Intellectual property (IP) protects creativity, inventions and innovations by vesting exclusive rights on the creator or inventor of a work. Copyright, as a form of IP protects literaryworks, musical works, artistic works, as well as sound recordings, broadcasts and cinematograph films. Where a work falls under the category eligible for protection, copyright protection will be granted if the work or its author shares some connection with Nigeria. This is because IP protection is territorial.
One of the following factors will be considered in order to determine if a work or its author has a substantial connection with Nigeria:
- The nationality or domicile of the author;
- Place of publication;
- Connection with the federal or state government, or an international organisation; and
- Nigeria’s obligation under international agreements.
Nationality of the Company
A company like a natural person has the power to hold property- real and tangible. A company is considered to be a non-natural person under the law. The law confers on a company some of the rights and responsibilities which a natural person has, because it is a legal entity. So, just like a natural person, a company can create works eligible for copyright protection.
A company also has a nationality. The nationality of a company is determined by looking to the laws of the country under which it was incorporated. If a company is incorporated in Nigeria, it is deemed to be a Nigerian company. Where a company is not incorporated in Nigeria, it is a foreign company and cannot be referred to as a Nigerian company. Section 54 of the Companies and Allied Matters Act provides that every foreign company incorporated outside Nigeria, that has intention of carrying on business in Nigeria is required to be incorporated in Nigeria. Where a foreign company that intends to carry on business in Nigeria fails to get incorporated in Nigeria, it cannot carry on any business in Nigeria, or exercise any powers that may be exercised by a company registered in Nigeria. It is also precluded from having a place of business in Nigeria. All acts by an unregistered foreign company shall be void. Accordingly, by the provisions of section 2(1) (b) of the Copyright Act,copyright will only be extended to the eligible works of a company if the company is incorporated by or under the laws of Nigeria.
Where a foreign company is not incorporated in Nigeria and is not carrying on business in Nigeria, its works may be protected by copyright by virtue of the provisions of section 5 of the copyright Act. Section 5 of the Copyright Act extends copyright protection to foreign works on the basis of the existence of an international agreement. By virtue of this section, copyright will be conferred on eligible works of a foreign company, where such company is established by or under the laws of a country that is a party to an obligation under a treaty (international agreement) to which Nigeria is also a party. Under some treaties that govern IP rights, a common provision is usually that state parties to the treaty shall extend IP protections to nationals or companies of other contracting states. For example, Nigeria and Ghana are both parties to the Berne Convention for the Protection of Literary and Artistic Works. This means Nigeria will protect foreign works by a Ghanaian company because of its obligations under the Berne Convention. The Berne Convention requires member states to protect the works of nationals or companies of other countries that are also parties to the treaty.
Section 56 of the Companies and Allied Matters Act lists a few foreign companies that may be exempted from incorporation under Nigerian law. They include: foreign companies invited to execute any specified individual project, by the federal government; companies that are in Nigeria for the execution of a specific project for a donor country or an international organisation; foreign-government owned companies that are in Nigeria solely for the promotion of export activities; and engineering consultants and technical experts engaged by any of the governments of the federation or their agencies for a specialist project. Whether or not an eligible work created by these category of foreign companies will be conferred with copyright will be determined by a number of considerations such as:
- Whether the work was jointly created or done with a company incorporated under the Nigerian Law;
- Whether the work was jointly created or done with the Nigerian government?
- Whether the work was jointly done by the foreign company and an international organisation?
- Whether the work was jointly done with a Nigerian citizen or a person domiciled in Nigeria?
Where a foreign company is exempted from registration under the Companies and Allied Matters Act, it may claim copyright by virtue of section 3 of the Copyright Act. Section 3 of the Copyright Act vests copyright in works that are first published in Nigeria, and in the case of a sound recording, if it is first made in Nigeria. Copyright under this section can only be claimed, where the company is not incorporated under the Nigerian law.
Where copyright is conferred on an eligible work, it means the author of the work may exercise rights of a copyright owner and prohibit others from infringing his rights.