Amid cheers, YEJIDE GBENGA-OGUNDARE examines the new Copyright Act, 2022, its triumphs, international alignments and concerns.
On March 17, 2023, President Muhammadu Buhari assented to the Copyright Act 2022, alongside other new laws, to reflate some critical sectors of the economy. The presidential zeal subsequently drew the curtains on its predecessor, the Copyright Act LFN 2004, thereby, opening a new legal vista in the creative industry, in compliance with international copyright treaties as part of efforts to protect rights of creatives and other stakeholders, and ensure just rewards as well as recognition for their intellectual engagements.
The new law is also set, to provide necessary limitations or exceptions which will enable the Nigerian Copyright Commission (NCC) to create access to creative works and effectively ensure the enforcement and compliance of persons and entities with the provisions of the Act.
One stand-out provision of the law, is that it has expanded the powers of the NCC to serve as a kind monitoring body, by creating a fund for the commission that will be financed by government statutory allocation and other sources for the promotion of its objectives.
Another new introduction into the law, is that while literary works, musical works, audiovisual works, sound recordings and broadcasts are now eligible for copyright protection, cinematography, which was covered by phased-out Act, is no longer eligible for copyright protection. It was excluded from the list of products for protection and replaced by audiovisual works.
While announcing the new law, Nasiru Baballe Ila, SSA to President Buhari on national assembly matters (House of Representatives), in a statement, made it known that the Copyright Act 2022, which repealed the Act of 2004, provides effective administration, regulation, enforcement and protection of copyright in the digital environment.
“The principal objectives of the new law as outlined in section one are to: protect the rights of authors and ensure just rewards and recognition for their intellectual efforts, provide appropriate limitations and exceptions to guarantee access to creative works, facilitate Nigeria’s compliance with obligations arising from relevant international copyright treaties and conventions, as well as enhance the capacity of the Nigerian Copyright Commission for effective regulation, administration, and enforcement,” he said.
Due to the widespread menace of content piracy, which has been a major challenge in the digital age; most importantly, in Nigerian music, film and television production industries as well as among authors and script writers, the introduction of the new Act, has been hailed as a significant advancement in the fight against content piracy and other forms of copyright infringement.
What new Act says
There are so many explicit provisions for protection under the Copyright Act 2022. There is an inclusion of digital content in Section 108 of the Act which protects online content creators from copyright infringements and states explicitly that such contents; whether it is video, pictures, audio or any other productions can’t be used without obtaining consent from the owner or creators of such works.
For audiovisual works, Section 11 of the Act provides that the consent of the owner of an audiovisual work must be obtained before it is reproduced, broadcast or distributed to the public for commercial purposes through sale or other transfer of ownership. This includes, making an audiovisual work available to the public by wire or wireless means, in such a way that it is accessible to members of the public from a place and at a time independently chosen by them.
Also, it made provisions for remuneration for the broadcasting of sound recordings and audiovisual work to owners of such work.
The law also does not exclude performers and mandates that the a performer shall have an exclusive right to control the fixation of his unfixed performance recording, broadcasting, reproduction and adaptation of their performance for a period of 50 years from the end of the year their first performance took place. This right applies to citizens and residents in Nigeria and performances that take place in Nigeria and countries which are parties to treaties or international agreements to which Nigeria is a party.
The Act further prohibits online infringement, that is, provision of another person’s work to the public without the consent of the owner of the work in which copyright subsists.
Whoever involved, is guilty of an offence and the new law, allows owners of copyrighted works to compel internet service providers to block user access to infringing content with a penalty of not less than N1,000,000.00 or imprisonment for a term of not less than five years or a combination of both for offenders.
Acts which constitute infringement include; refusing or omitting to pay upon demand, any royalty by virtue of a right of remuneration or agreement, aiding or procuring another person to commit an act which constitutes an infringement under the Act, circumventing any technical measure that controls access to copyright-protected works and making of a copyrighted work available to the public.
The Act further protects expressions of folklore; poetry, folk songs and dances, folk arts, drawings, carvings, sculptures, costumes and other works or imitations by providing that anyone that wants to make commercial use of expressions of folklore, must obtain permission from the relevant indigenous community concerned or NCC or face criminal sanctions.
In addition, this Act provides stiffer penalties; ranging from N10,000 (for each unauthorised copy of a work with copyrights) to N5,000,000 and imprisonment terms ranging from one to five years or a combination of a fine and an imprisonment term, to deter copyright offences and makes copyright infringement actionable in both civil and criminal proceedings.
Red flags
In spite of its strengths, there are however provisions what could be termed as red flags, which are potentially problematic, in the Act. These include provision on contract override, that makes any contractual term that prevents the doing of an act permitted under any of the copyright exceptions ineffective, in terms of licensing and out-of-court settlement agreements in cases of infringement.
Another one, is the provision that copyright levy be paid into a fund that would be administered by the NCC and disbursed to approved collective management organizations or other representatives of copyright owners.
This arrangement has the potential, to be problematic, as NCC is granted sweeping new powers that allow it to authorize the use of a work by any person for the purpose of rectifying the abuse of a dominant market position or to promote the public interest.
This also extends to making regulations under the Act, specifying conditions necessary for the operation of any business involving the production, publication, public exhibition, distribution, sale, hiring, rental, storage, warehousing or any other dealings in works protected by copyright.
There is also the “fair dealing” provision, which is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It is a form of obstacle to effective enforcement of copyright claims in Nigeria as it serves a defense to a case for copyright infringement.
By virtue of the fair dealing provision, where a work is used for the purpose of research, private use, criticism or review of the copyrighted work or for reporting current events, such use will not be considered an infringement of the exclusive right of the author of the copyrighted work. But when the research, review or criticism is for public use, the Act requires that the author of the copyrighted work be properly acknowledged unless the work is “incidentally included in a broadcast,”
We are grateful – PMAN
The Performing Musicians Employers Association of Nigerian (PMAN), led by Pretty Okafor, has commended President Muhammadu Buhari for signing into law the Copyright Amended Bill, which repeals the Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004.
Describing the development as a fresh breath, he applauded the President for making the law a reality. He further said that the new Copyright Act would go a long way in promoting creativity and encouraging Nigerian artistes to be more productive.
The PMAN president also expressed his gratitude to the Minister of Justice and Attorney General of the Federation, Mr. Abubakar Malami (SAN); Director General, Nigerian Copyright Commission (NCC), Dr. John Asein and the National Assembly members for the epoch making legislation and specifically thanked Senator Tokunbo Abiru representing Lagos East District in the Senate; Nigerian Television Authority; musicians, especially 2face Idibia and the Nollywood actors that accompanied him to the National Assembly to defend the bill during the public hearing.
“President Buhari has demonstrated unalloyed commitment to the growth of Nigerian music and entertainment. The noble gesture will not only have a positive impact on the nation’s creative sector, it would also rub off greatly on the economy,” Okafor said.
He appealed to all Nigerians, especially content creators and users, to support Buhari’s gesture and ensure that the initiative, works for a better creative industry.
“I equally appeal to all music pirates and unauthorised creative content users to desist from their nefarious activities, as it would not be business as usual with this new Copyright Amendment Bill,” Okafor stressed.
Great parting gift from President –MCSN
The Musical Copyright Society Nigeria (MCSN) also congratulated the President for pulling the improved legal backing for the creative industry, off, noting the new Copyright Act 2022, as a presidential parting gift to creatives across board.
The Chief Executive Officer of the Society, Mr. Mayo Ayilaran, in a letter, thanked the exiting President for deeming it fit to give to the creative industry a parting gift in the form of a new copyright law.
“We have received with joy and hearts filled with gratitude the new Copyright Act 2022, which you recently signed for the creative industry in the Federal Republic of Nigeria. We most sincerely thank you for this, as a parting from Your Excellency,” he said,
The society also thanked the President for the great impact of his administration on the creative sector in the last seven years during which hard decisions were taken, “all of which have repositioned our creative industries to be coming up as a virile economic sector in Nigeria” Ayilaran added.
“Nigerian music, movies, literary work, and artworks among others, are now ranked among the best across the world and yielding multimillion dollars for our creators” the boss of the MCSN boasted.
Ayilaran informed the President that as he is rounding off his tour of duty in the service of the country, MCSN considers it very necessary to lend, “our voice in letting the world know how you have positively impacted the copyright space and you would forever remain in our good and fond memories,” he stated.
Lawyers speak.
Law operators are the problems–NBA ex-chair
Former chairman of the Nigerian Bar Association, Ikeja branch, Dave Ajetomobi chairman, sees implementation as the problem and not the law, whether old or new.
“I think the new Act will be better than the old one” he said, adding “our problem has never been that of good or bad law but that of putting square peg in a square hole” he submitted.
Backing his claim up, he alluded to another government agency which is widely seen as up and running.
He said, “Who knows that NDLEA can perform the way it is doing now until Marwa (Brigadier General Buba Marwa), was appointed? The long and short of implementation of laws is that competent persons be put in charge of implementation.
“The NDLEA Act was not amended to make Marwa effective but the man came with vision. Nobody believed that such a huge consignment of drugs would enter or pass through our country until Marwa was put in the saddle.
“The situation got worse under the outgoing administration. My belief is that if the right persons who possess the necessary skill are put in charge of NCC, the needed reform will be carried out for the benefit of owners of the intellectual properties and creative industry and the nation in general.
“I maintain that our problem is not the laws but operators of the laws which sometimes include the courts” he argued.
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