Nigeria enacts Copyright Act, 2022 to repeal the Copyright Act, 2004
The President of Nigeria, Muhammadu Buhari, signed the Copyright Bill, 2022 into law on 17 March 2023. This Act, that will presumably be known as the Copyright Act of 2023, repeals the Copyright Act of 2004.
A statement issued by the Office of the Presidency reads as follows:
“The principal objectives of the new law, as outlined in section 1 are to: protect the rights of authors and ensure just rewards and recognition for their intellectual efforts; provide adequate limitations and exceptions to guarantee access to creative works; facilitate Nigeria’s compliance with obligations arising from relevant international treaties and conventions; and enhance the capacity of the Nigerian Copyright Commission for effective regulation, administration, and enforcement.”
The Act seeks to find alignment with important international treaties that Nigeria acceded to following the enactment of the 2004 Copyright Act.
Some of the noteworthy provisions in the new Act include:
- New ‘digital rights’ of distribution, communication to the public and making available by wire or wireless means, to align with the WIPO Internet Treaties, namely the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
- Legal protection of technological protection measures, or “TPMs”, which are applied by rights holders to protect digital works from unauthorized use and access, as required by WCT and WPPT.
- A new exception to cater for the production and international transfer of specially adapted books for people with blindness or visual impairments, to align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind or Visually-Impaired.
- New economic and moral rights for performers to find alignment with the Beijing Treaty on Audiovisual Performances.
- An open “fair dealing” exemption from copyright that, very much like the “fair use” clause in United States law, extends the fair dealing exceptions in the repealed Act with a non-inclusive list of permissible purposes. The “four factor test” from the US “fair use” clause has been adopted to assist Nigerian courts in determining whether a given unauthorized use of a work protected by copyright would qualify as “fair dealing”. Unlike the US “fair use” clause, there are no consumptive uses that are listed as permissible purposes.
- New legal remedies are introduced to assist rights holders with the enforcement of their rights in the online environment, some of which may be relied on to compel Internet Service Providers to block user access to infringing content. This is an important development in the fight against content piracy, which has been a major problem since the dawn of the digital age, especially for Nigeria’s music and film and television production industries.
- The Act also protects expressions of folklore, which include folklore, poetry, folk songs and dances, folk arts, drawings, carvings, sculptures, costumes and other works or imitations thereof. Any party who wishes to make commercial use of expressions of folklore would first need to obtain permission from the relevant indigenous community concerned, and/or the Nigerian Copyright Commission. A failure to do so could expose the user to criminal sanctions.
Potentially problematic provisions in the Act include:
- A “contract override” which renders ineffective any contractual term which purports to restrict or prevent the doing of an act permitted under any of the copyright exceptions. This provision may pose practical difficulties for licensing and out-of-court settlement agreements in some infringement cases.
- The Nigerian Copyright Commission (NCC) is granted sweeping new powers under the Act, including to right to authorize the use of a work by any person for the purpose of rectifying the abuse of a dominant market position or to promote the public interest.
- A copyright levy is introduced which will be payable on all materials used or capable of being used to infringe copyright in a work. This includes any object, equipment, machine, or other device, including electronic or digital systems. The levy is to be paid into a fund that would be administered by the NCC and disbursed to approved collective management organizations or other representatives of copyright owners.
- The NCC is also empowered, with Ministerial consent, to make regulations under the Act, specifying conditions necessary for the operation of any business involving the production, publication, public exhibition, distribution, sale, hiring, rental, storage, warehousing or any other dealings in works protected by copyright.
- We will keep a watch on how the NCC will exercise its new statutory powers and how the copyright levy will be applied in practice.