What makes the new Act significantly different from the Act of 2004?
The old Copyright Act, although contained in the 2004 Laws of the Federation, was promulgated in 1988 long before the internet and online exploitation of copyright works became part of our daily life. The 1988 Act was only amended tangentially in 1992 and 1999, to enhance the administration of rights and the enforcement powers of the Nigerian Copyright Commission, without changing the analogue character of the law.
Being the first intellectual property statute to be concluded in a civilian dispensation, the new Act is a product of a deliberate bottom-up legislative process. So, unlike the 1988 Act and the earlier 1970 Act, both of which were promulgated as decrees, the 2022 Act has been enriched by wide consultations and stakeholder participation.
In very clear terms, the new Copyright Act sets out its objectives, which would serve as guide in the interpretation and implementation of the provisions. The four cardinal objectives as set out in Section 1 of the Act are to protect the rights of authors to 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; and enhance the capacity of the Nigerian Copyright Commission for effective regulation, administration, and enforcement of the provisions of the Act.
Apart from being more elaborate with 109 sections and a schedule as against the old Act with 52 sections and five schedules, the 2022 Copyright Act is purpose built for a more efficient use, administration and enforcement of rights in a digital environment. It better addresses flexibilities allowed under the treaties to meet the needs of society in a knowledge driven world.
In summary, how does the new Act enable effective administration, regulation, enforcement and protection of copyrights?
The new Act is an improvement on the old order and its provisions have been hailed by many as a good start in the modernisation of the nation’s copyright system. The followings are some key provisions that would increase the protection of rights and enhance the administration, regulation and enforcement of rights.
Better definition of terms and the scope of rights granted for clarity and to align with the digital environment. Simple as this may be, it has wide ramifications for the protection and enforcement of rights in a digital environment. For instance, “copy” in relation to a work is now defined to mean a reproduction in any form including a digital copy. This is an improvement on the old Act where it was defined narrowly to mean a reproduction in a material form. Similarly, the rights granted a copyright owner in many cases include the right to control and making the work available to the public by wire or wireless means in such a way that members of the public are able to access the work from a place and at a time individually chosen by them. So, making a work available online without consent amounts to an infringement.
The new Act contains a wider range of criminal liability including the offence of aiding and imposes more deterrent penalties. It is instructive that most of the penalties prescribed are the minimum, implying that a Judge would be at liberty to impose a higher sentence. For instance, whereas the old Act provides for a fine of an amount not exceeding N1,000 per copy or imprisonment not exceeding five years, the new Act in the same instance provides for a fine of an amount not less than N10,000 per copy or imprisonment of not less than five years or to both the fine and imprisonment. A court would now be free to impose more deterrent punishments commensurate with the gravity of the offence. In some cases (such as communication to the public, making works available online, criminal infringement of broadcasts, or dealing in machines for production of anti-piracy devices), the penalties are as much as not less than N1million fine or terms of not less than five years imprisonment. To help fast-track the criminal process, the commission also now has the powers to compound any offence by accepting sums of money not exceeding double of the minimum fine to which the offender would have been liable if he had been convicted of the offence.
What is the position of the Act on online infringement and Internet Service Providers?
One of the major defects in the old Act was the absence of provisions dealing with online infringements. The new Act now has elaborate provisions imposing duties and liabilities on Internet service providers (ISPs). An ISP has a duty, upon receiving notice of infringement, to promptly act and expeditiously take down or disable access to the infringing contents or links to such content hosted on its system or network. The ISP may also suspend the account of any subscriber who is adjudged to be a repeated offender.
Safeguarding of technological protection measures (TPMs). Unlike the old Act which has very minimal provisions for anti-piracy measures, the new Act now has elaborate provisions to safeguard TPMs and Rights Management Information (RMIs). Under the new law, it is an offence for any person to make, import, sell, distribute, hire, offer or expose for sale or hire any technology or device that is for the circumvention of a TPM. Consequently, it is now an offence to import, sell or distribute set-top boxes for pirated online movie or broadcast streaming. It is also an offence to provide a service to another knowing that the service is to enable or assist that other person to circumvent a TPM.
Exceptions and Compulsory licensing provisions. As in the old Act, the new Act provides for a series of exceptions which set the boundaries for rights granted to copyright owners. These exceptions have been more clearly defined for ease of interpretation and application. One of the new provisions introduced under the 2022 Copyright Act is the powers granted to the Nigerian Copyright Commission to authorise the use of a work by any person for the purpose of rectifying the abuse of a dominant market position or to promote public interest. The nature and conditions precedent to the exercise of the power are elaborately spelt out in the Act and would be subject to the Regulations to be made by the Commission.
In line with the requirements of the Marrakesh Treaty to which Nigeria is a party, the new Act has a special exception in Section 26 for the blind, visually-impaired and persons with other print disability. Unlike the old statute that only allows the production and distribution of works in Braille for only the blind, the new Act now addresses the needs of all print disabled persons and permits authorised entity (as may be designated by the Commission) to make or produce an accessible format copy of a work or subject matter for the use of and supply of the copy thereof to beneficiary persons by means, including non-profit lending or electronic communication by wire or wireless means.
The new Act has not departed much from the general requirements for the operations of Collective Mmanagement Organisations (CMOs) although the penalties for operating as a CMO without the requisite approval have been increased. Whereas the offence carried a fine of N1,000 on first conviction and N2,000 or imprisonment for six months (or to both) for any subsequent conviction, the new Act imposes a fine of at least N1million or imprisonment for not less than five years (or both). In the case of a body corporate, the old penalty was a fine of N10,000 on first conviction and N2,000 for every day on which the offence continues while the new Act prescribes a fine of at least N5 million.
Aside the powers to regulate CMOs, the Commission now has the powers with the consent of the Minister, to make regulations for specifying the conditions necessary for the operation of a business involving the production, publication, public exhibition, distribution, sale, hiring, rental, storage, warehousing or any other dealings with a work in which copyright subsists. It may also prescribe any fees for any transactions, or fines for any act or non-compliance arising from the provisions of the Act or a regulation made pursuant to Act. Contravention of a regulation, order or any other instrument made under the provisions of the Act, or non-compliance with any administrative sanctions imposed under any directive or regulation issued by the Commission constitutes an offence and is punishable, in the case of first offence, with a fine of not less than N100,000 and in the case of a repeat offence, with a fine of not less than N500,000 or imprisonment for a term of not less than 6 months.
Also, the Commission, in exercising its powers of enforcement and compliance, may: (i) demand-for evidence of compliance from persons, public or private institutions and organisations; (ii) caution a non-compliant person or entity in writing; (iii) sanction a non-compliant person or entity by the imposition of administrative fines; (iv) institute criminal-proceedings against a non-compliant person or entity; (v) institute civil actions against the defaulting person or entity; and (vi) obtain a court warrant or order to seize or detain any book, record, document or other information storage system or database which use does not conform with the provisions of the Act or relevant regulations made pursuant to the Act.
Statutory endorsement of registration of copyright ownership for certainty and evidentiary value. Although the Act makes it clear that the enjoyment of copyright does not require any formality (including registration), copyright registration is now a basis for the statutory presumptions which would aid the proof of cases in the event of infringement. This would contribute to the effective administration of rights under the new Act.
The new Act is generally more user-friendly with key provisions, including the duration of copyright, exceptions, and transitional provisions (which under the old Act were tucked away in the Schedule) now in the body of the statute.
How prepared is NCC for the new challenges as provided by the new Act, especially the digital space?
The new Act is largely a product of a deliberate reform process which the Commission launched in November 2012. It is, therefore, aware of the challenges that the new Act would bring. The reform agenda had an inbuilt implementation plan, which is now being revised in consultation with stakeholders to accommodate more players. In anticipation of the new Act, the Commission had established an Online Enforcement Unit and embarked on a series of training for its personnel. More staff and resources would be required to monitor the online space and respond to the demands of right owners and members of the public. In the meantime, in order to bridge the personnel gap, the Commission will rely on collaborations with other agencies and stakeholders.
Incidentally, the Commission was also in the forefront of the recent interagency collaboration leading to a National Intellectual Policy and Strategy for Nigeria. Some of the implementation steps envisaged in that document would also apply to the new Act. We have begun the deployment of some of the solutions such as (i) the implementation of the Copyright Levy scheme to provide the needed revenue streams for authors and the enforcement programmes of the Commission; (ii) establishment of safety nets for the creative economy and clear direction on the management of IP assets; (iii) introduction of proactive regulatory interventions to further check piracy; (iv) introduction of effective technology-enhanced anti-piracy measures review of the CMO Regulations to hold CMOs to a higher level of accountability; (v) strengthening of the copyright support systems (the courts and other regulatory institutions) to guarantee positive outcomes in the adjudicatory process; (vi) continuous training and retraining of all players in the creative sector; and (vii) building of institutional confidence in the collaterisation of copyright assets to assist those in need of investment funds.
Enforcement is not cheap, and it is even more demanding when it has to be done in the physical space and online. Fortunately, the Commission presently enjoys a measure of goodwill amongst right owner groups so that should help ease the burden of monitoring and enforcement. We expect more industry-based regulation and compliance. On financing, the Commission is also hoping that the commencement of the Copyright Levy regime which has an inbuilt component for anti-piracy operations would provide it with the needed funds for the effective implementation of the new copyright system.
How would you have felt if the Bill wasn’t signed into law by end of this administration? How would that have impacted the creative sector?
With the level of stakeholder participation and support in the law-making process, I never really had a doubt that the Bill would be signed into law eventually. It was only a question of time. The whole world was expectant and for them, it would have been a disappointment if the Bill was not signed when it was. But then everyone knew that Nigeria had worked hard at it and my fear was that the any further delay would only make the job of enforcing copyright harder. It would have meant using analogue tools to deal with digital problems. But at every point, my optimism was strengthened by the fact that this administration under His Excellency, President Muhammadu Buhari, GCFR with the active support of the Honourable Attorney-General of the Federation and Minister of Justice, Abubakar Malami, CON, SAN had deposited four copyright treaties at the World Intellectual Property Organization (WIPO) in October 2017 demonstrating its commitment to modernizing the country’s copyright system. It is also encouraging that that the Executive Bill, which formed the template for the new Act had received the blessing of the Federal Executive Council in 2018. For us it was therefore only a question of time.
All in all I am relieved that Nigeria finally has the new Act, a watershed in the development of copyright law in Nigeria and the first successful legislative intervention in the field of intellectual property under a democratic regime. It is a sign of better things to come and again, I thank our stakeholders for their resilience and support for the reform process.
Awareness of rights is one sure way to stemming piracy. What are the commission’s plans to educate stakeholders about their rights and how to protect them?
The Commission has redesigned its public awareness strategy and we are taking the message of copyright to all levels of the public. As soon as the Bill is published in the Official Gazette, the Commission will commence mass enlightenment and education to ensure that the public is well informed on the changes, especially the criminal consequences of copyright piracy and other abuse. We will consult widely in the formulation of Regulations and other implementation strategies. For this we shall be enlisting the support of the media, who incidentally are also major stakeholders as owners and users of copyright works. We can never have enough of enlightenment.
Any parting thoughts?
I thank President Muhammadu Buhari, Attorney-General of the Federation, Abubakar Malami, members of the Joint Committees of the Senate and other members of the National Assembly, especially Senator Mukhail Abiru who had sponsored a private member Bill and supported the harmonization process, all the intellectual property experts that worked with us throughout the drafting process, all national and international stakeholder groups that submitted comments and gave insight on various aspects of the new law and to my predecessor in office, Mr. Afam Ezekude who initiated the reform process in 2012 and continued to give me the needed encouragement even after leaving office. The Copyright Act is the product of extensive collaboration across industry interests and it is my hope that we would all bring the same collaboration to bear in its implementation to change the copyright narrative in Nigeria for wealth creation and national development.
