Imagine Michelle Obama’s book ‘Becoming’ being sold in Lagos traffic; there is really nothing wrong with that right? Until you realise that the book being sold is pirated. Is Michelle Obama’s book protected by copyright in Nigeria? Does she have a right of action against the pirates?
Copyright, like all other forms of intellectual property (IP) rights is territorial. This means the right is conferred specifically under the domestic law of a country and can only be enforced under the law of the country under which it was granted. Copyright protection will only be conferred on a literary work, artistic work, musical work, sound recording, cinematograph film or broadcast (all of which are eligible works) if the work has some connection with Nigeria. A connection will be deemed to exist by virtue of either the nationality or domicile of the author; the place of publication or by reference to an existing obligation under international law.
Nationality/Domicile as a Basis for Copyright
The Nationality of the Author is quite important in the determination of whether copyright exists.
Section 2(1) of the Copyright Act vests copyright in eligible works created by persons who are Nigerians or persons who are domiciled in Nigeria. An eligible work will be protected by copyright if at the time the work was made, the author was a Nigerian citizen. The Nigerian Constitution clearly states those who are considered to be Nigerian citizens.
In the case of a work that was jointly authored or created by two or more persons, if any of the authors or creators of the work is a Nigerian, at the time the work was made, copyright will be conferred on the work. Copyright will be conferred, evenif just one of the authors is a Nigerian. Copyright will also be conferred on an eligible work if at the time the work was made, the author was domiciled in Nigeria, or in the case of a jointly authored work, any of the authors was domiciled in Nigeria.
Domicile is different from mere presence or residence in a country (in this case, Nigeria). It has been defined as ‘the place at which a person is physically present and that the person regards as home, a person’s true, fixed, principal, and permanent home to which that person intends to return and remain even though currently residing elsewhere’.
Domicile is residence coupled with the intention to permanently reside in a place. Mere residence or presence in Nigeria without an intention to permanently reside is not enough for copyright to be vested in the work of a person who is not a Nigerian.
Nigeria’s obligations under international law (particularly multilateral treaties) make it imperative for her to extend copyright protections to non-Nigerians. Section 5(2) of the Copyright Act provides that copyright will be conferred on an eligible work, created by a person who is a citizen of, or domiciled in a country that is party to an obligation in a treaty, to which Nigeria is also party.
This is referred to as the National treatment principle. It requires Nigeria to give to the citizens of other countries, the same treatment it gives to its own citizens; in this case, to give the same level of copyright protection that it gives its own nationals. Copyright protection may therefore be extended to foreign nationals, if their country is a party to a treaty that Nigeria is also party to, which mandates that protection should be extended to the nationals of member states.
For example, The Agreement on Trade-Related Aspects of Intellectual property Rights (TRIPS), being an international agreement between all members of the World Trade Organization (WTO), requires members to comply with the national treatment principle. Nigeria and the United States of America are both members of the WTO. So Nigeria has an obligation to protect works made by US nationals or persons domiciled in the US, just as protection will be extended to works by Nigerians.
Section 3 of the Copyright Act provides that when a work is ineligible for copyright protection in Nigeria, because its author is neither a Nigerian, nor domiciled in Nigeria,it will be protected by copyright, if it is first published in Nigeria. Copyright will be conferred on a literary work, musical work, artistic work or cinematograph film if it is first published in Nigeria.
In the case of a sound recording, it will be protected by copyright, if it was made in Nigeria. Publication means to make a work publicly available. Where a work is published by a publisher registered and carrying on business in Nigeria, it could raise the presumption that the work was first published in Nigeria. A work will not be eligible for copyright protection under section 3 of the Copyright Act if it is a republication.
Works by the federal government, state governments, government agencies, and international organisations such as the United Nations and African Union and their specialisedagencies will be protected by copyright in Nigeria.
Copyright protection is essential because it enables a right holder to exclusively reap the dividend of his/her creativity, while restraining others from dealing with the protected works without authorisation.
Omotunde V Omotunde (2000) LPELR-10194(CA).