AN APPRAISAL OF COPYRIGHT INFRINGEMENTS AND REMEDIES IN NIGERIA

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AN APPRAISAL OF COPYRIGHT INFRINGEMENTS AND REMEDIES IN NIGERIA

AN CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

Copyright violation has become a global concern in contemporary Nigeria and the world at large. Book piracy is an offence that poses great threat to publishing as a business in Nigeria for education, government and the society at large. Bot-mang (2006) reveals that piracy destroys creativity, diminishes talents and denies the intellectuals of the rights to the benefits of their property. There have been increasing concerns from authors and publishing industry in Nigeria over illegal book trade. This is because, pirates do not bear origination of published materials yet they sell and profit from fake products in the markets depriving the publishers and authors of the benefits of their works. Adelekan (2011) posits that Piracy is an illegal and illegitimate reproduction of other people‘s works without their consent and those that engage in this business eat from the sweat of other people who must have invested their intellect, time and resources.

To publish a book takes longer period, energies and a lot of processes for editing, designing, layout, illustration and proof- reading. After this rigorous endeavor the pirates produce exact copies and circulate them favorably in markets with genuine books, and have large profits by selling them significantly in lower price than the original publishers’ products, who bear the cost of royalties to author and other over head cost. It is in this regard Kolawole (2005) opines that pirates take major shares of the publishing industry in Nigeria.

Moreover, large scale photocopying by the students and teaching community, who should have otherwise purchased their original copies, also deprive the authors and publishers of their dues. This form of mass photocopying of books is largely prevalent in Nigeria, especially in and around educational institutions. Students borrow books from libraries and then get them photocopied from the photocopier at the institution. While copyright law permits photocopying of literary works for limited private uses such as research, review or criticism, what happens, many a time is that the entire book is photocopied including the cover pages. At the end of this, the students and the photocopy operators’ gain, but the publishers lose huge in all respects. Unfortunately, the institutions turn a blind eye to this. The illegal photocopying leads to low sales of the original materials.

Furthermore, in most cases, pirated books do not have the quality of original work. Therefore, the system of education would suffer if students rely on fake copies of text books for their educational pursuits. The overall effect of these discourages scholarship and creativity and hinders cultural and intellectual development in the society. Piracy is a problem in the Nigeria despites Nigeria’s active participation in the international conventions.

Copyright was introduced and entrenched in the Nigeria’s Copyright Act; one of the most salutary provisions of the Act is the conferment of the body with the responsibility of enforcing copyright laws. The Nigerian Copyright Commission was established to shoulder the

responsibility of protecting all matters related to copyright in the country.

The law gives protection to copyright owners with stiff penalties in the event of violation, yet publishers cry out over the increase in book piracy in the country despite the existence of the decree supported the establishment of the Nigerian Copyright Commission. Achebiri (1995) observes that the whole issue of book piracy has become a source of great concern as it has assumed an alarming rate throughout the country. This assertion has been supported by the International Intellectual Property Alliance (2006), reports that piracy level in Nigeria is nearly 85% for all sections with estimate among the highest in the world. It is based on the aforementioned situations that this study is undertaken to investigate the matter.

1.1.1 Concept of Copyright

Copyright is a legal term describing rights given to creators for their literary and artistic work ( Mahmood and Ilyas). It ordinarily means that the creator of the work alone has the right to make copies of his work for himself and others. Copyright piracy is a phenomenon that is prevalent worldwide. It means unauthorized reproduction, importing or distribution either of the whole or a substantial part of works protected by copyright. The author of a copyrighted work, being the owner, enjoys rights to produce, to publish, to adopt, to translate and to perform it in public. The owner can also sell, assign, license or bequeath the copyright to another party if he wishes so (Nair, etal 1999). If any person, other than the copyright owner or his authorized party undertakes any of the above mentioned activities with respect to a copyrighted product, it amounts to infringement of the copyright. Copyright piracy, like any other theft, is a loss to the owners of the property. Besides economic loss, piracy also adversely affects the creative potential of a society as it denies creative people such as authors and artists of their legitimate dues.

Therefore, copyright refers to a body of exclusive rights to protect the works of authors and other creative persons against copying or unauthorized public performance, which may be literary, musical, dramatic, motion, picture, audio-visual work, sound recordings and computer programs. Copyright does not protect every work of authorship, to qualify for copyright protection; a work must be both fixed and original. The law considers a work to be fixed if it is recorded in some permanent format. To be original, the work must not be copied from previously existing material and must display at least a reasonable amount of creativity (Schechter, 2009). In addition, copyright only protects the words, notes, or images that the creator has used. It does not protect any idea or concepts revealed by the work.

1.1.2 Historical Background to Copyright

Almost every nation has some form of copyright protection laws for its authors and artists. Several important international treaties also deal with copyright law among the nations. The invention of printing press predates the copyright law. However, with the invention of printing press in the mid 15th century, books had become cheaper and more widely available in Europe. To reduce the risk of rivals printing of politically dangerous books, the royal government of England granted a publishing monopoly to group of publishers, all of whom belonged to a guild called the stationers company (Schechter, 2009). The publishers published materials that were not offensive to the royal authority. When ever, a member of the guild obtained the right to publish a book all other members would refrain from publishing the same book. This private arrangement was an early form of copyright. It was replaced in 1710 when the British parliament passed a law called the Statute of Anne, named for Queen Anne, who reigned in England from 1702 to 1714 (Schechter, 2009). This was the first real copyright law in modern history. The law granted authors the exclusive right to authorize the printing or reprinting of books for a limited number of years.

The Constitutional Convention Delegates who drafted the U.S constitution in1787 were familiar with the statute of Anne and with the importance of copyright as an incentive for authors to create new works. Article 1, Section 8 of that constitution gave the Congress of the United State the power to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, exclusive right to their respective writings and discoveries (Beatrice, 2011). This provision gave the federal government the power to enact copyright and patent statutes. The Congress adopted the first U.S copyright law in 1790. The copyright law underwent series of amendment, often in reaction to new inventions.

1.1.3 History of Copyright in Nigeria

Copyright law is a universal concept and a form of protection for ideas created which is provided by the laws of any sovereign state. According to Agudu (1992) the copyright law in Nigeria dated back to the colonial era, with its source in the copyright Act of 1911. Nigeria continued to apply the English Act of 1911 until 1970. In agreement with this, Ocheme (2000) remarks that despite Nigerians attainment of self rule in 1960, the British statutory law that is the copyright Act of 1911, the common law and the doctrines of equity of England remained the major sources of copyright law in Nigeria.

In 1970, the English Act of 1911 was repealed by the Nigerian copyright Decree. This seems to have put to rest the ghost of the 1911 Act which, despite being abolished in England since 1956, had continued to strife in Nigeria for over half a century. This signifies that Nigerian government hardly understood the essence of the copyright law and therefore was careless about it. It was generally recognized that this old law contained a number of inadequacies. Odunowo (2002) opines that the law recognizes the rights of copyright owners but failed to provide adequate remedies to the violation of those rights.

1.1.4 Nigerian Copyright Commission

Nigerian Copyright Commission was established in 1989 by the Copyright Council with a mandate to oversee copyright administration. Adewopo (2006) maintains that the Nigerian

Laws of the Federation of Nigeria, 1990) in 1998 and inaugurated in1989 as a Federal Government parastatal with the sole mandate for the administration of all matters pertaining to copyright in Nigeria, and latter upgraded to the status of a Commission. The Copyright Act was amended twice by the Copyright (Amendment Decree No 98) of 1992 and the Copyright (Amendment Decree No. 42) of 1999. It was established with a statutory mandate to administer, protect promote and regulate copyright in Nigeria (Adoke, 2012). The statutory amendments enable the commission to appoint copyright inspectors with powers of investigation, arrest, seizure and prosecution in the enforcement of the copyright law. The Nigerian Copyright Commission is the statutory body charged with the administration of all copyright matters in Nigeria. The commission runs seminars and workshops to educate the general public and authors on copyright. Above all, the Constitution of the Federal Republic of Nigeria 1999, Part I, item 13 of its second schedule classifies copyright on the exclusive legislative powers of the federation.

1.1.5 Rationale for the Creation of the Nigerian Copyright Commission

Creativity is a key stone of progress and development, it is generally considered proper that authors and other artists should have a reasonable return for their work. It is in this regard,

Ocheme (2000) opines that no property can be compared with man’s creative production. This signifies that a man’s brain work should be protected more than all other tangible property, to enable him enjoy the benefits of his creativity. Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create. No nation can develop where creativity and intellectual property are susceptible to damage and destruction instead of being protected and rewarded.

Nigerian Copyright Commission was not established in order to restrict information. It was created to ensure common justice for individuals and to encourage authors for the general good of the society, without authors there could be no publishing for education and social enrichment, and without the protection of copyright, the world would never have had the explosion of knowledge that has come through the books. The universal declaration of human rights from which many modern copyright statutes derive their inspiration state that everyone has the right to the protection of the moral and material interest resulting from any scientific, literary, or artistic production of which he is the author (Ibrahim,2002). The law of the copyrights rest on every clear principle that anyone who by his skills and labor creates an original of whatever character shall, for a limited period enjoy an exclusive right to copy the work. No one else may for a season reaps what the copyright owner have sown (Kelvin & Gillian, 2002). It is based on this that the Nigerian Copyright Commission was established to encourage creative people to produce works of culture and to provide incentive for the dissemination of these works.

Therefore, the rationale for the Nigerian Copyright Commission is to encourage authors to invest effort in creating new works of arts and literature. Dauda (2000) observes that the Commission also aims at protecting the authors’ idea from abuse and illegal exploitation by others. Copyright is the right of authors to control the reproduction of his intellectual creation. It confers on the author the authority to control his creation after disclosure and prevents others from reproducing his personal expression without his consent. In this sense, copyright is usually regarded as property of unique kind. Odonowo 2002 maintains that such rights have become components of existing legal culture of most countries including Nigeria, enforceable by courts and respected by society. This is because intellectual creativity in whatever form is an essential pre-requisite for all social, economic and cultural development of a nation. A complementary objective of Copyright Commission is to foster the growth of learning and culture for the public good. Ibrahim (2002) remarks that “a creative work is a product of mind and accordingly is regarded as a manifestation of the authors’ personality as well as his economic benefits. The authors’ right over his work is, therefore, viewed as entirely personal.” He further states that, the purpose of the copyright systems is the protection of the authors’ interest and creation of a favorable climate for the actualization of their creation potentials. It can therefore, be said that the success of any copyright system depends also on its ability to provide for authors needed incentive by way of adequate remuneration.

It seems quite obvious that Nigerian Copyright Commission is mainly designed to protect an author, an artist and all creative productions from the unlawful reproduction of his works. The creative writer has full and unfettered protection of that which he had created and should be able to reap full benefit there from (Agudu, 1992). Therefore, the copyright system offers and gives the needed protection so that the creators may use their intellect for the betterment of our nation. Perhaps the most important aspect of a copyright is the economic right which enables the creator to earn a living from his work. Ocheme (2000) posits that the justification for copyright commission is primarily anchored on the necessity to encourage creative activities locally without much dependence on foreign arts and culture.

1.4 Statement of the Problem

The Nigerian Copyright Commission was established as the sole Government agency responsible for copyright administration in Nigeria, pursuant to the Copyright Act (Cap. C28 Laws of the Federal of Nigeria, 2004). Assein (2008) states that the mandates of the Commission are copyright enforcement; public enlightenment and the regulation of the copyright activities in

Nigeria. The Commission also initiated a scheme called Strategic Action Against Piracy

(STRAP) which intends to combat all forms of piracy. It seems that the mandates of the Nigerian

Copyright Commission as well as the STRAP initiative’s target has not lived up to expectations; because pirated books are everywhere in Nigerian markets.

Adegbola (2004) maintains that “40% to 50% of the publishing business has been taken over by the pirates as a result of the importation of pirated books from far East” This claim has been confirmed by many people in the publishing industry. Obidiegwu (2007) reveals that Longman lost $ 1.5 to $ 2 million, constituting 50% of its potential yearly turnover to book piracy”. This signifies that the activities of pirates have consistently led to the erosion of tremendous percentage of the total earnings of the industry. Invariably if allowed to flourish it will have serious effects on economic development as well as make the publishing industries to collapse. The International Intellectual Property Alliance, (2009) while reporting on copyright protection and enforcement in Nigeria, put the trade loss to book piracy in the year 2004, 2005 and 2006 at $ 4million, $ 6million and $ 8million respectively. This indicates that there is a proportionate increment in the loss rate. Moreover, book piracy is pervasive in Kano state. The Nigerian Copyright Commission stated in the 2006 second quarter of the year’s report that Kano state has highest number of seizures of pirated books across the country. Madueke (2004) remarks that over 300,000 printed flat sheets of titles belonging to various publishing houses and contrivances were seized in Anambra state. Then why has the commission achieved less in combating book piracy? The study will provide answers to the questions by assessing the contributions of the Nigerian Copyright Commission against book piracy in Kano, Anambra and

Lagos states. These states are selected to represent the respective regions in the country, namely; Northern, Western and Eastern regions, represented by Kano, Lagos and Anambra states respectively. Furthermore, the Nigerian Copyright Commission (2008) survey report on copyright piracy in Nigeria revealed that, the general piracy rate in Nigeria, particularly of books, music and video movies has seriously increased remarkably in Lagos, Port Harcourt, Bauchi, Anambra and Kaduna states.

1.3 Research Questions

This research seeks to provide answers to the following research questions:

1. What are the causes of book piracy in Nigeria?

2. What types of books are being pirated?

3. What measures are taken by the Nigerian Copyright Commission against book piracy in

Nigeria?

4. How effective are the measures taken by the Nigerian Copyright Commission to curb book piracy in Nigeria?

5. What are the effects of book piracy on book business in Nigeria?

1.4 Research Objectives

The specific objectives of this research are:

1. To determine the causes of book piracy in Nigeria.

2. To determine the types of books being pirated.

3. To determine the measures taken by the Nigerian Copyright Commission against book

piracy in Nigeria.

4. To determine how effective are the measures taken by the Nigerian Copyright

Commission to curb book piracy in Nigeria.

5. To determine the effects of book piracy on book business in Nigeria.

1.5 Significance of the Study

The study will be of enormous value towards supporting the publishers with relevant data on ways to prevent the recurrence of book piracy by looking at the avenues of reducing the price of the original books which will enable the public to afford the original copies other than the pirated ones, and this will in turn favors the publishers to sell their book in large quantity and reap the benefit of their labor.

It will also benefit the publishers as they will be encouraged in using security features in the production of books which will prevent pirates from duplicating the original books by providing an image that will help the buyers to differentiate the original books from the pirated ones.

Similarly, the research will also serve as a mechanism for public enlightenment and mobilization by exposing the debilitating impact of book piracy on individual and national interest. Finally, the study will be a useful document for researchers and students studying copyright piracy, publishing, law and library science as it will add to the number of literature in their research work.

1.6 Scope of the Study

The study covers three selected states in Nigeria. These are: Kano, Anambra and Lagos states and all the publishing companies as well as the NCC offices in the states. The works protected under the copyright Act in Nigeria includes literary works, musical works, artistic works, sound recordings, broad casts, live performances and expressions of folklore. The subject of the study comprise of the managers of the publishing companies and the NCC Copyright Inspectors in the selected states.

1.7 Limitation of the Study

The assessment of this study is limited to book piracy within the confine of Kano, Lagos and Anambra state. These states were selected to represent the respective regions in the country, namely; Northern, Western and Eastern regions, represented by Kano, Lagos and Anambra states respectively. This selection is based on the fact that the selected states are the centers of book trade in the country and also the breaking point of book piracy in Nigeria as Kolawole (2008) confirms that, major hotspots of book piracy in Nigeria are: Alaba, Onitsha, Ajegule and Kano state. This also support the Nigerian Copyright Commission (2008) survey report on copyright piracy in Nigeria revealed that, the general piracy rate in Nigeria, particularly of books, music and video movies has seriously increased remarkably in Lagos, Port Harcourt, Bauchi, Anambra and Kaduna states

1.8 Operational Definition of Terms

The following terms are defined as they are used in the study:

Nigerian Copyright Commission: The government agency responsible for the protection of copyright in Nigeria.

Book piracy: Copying, selling, distributing or translating of protected books without the permission of the right holder.

Controlling: It is the process of regulating the recurrence of book piracy from the unscrupulous publishers.

Assessment: Examining the piracy situation in Nigeria based on the findings of the study.

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