Improvements in the new Nigerian Copyright Act 2022

Authors

Adaolisa Anyamutaku
A trade mark attorney at Von Seidels Nigeria.

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Nigeria’s former president signed a new copyright bill into law on 17 March 2023. The new Copyright Act is a welcomed development that was long anticipated in the creative industry. It is the first of the laws regarding intellectual property in Nigeria to be updated to reflect recent developments in the field. The Act repealed the Copyright Act 1988 and made notable improvements to address the current challenges in the creative space as well as align with the requirements of international agreements that Nigeria became signatory to in recent years.

The notable improvements brought about by the new Copyright Act include:

  • The new Act incorporates the provisions of the WIPO Performance and Phonogram Treaty, WIPO Copyright Treaty, Beijing Treaty on Audio Visual Performances and Marrakesh Treaty. These treaties were ratified by Nigeria in October 2017 and now by virtue of their inclusion in the new Copyright Act have the force of law within the contemplations of the Nigerian Constitution.
  • It is now possible to provide copyrighted works (literary and artistic) in accessible format for blind and visually impaired persons without the permission of the copyright holder.
  • It expanded the rights conferred by copyright to cover making the work available to the public by wire or wireless means in a way that the public can access the work at their own time. This takes care of making works available online.
  • The Act expands the duties and powers of the Nigerian Copyright Commission (the Commission) to include acting against infringing online content without authorization from the copyright owner and the power to block or disable access to any infringing content, links or websites hosted on a system or network. This is probably to offer an alternative for when the service provider fails or delays to do so.
  • It empowers copyright owners to request a service provider to take down or disable access to infringing content hosted on its system or network.
  • Certain responsibilities were imposed on Internet Service Providers such as to take down or disable access to infringing content upon notification of the copyright owner, to ensure based on high industry standards that infringing contents that have been removed are not reloaded unto their system or network and to disable access to such if it occurs, to warn a subscriber with an account repeatedly posting infringing content, and to suspend the account is such action persists.
  • Copyright owners can now apply to court for an order that a service provider disclose the identity of an infringer. This provision would be relevant for infringers who attempt to hide their identity and indirectly imposes a duty on service providers to obtain the necessary information of subscribers for their record.
  • There are new provisions regarding technological protection measures and right management information including prohibiting the manufacture, import, sale or offer for sale of any product that is designed to circumvent the protection offered by a technological protection measure. It also defines what constitutes a technological protection measure as a measure that in its ordinary operation controls access or prevents or restricts acts in respect of the works protected under the Act.
  • The provision regarding restriction of importation of printed copies of copyrighted works was expanded to cover import or export of any work or material that infringes on a copyrighted work. The old Act restricted this act to printed materials, but this has been expanded in the new Act to cover any infringing material. This process can be initiated by the copyright owner notifying the Director-General (DG) of the Commission in writing or the DG of his own accord acting upon reasonable suspicion. In either case, the DG writes to the Comptroller-General of Customs or officer in charge of the border to identify and intercept the infringing work.
  • Provisions regarding punishment for copyright offences were amended to state the minimum punishment as opposed to the maximum contained in the old Act.
  • It empowers the Commission to establish a Dispute Resolution Panel to resolve disputes regarding payment of royalties, terms of a license or any matter that is required by the Act to be determined by the Commission.

 

Although the Act has taken reasonable steps to ensure that the interests of copyright owners are sufficiently protected online and all the notable improvements stated above, there remains certain grey areas left unaddressed such as ownership of AI generated works and whether they are eligible for copyright protection. Undoubtedly, the Act gave very broad powers to the Commission. It is not yet clear if this is in the best interest of right holders however, given the wide consultation among stakeholders in the creative industry that resulted the new Act, the broad powers ought to benefit right holders.

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