The Nigerian Copyright Notification Scheme
Babatola Apata*
Abstract
The Nigerian Copyright Commission (the “Commission”) is a statutory body established by law. The Commission has a common seal, corporate personality and vested with perpetual succession. The Commission has the exclusive responsibility for all matters affecting copyright in Nigeria. Very recently, the Commission established the Copyright Notification Scheme (the “Scheme”) in furtherance of the Commission’s statutory responsibility of “maintaining an effective data bank on authors and their works” and in pursuit of its desire to create an enabling environment for the protection of copyright through effective administration and enforcement of all categories of copyright subsisting in the works eligible thereto. This paper examines the establishment, purposes and benefits of the Scheme. The paper advocates that the Commission, as the regulator and protector of copyright works and its allied intellectual rights in Nigeria, should enact a set of coherent administrative rules for the purpose of achieving the overall objectives of the Scheme.
1. Definition of terms
Copyright is the right that subsists in certain category of works as enacted by the Copyright Act.[1] Areas of copyright protection are: literary work, dramatic work, cinematography, broadcast, artistic work and sound recording. The proprietary right conferred on the author/owner of these works, subject to certain permissible exceptions includes the exclusive right to make a copy, broadcast publish to the public. In order for any work of those categories to qualify for copyright, (i) it must be original; (ii) sufficient efforts must have been expended on it by its author; and it must be fixed in a definite medium of expression upon creation.
2. The Nature of Copyright
Copyright is automatically vested on works eligible thereto by the operation of law. Once the work meets the requirements of the Act, it immediately acquires copyright protection. There is no legal obligation on the author of the work to register with any Government regulatory agency before the copyright is confirmed or subsist on the work. Regardless of the non binding legal-obligation on copyright owners to register their work for them to qualify for copyright protection, the Commission has deemed it fit to establish the Scheme.
3. The Scheme
The Scheme was not established pursuant to any legal or administrative instrument. The Scheme is not only voluntary, but a creature of the administrative ingenuity of the Commission. As we write, the Commission has established other schemes and projects which are backed up by defined regulatory regimes. For example, the Commission had by delegated regulations established the copyright (collecting societies) Regulations of August 16, 1993, Copyright (Video Rental) Regulations of September 7, 1999 and copyright (Security Devices) Regulations of September 7, 1999. It is, therefore, surprising that the Commission has not thought it wise yet to establish a well defined administrative framework for the Scheme.
3.1 The Purpose and Benefits of the Scheme
3.1 The Scheme is designed to ensure that creators and authors of works merely “notify” the Commission of the subsistence of copyright in the work concerned, or notify the Commission of the transfer of the copyright either by way of assignment or licence. The Scheme requires authors of works notifying the Commission of the subsistence of copyright in their work to supply the Commission with the following information: (i) the name of the applicant; and his status in relation to the work. The applicant may be the author, owner of copyright, licenser or agent of any of the foregoing; (ii) the title of the work; (iii) year of creation of the work; (iv) the year and country of first publication of the work.
In the case of notification of transfer of copyright, the Applicant is required to supply the commission with the following information: (i) the nature of the transfer, reassignment of license under a will or other testamentary disposition; (ii) the date of the transfer; (iii) the right transferred e.g. reproduction, publishing, broadcasting, public performance, distribution, adaption etc; (iii) the territory covered by the transferred right; (iv) the duration of the transfer.
These information supplied by the applicant to the Commission under this Scheme must be verified under oath. The Commission issues a certificate for every successful application. The Certificate is titled “Certificate of Notification of Copyright.” The Scheme does not offer any additional protection to the work other than that already provided by the Copyright Act. However, the information compiled thereon form part of the Commission’s data base, which can be assessed by all and sundry through the Commission’s website.
Perhaps, the most significant benefit of the Scheme is to the administration of justice rather than to the copyright owners and licensee. Certificates issued to copyright owners there-under are admissible and may be relied upon before the courts to resolve any disputes concerning the following: (i) copyright existence; and (ii) copyright ownership.[2]
The information, data and records collated and kept by the Commission under the Scheme are publicly-available and in fact uploaded unto the Commission’s website. These would always serve the need of the intellectual property community i.e printers, publishers, authors, artistes, gramophone producers and broadcasters e.t.c. in ascertaining the identity of copyright owners, their heirs or successor-in-tile with little or no difficulty, thereby preventing, fraudulent practices in copyright transactions.
The Scheme would also be of tremendous assistance to the Commission in the exercise of its powers to grant compulsory licence in respect of copyright work. A readily available register of copyright works and their owners compiled under the Scheme would smoothen the work of the Commission in determining whether or not a compulsory licence ought to be granted in respect of any work for public good.
4. Conclusion
The Scheme is an innovative and revolutionary initiative of the Commission. It has not established a compulsory registration regime. Its conception, operation and administration are founded on the underlying philosophy of the copyright protection laws – which copyright automatically subsists in all works of arts that are so entitled upon their creation without any need to register them with any Government agency or fulfil any other legal formality before their work would be so entitled.
The Scheme’s establishment and administration is in furtherance of the Commission’s duty to maintain effective data bank on authors and their work. Notwithstanding it’s innovativeness, purpose and benefit, there is no known justification for the absence of a well defined regulatory framework for the administration of the scheme. In a matter as important as copyright administration and enforcement, the rule of law and not the rule of “the thumb” should be preference of all and sundry.
A well-defined set of rules for the administration of the Scheme would in no small measure enhance the achievements of its objectives to the benefit of copyright owners and the due administration of justice. The Commission should, therefore, exercise its rule making powers by enacting a set of coherent rule, for the administration of the Scheme.
* LL.B, BL, legal Practitioner with G. Elias & Co, Lagos, e-mail: babatola.apata@gmail.com
[1] Cap C28, Laws of the Federation of Nigeria, 2004.
[2] The Act, s. 42 (1) and (2) stipulates that “an affidavit made before a Commissioner for Oath, Notary Public or other person competent to administer an oath in terms of the law of the country where the oath is made which – (a) purports to have been made by or on behalf of the owner of the copyright in a work; and (b) states that (i) at the time specified therein, copyright subsists in the work; (ii) the person named therein is the owner of the copyright in the work; (iii) a copy of the work exhibited to the affidavit is a true copy of the work; (iv) the author of the work is a citizen of or domiciled in a country named in the affidavit; (v) the author of the work is a body corporate established; (vi) incorporated by or under the law of the country named in the affidavit; (vii) the work was first made or published in the country named in the affidavit; or (viii) the certificate attached to the affidavit is a true copy of the certificate or registration of the incorporation shall be admitted as evidence of the facts stated therein without further proof in any proceeding under this Act. The Court before which an affidavit is produced under subsection (1) of this section shall presume, until the contrary is proved, that the statements made therein are true” this provision appears inadequate, and may be further strengthened by certificate issued by the Commission under the Scheme