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SATURDAY BREAKFAST with TONY OKOROJI

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NO… NO… NO, MY LORD! THERE IS NO REGISTRATION OF COPYRIGHT IN NIGERIA!

I have the greatest respect for those of our judges who under the most difficult conditions still try to do justice in Nigeria. They give hope to the average Nigerian that all is not lost, at a time when hope is increasingly becoming a scarce commodity.

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I truly wish I did not have to write this piece. I spent days agonizing over it. I know that judges can sometimes get it wrong because the law is so wide and no judge knows everything. That is why we have the appeal process. There are however some judicial decisions that are so wrong that they shake the very foundation of common sense and threaten the lives and livelihood of so many. I would have failed the entire creative community in Nigeria if I did not react and speak out in this case. The consequence for Nigerian copyright owners would be disastrous.

During the week, I was sent a copy of the ruling on June 25, 2021 of Hon Justice B.F.N. Nyako of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/145/2019 between Paul Allen Oche and Nigerian Breweries Plc and three others.

At the last page of the ruling, her Lordship stated thus: “I have searched the entire originating processes of the Plaintiff and I have failed to find any place where he has exhibited his registration of the said Copyright. This is what confers the locus standi on the Plaintiff to institute this suit in the first place.

“It is basic principle of law that Copyright exist by virtue of Sections 2, 3, 6, etc of the Copyright Act. However, to claim an infringement of Copyright, the Copyright must be registered.

“In the instant case, the Plaintiff is alleging infringement of his Copyright but he has failed to exhibit his registration.

“At this stage, I cannot go into whether his Copyright has been infringed or not because he has not shown his locus standi to claim the Copyright”

In my many years of active engagement in the copyright system in Nigeria, I have seen court decisions that make me want to cry. Upon reading the said words of Hon Justice Nyako, I nearly fainted! If her decision becomes the precedent and I know that Federal High Court Judges tend to respect the decisions of their colleagues, then the entire Nigerian copyright system has collapsed because the system would be founded on nothing. By her decision, no owner of copyright in Nigeria can sue for the infringement of copyright because no one in Nigeria can show proof of any registration of copyright.

Contrary to popular belief and that of her Lordship, there is absolutely no requirement for a work to be registered for the owner to enjoy copyright protection in Nigeria. With all due respect to her Lordship, you do not need any copyright registration to have the locus standi to claim the copyright in your work. There is no Registrar or Registry of copyright anywhere in Nigeria and no formality is necessary by law. Anyone telling you that he is registering your copyright in Nigeria is engaged in some form of 419.

It is very true that copyright is intellectual property. By some recent decisions of the Supreme Court of Nigeria, the owner of copyright clearly enjoys the proprietary rights enshrined in Section 44 of the Constitution of the Federal Republic of Nigeria. However, the owner of copyright is not like the owner of a piece of land who may require a C of O to establish the ownership of his land. He is not like the owner of a trademark who may require a trademark registration to sue.

Believe it or not, copyright protection begins as soon as an original and eligible work is created and put in a tangible form. Full Stop!

So, why then do people troop to organizations like the NCC or COSON to ‘register’ their works? To my mind, such activities are merely documentation of the works in the databases of these establishments for the purpose of administering the works and not registration and they do not confer any constitutional or legal rights to the owners of the works.

Indeed, registration of copyright is contrary to the provisions of the various international copyright conventions to which Nigeria is a signatory. An example is the Berne Convention for the Protection of Literary & Artistic Works administered by the World Intellectual Property Organization (WIPO) which Nigeria joined on September 14, 1993. Article 5 (2) of the Berne Convention makes it clear that no formality is needed to ensure protection of copyright. In other words, no registration is required, no deposit is required and no notification is required. Protection is automatic.

In fact, registration of copyright is an almost dead practice. Across the world, only the United States of America still registers copyright and only for the purpose of bringing an action and not for protection. Elsewhere in the world, copyright registries have been dismantled and the registrars sent home.

If you do not give serious thought to the issue, you may consider the absence of any statutory registration procedure for copyright as a major defect of the Nigerian Copyright law. I wish to discuss some of the many reasons why it has been widely accepted across the globe that registration of copyright is not such a good idea.

Copyright does not just protect musical works, sound recordings, books, plays, movies, computer programs, photographs, broadcasts, etc. Copyright protects an almost endless list of creative works and works of artistic craftmanship such as paintings, drawings, etchings, lithographs, woodcuts, engravings, prints, maps, plans, diagrams, works of architecture, sculptural works, etc.

It may be clear to a paper presenter at a seminar or workshop that his work enjoys copyright protection but one is not sure whether the local pastor is aware that any unauthorized reproduction of his Sunday sermon is an infringement of his copyright and that he is entitled to sue, not just before God but in a court of law.

It may also appear odd but any unauthorized copying of a letter, report or memorandum, beyond what would be deemed as fair use, is indeed an infringement of copyright. Please note that your odd letter to your sweetheart is also protected by copyright.

The truth is that it is practically impossible to register even a tiny fraction of the works eligible for copyright. Every day, without being conscious of it, we are all creating eligible works in our letters, reports, memos, lectures, addresses, sermons, scripts, etc. Should we be required to register all of these, we will have no time to do any other work. Should the failure to register deny us the necessary protection? There are many who do not think so. To even attempt to register a fraction of the works eligible for copyright requires a bureaucracy, the size and cost of which is not meaningful to contemplate.

Just think of it: If registration is a condition for copyright protection, it then means that anyone who registers a work may claim copyright in the work even if he is not the creator of the work. Can you imagine the commotion this is likely to cause in a semi-literate society like ours with the enormous danger of fraudulent registrations which may in fact defeat the whole purpose of copyright protection?

I know that some people will react to this piece with disbelief. Some may even ask, “how then do I prove that I own the copyright in my work?”

In my humble view, her Lordship should have looked at Section 43 of the Copyright Act which makes provisions for presumptions in copyright infringement cases. The burden of proving ownership of copyright does not lie with the Plaintiff. It is the Defendant who must bring evidence to show that the Plaintiff is not the owner of the copyright.

With all due respect to her Lordship, her decision is dangerous and needs to be overturned. I do not know Mr. Paul Allen Oche, the Plaintiff in the matter, but I urge him, in the interest of the many thousands who depend on the copyright system for their livelihood to please appeal the decision since her Lordship has become “functus officio” in the matter.

No… No… No, my Lord! There is no registration of copyright in Nigeria!

See you next week.

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