performed, it is an
infringement to exhibit them on television.
C. COMMERCIAL DEALING: Infringement may also occur where any person, without
the license or authorisation of the owner of the copyright, distributes by the way of

78
trade, offer for sale, hire or otherwise, or for any purpose prejudicial to the owner of
the copyright, any article in respect of which copyright is infringe directly.125
D PERMITTING USE OF PLACE: It is an infringement to permit a place or public
entertainment or business to be used for a public performance of a work where the
performance constitutes an infringement of the copyright in the work unless the
person permitting the place to be used was not aware, or had no reasonable ground
for suspecting that the performance would be an infringement of the
copyright.126
However, the place in question must be a place of public entertainment or
of business and not a private or domestic premise.
E IMPORTATION: The Act prohibits the importation into Nigeria of any copy of a
work which, if it had been in Nigeria, would be an infringing copy under the Act.127
The
plaintiff does not have to show that the use for which the copy is intended is private or
domestic, although such a plea by the defendant may be a good defence.
F PUBLIC EXHIBITION: It is an infringement to exhibit any article in respect of which
copyright is infringed directly.128
The prohibition here arguably extends to the
infringing copies of the work or any other article which, though not copies in strict
sense never the less embody the object of the infringement.129
125
S.15(1)(d) Copyright Act C28 Laws of Federation of Nigeria 2004
126
S.15(1)(f) Copyright Act C28 Laws of Federation of Nigeria 2004
127 127
S.15(1)(b) Copyright Act C28 Laws of Federation of Nigeria 2004
128 128
S.15(1)(c) Copyright Act C28 Laws of Federation of Nigeria 2004
129
st

APPLICATION OF COPYRIGHT LAW AND ITS INFRINGEMENT IN NIGERIA PRESENT CONTEMPORARY SOCIETY

APPLICATION OF COPYRIGHT LAW AND ITS INFRINGEMENT IN NIGERIA PRESENT CONTEMPORARY SOCIETY

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