Copyright infringement is rampant in Nigeria as it is in several other countries of the world. BAYO ALADE and TADE MAKINDE report that while owners of intellectual property in other countries get compensated eventually, those in Nigeria still get next to nothing despite existing laws.
RECENTLY, the ‘Change Begins with Me’ campaign of the Muhammadu Buhari administration was almost overshadowed by controversy over the ownership of the original concept of the material which came to be used for the campaign targeted at giving Nigerians a new orientation about certain behaviours which put the country in bad light.
A version of the controversy was that one Akin Fadeyi, a creative artiste and former Head of Communications at Airtel Nigeria intimated Alhaji Lai Mohammed, Minister of information and Culture with the concept late last year. The minster was said to have initially declined the proposal wholesale but asked for a fine-tuning of the concept. “They submitted the final version of their proposal to him after ending each episode with ‘Change Begins with Me’ as he directed,” one of Fadeyi’s associates was quoted to have said adding that “He (thev minister) just suddenly disappeared since then and made it very difficult for Mr Fadeyi to reach him for updates about the proposal,” he alleged.
Months later, the ‘Change Begins with Me’ campaign began and according to Fadeyi’s associate, its video skits bore striking similarities with Fadeyi’s ‘Not In My Country’ concept.
“The minister just sort of made a little change here, a little change there, and ran to town with the concept,” he said even as the controversy continued with both side is threatening law suits.
As if that was not enough, President Buhari’s speech at the launch of the campaign came under scrutiny as it was said to have contained a rehash of President Barack Obama’s victory speech of November 4, 2008. President Buhari has reportedly sacked the unidentified writer of the speech.
All these put together bring to fore the issue of copyright infringement on intellectual property and what the law says about it.
The provision of the Copyright Act of the Laws of the Federation of Nigeria 1990, chapter 68 is entitled: “An Act to make provisions for the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast, and other ancillary matters.”
Part 1, sub section 1 of the Act says: Subject to this section, the following shall be eligible for copyright- (a) literary works;(b) musical works;(c) artistic works; (d) cinematograph works; (e) sound recording; and (f) broadcasts.
Section 14 sub section 1 of the Act also states how a copyright infringement could be carried out before the person concerned is found liable. It states: Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright-
(a) does, or cause any other person to do an act, the doing of which is controlled by copyright;
(b) imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph (a) of this subsection;
(c) exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;
(d) distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a)of this subsection;
(e) makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;
(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;
(g) performs or cause to be performed for the purposes of trade or business or as supporting facility to a trade or business or as supporting facility to a trade or business, any work in which copyright subsists.
Suffice to say that chapter 15 of the acts deals with how the copyright owner could seek for damages and part of it is that “the court, in assessing damages for the infringement, shall have power to award such additional damages by virtue of this subsection as the court may consider appropriate in the circumstances.”
On the Nigerian entertaqinment scene examples abound of copyright infringements. There was the case of ‘Osondi, Onwendi’, a song originally made popular by the Late Osita Osadebe in the 60s. New group, MC Loph, remade the hit song which also became a hit. Osadebe’s estate fought back as his children sued MC Loph. Attempts were made to settle the case out of court, but it died a natural death when Loph was killed in a ghastly car accident some years ago. Obviously, the musician did not seek authorisation from the Estate of the late musician.
In the case brought by Late IK Dairo against Juju musician, Dele Taiwo, over the unauthorised use of “Mosoriire o’ in the 90s, the court, in awarding damages, ordered Taiwo to pay into Dairo’s account proceeds from sales of all the albums he would release for 20 years to Dairo. In a way, the court had sentenced Taiwo to 20 years of servitude as the royalties due him would go to Dairo. Dele stopped releasing albums to escape working and not getting paid.
On the international scene
In 1988, the duo of Rob Pliatus and Fab Morvan, a.k.a Milli Vanilli, were cleaners at a record label. Most times, song producers or label bosses don’t have the time to listen to all demos that got to their tables, so they throw most away. Going through one of the many trash cans that were always filled with unheard demo tapes one day, one of duo saw the one that belonged to a group Milli Vanilli. They liked the songs in the demo and made concerted efforts to convince the label boss to listen to ‘their’ demo. The man did and he signed the Germans on. The album was an instant success. “Girl You Know Is True” and “All Or Nothing” won awards. The two cleaners became millionaires within months and were made brand ambassadors by several conglomerates.
Upon investigation, it was found that Fab and Rob had used, without authorisation, all the songs of the authentic American owners. They were immediately stripped of their several honours, including the Grammies and Platinums, Gold plaques. From hero, they became villains overnight. On April 2, 1988, Rob was found dead in a hotel in Frankfort from drug overdose.
Nigerian writers are also not immune from the menace of copyright infringement. Dr Wale Okediran, former House of Reps member, writer and former president of Association of Nigerian Authors, bemoaned what writers go through at the hands of those who steal their intellectual property.
Speaking with Sunday Tribune, Dr Okediran said copyright infringement is a big problem for writers, just as he enumerated three major areas which engenders copyright infringement. He named them as economic factor in which people prefer cheap books produced by pirates who find it easy to simply photocopy the original copies and reproduce for the market.
He also mentioned disloyal staff of publishers who steal the plates of the published works and take them away to reproduce their own copies for sale. The third one, he said, has to do with publishers who could not meet the demands of customers thus giving pirates the opportunity to pirate the books.
“One should commend the efforts of the Nigerian Copyrights Commission, but nevertheless, the laws establishing the NCC should be revised and the punishment should be more stringent,” he told Sunday Tribune, adding that a penalty of between N400,000 and N600,000 for offenders would not deter others from infringing on the rights to intellectual property of others.
Speaking on specific cases, Dr, Okediran mentioned the case of the 50th anniversary of the publication of Chinua Achebe’s Arrow of God when only very few copies of the book could be found but some pirates called from Kano and Onitsha promising to supply as many copies of the book as needed.
“We were told that since the author of the book was no more, they were free to reproduce the book for their own personal gains. That was their thinking, but that is very bad. Many writers cannot go to court. In fact publishers would prefer to settle out of court; that is the sad part of it.
“In other parts of the world, yes, writers can take unauthorised publishers of their works to court. There was the case of Chinua Achebe and Penguin publishers but the publishers settled out of court. In Nigeria you hardly have such a case, writers don’t get any compensation,” he said.
Speaking with Sunday Tribune on the sanctity of copyright law, Mr Gbenga Makinde, a legal practitioner said evidence of infraction is very vital as disputes could arise over the question of actual infringement of copyright.
“The copyright holder is the work’s creator. Holders routinely invoke legal measures to prevent, and penalize copyright infringement. If a work is infringed, and claim to copyright is disputed, i.e. in plagiarism case, evidence helps to prove claims and can be provided by Nigerian Copyright Commission (NCC) registration service that provides verifiable proof of the date and content of work.” he stated.
Mr Makinde of Olujimi & Akeredolu Law Firm in Ibadan said further that the world’s first copyright law was enacted in England in the 16th century to secure the rights of authors and inventors. As books became easier, faster, and cheaper to produce and distribute, especially in Europe and America, it became clear that enhanced protection of authors and uniform international copyright standards were required.
Mr Akinjide Sadiq, a legal practitioner while speaking on the issue with Sunday Tribune said in the area of musical works, the lifetime of any creative work is 70 years, whether the original owner is alive or dead. What that means is that “nobody has the right to use, in any form, the intellectual property (IP) of anyone without authorisation, mostly written.”
“There are various elements that must be considered for an infringement to occur,” he said adding that “the infringer must have had access to the copyrighted work and the copyright holder must have a valid copyright to his work. There are others, but these two are required. The Federal High Court can order that illegal works be impounded and the infringer can go to jail, but copyright infringement disputes can be settled through direct negotiation, a notice and take-down process. If all fails, then it was to be a litigation in civil court. Copyright protection is automatic under international law, but in the event that work is infringed, evidence may be required to support the claim.”
To buttress Mr Sadeeq’s statement, Makinde said supporting evidence falls into two categories: Evolution of ideas and Watermarking. The first is actual proof of the progression of the work. These include synopsis, rough recordings, early drafts, sketches, etc. All these can be used as evidence on how the work has progressed over time, rather than being copied from elsewhere. Although it is possible to fake such evidence, it is often time-consuming to do so, so it can be fairly good evidence to demonstrate that one has created the work from scratch over a period of time.
Watermarking is evidence inserted into finished documents that will identify the author in some way, such as deliberate mistakes, or hidden data that can be read using special applications.