Conclusions

The first indigenous Copyright Act of Nigeria of 1970 had no provisions for criminal infringement of Copyright. Criminal infringement was then provided for under the general criminal laws of Nigeria. ⁴⁸⁰ It was then an offence for any person to knowingly do any of the following Acts:⁴⁸¹

(a) make for sale or hire any infringing copy of a Copyright work;

(b) sell or let for hire any infringing copy of a Copyright work;

(c) distribute infringing copies of a Copyright work for the purposes of

trade or to such extent to affect prejudicially the owner of the Copyright; or by way of trade, exhibit in public, any infringing

copy of a Copyright work.

The Codes also prohibit any person to make or posses any plate for the purposes of making infringing copies of a Copyright work, or to knowingly cause any such work to be performed in public without the consent of the owner of the Copyright.⁴⁸² The current Copyright Act of Nigeria expressly repealed the provisions of the Criminal Code Act relating to Criminal infringement and incorporated a replica of these provisions into the Copyright Act.⁴⁸³ While doing so, the Act does not make any mention of similar provisions in the Penal Code thereby leaving everyone in doubt as to whether these provisions of the Penal Code are still operating in competition with the Copyright Act.

480Sections 491-493 of the Criminal Code (Cap 77), Laws of the Federation of Nigeria, 1990 & sections 426- 427 Penal Code (Cap P3), Laws of the Federation of Nigeria, 2004.

481 Ibid

482 Ibid.

483 C.R.A.N. Section 52.

125 It is submitted that this omission cannot by any stretch of imagination be said to be intentional, or that the drafters of the Copyright Act intended to allow the parallel operation of these sections of the Penal Code in Northern Nigeria while prohibiting same in Southern Nigeria. It is further submitted that this omission is an oversight. It is therefore suggested that these provisions of the Panel Code under consideration be expressly repealed via immediate amendment of the Copyright Act of Nigeria. This will make for uniformity in the application of the Copyright Act Nationwide.

The Nigerian Act provides that any person who: ⁴⁸⁴

(a) makes or causes to be made for sale, hire, or for the purposes of trade or business any infringing copy of a work in which Copyright subsists, or (b) imports or causes to be imported into Nigeria a copy of any work which if it had been made in Nigeria would be an infringing copy; or

(c) makes, causes to be made, or has in his possession, any plate, master tape, machine, equipment or contrivances for the purposes of making any infringing copy of any such work;

shall, unless he proves to the satisfaction of the Court that he did not know and had no reason to believe that any such copy was an infringing copy of any such work, or that such plate, master tape, equipment or contrivance was not for the purpose of making infringing copies of any such work, be guilty of an offence under this Act and shall be liable on conviction to a fine of an amount not exceeding N1,000 for every copy dealt with in contravention of this section or to a term of imprisonment not exceeding five years, or to both such fine and imprisonment.

The Act further provides that⁴⁸⁵ any person who-

(a) sells or lets for hire or for the purposes of trade or business, exposes or offers for sale or hire any infringing copy of any work in which Copyright subsists; or

(b) distributes for the purposes of trade or business any infringing copy of any such work; or

(c) has in his possession, sells, lets for hire or distribution for the purposes of trade or business or exposes or offers for sale or hire any

484 Ibid. Section 20 (1) (a)-(c); N. C. C. v Madu (Unreported Suit No. FHC/L/40^c/2015, judgment delivered on

14^th Feb., 2017, by Oguntoyinbo, J. at Federal High Court, Lagos Division).

485 C.R.A.N. Section 20 (2).

126 copy of a work which if it had been made in Nigeria would be an

infringing copy;

(d) has in his possession other than for his private or domestic use, any infringing copy of any such work-

shall unless he proves to the satisfaction of the Court that he did not know and had no reason to believe that any such copy was an infringing copy of any such work, be guilty of an offence under this Act and shall be liable on conviction to a fine of N100 for every copy dealt with in contravention of this section, or to a term of imprisonment not exceeding two years or in the case of an individual, to both such fine and imprisonment.

The Act also prohibits a person who without the consent of the owner of the Copyright, distributes in public for commercial purposes, copies of the work by way of rental, lease, hire, loan or similar arrangement, and renders him or her liable upon conviction to a fine of N100 for every copy dealt with or imprisonment for six months or to both such fine and imprisonment. ⁴⁸⁶ It is a good defence to the offences provided in this section of the Nigerian Act under discussion that the accused person never knew and had no reason to believe that the copy concerned was an infringing copy of any such work, or that such plate master tape, machine, equipment or contrivance was not for the purposes of making infringing copies of such work. In Ubi Bassey Eno v N.C. C. ⁴⁸⁷ the Appellant who was convicted by the Court of first instance for being in possession of smart cards and other equipment for illegal rebroadcasting of signals argued on appeal that since he lawfully obtained the smart card and equipment, their possession cannot be said to be unlawful. In interpreting the provision of the Act under discussion, ⁴⁸⁸ the Court of Appeal held that the section makes it an offence to possess the equipment for the purpose of making infringing copies.The Court went ahead and concluded that the equipment in the present case were in fact used for illegal rebroadcasting, which is a reproduction of a broadcast and since it is illegal, each rebroadcast is an infringing copy.⁴⁸⁹ Similarly, in Nigerian Copyright Commission v Nwankwo,⁴⁹⁰ the accused person

486 Ibid. Subsection (3).

487 6 I.P.L.R. p.93.

488 Copyright Act, 1988, section 18 (1) (c), now C.R.A.N. Section 20 (1) (c).

489 Ibid.

127 was sentenced to a fine of one hundred naira for each copy of the five hundred and four infringed copies of DVD/CD possessed and presented.

It is worthy of note that as with the other criminal trials, each of the elements of the offences provided under this section must be proved beyond reasonable doubt. ⁴⁹¹ It is not sufficient to show that the accused person had done wrong. Infringing actions must be linked with the particular Copyright work and related to a right that is preserved thereto.⁴⁹² For the accused person to succeed on the plea that he did not know and had no reason to believe that the copy he dealt with was an infringing one, it is not enough for him to merely assert this plea, rather, the facts must line up with the plea. The facts of the case may also compel the Court to draw an inference that the accused person did not know or had reason to believe that the work found on him was infringing. In Federal Republic of Nigeria v Asika, ⁴⁹³ the accused person who was a bookseller in the city of Kano was charged with the offence of unlawfully offering for sale infringing copies of Copyright work contrary to and punishable under the Copyright Act.⁴⁹⁴ The publisher‟s representative discovered pirated copies of his principal in the accused person‟s shop and then purchased a copy. He came back a month later and purchased six more copies of the work and was issued with receipt by the accused person which was admitted by the latter under cross examination. He however told the police that he bought the pirated copies from Kenneth and gave his address, though Kenneth was never found. He maintained in his defence that if he knew that the books were pirated books; he would not have sold them to a representative of the publisher whom he foreknew in that capacity before the transaction. The Court found that the physical elements of the offence were proved. It however held that it was not proved beyond reasonable doubt as required in criminal cases

490 Unreported Suit No. FHC/ABJ/CR/14/2010 quoted by J. Asein, Nigerian Copyright Law & Practice, Op.Cit.

p.227.

491 Eno v Nigeria Copyright Commission 6 I.P.L.R. p.93; Compact Disc Technologies Ltd. & 2 Ors. v Musical Copyright Society of Nigeria G.T.E. 6 I.P.L.R. p.199.

492 Musa v Le Maitre [1987] F.S.R. p.272.

493 Suit No. FHC/K/2CR/92, quoted by J. Asein, Nigerian Copyright Law & Practice, Op. Cit. p.230.

494 Nigerian Copyright Act, 1988, section 18 (2) now C.R.AN. Section 20 (2) (g).

128 that the accused person knew that the books he was selling or had in possession were pirated books or had been printed by unauthorized persons. It has also held in a similar case that: ⁴⁹⁵

there is need for the prosecution to prove against an accused person charged under section 20 of the Act that (i) Copyright subsisted in the work; (ii) the article in respect of which the charge was brought was in the possession of the accused person by way of trade; (iii) the article was an infringing copy; and (iv) the accused person had reason to believe that the article was an infringing copy.

It is apposite to state at this juncture that criminal infringement of Copyright is provided for by the Indian Act. The Act expressly provides that: ⁴⁹⁶

any person who knowingly infringes or abets the infringement of the Copyright in a work; or any other right conferred by this Act except the rights conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two Lakh rupees; provided that where the infringement has not been made for gain in the course of trade or business, the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than six months or a fine less than fifty rupees.

This Act also provides that any person who knowingly makes or has in his possession any plate for the purpose of making infringing copies of any work in which Copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.⁴⁹⁷ The Act enhanced the penalty on second and subsequent convictions.⁴⁹⁸ It thus provides that whoever that has already been convicted of an offence under section 63 and is again convicted of any of such offences shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one Lakh rupees but which may extend to two Lakh rupees.⁴⁹⁹ The Act also prohibits the unauthorized use of

495 Musa v Le Maitre supra. p.272.

496 C.R.A.I.Section 63.

497 Ibid. Section 63.

498 Ibid. Section 63A

499 Ibid.

129 computer programme in the same manner and circumstances stated under the Act discussed above.⁵⁰⁰

The English Act provides for criminal infringement of Copyright almost in the same manner as the Nigerian Act,⁵⁰¹ save that the English Act punishes a person found with contrivances for making infringing copies of works on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding fifty thousand pounds or both; or on conviction on indictment to a fine or imprisonment for a term not exceeding two years or both.⁵⁰²

It must be pointed out that one striking similarity between the Nigerian, Indian and English Acts is that knowledge is of essence in the commission of the offences under the sections embodying criminal liability. Moreover, the infringement must have occurred in the course of business, though the English and Indian Acts further provide that the accused is liable even though the breach occurred not in the course of business; or for gain in the course of trade or business, or where the infringement has not been made for gain in the course of trade or business.

It must be pointed out that where criminal infringement is committed by a body corporate in the jurisdictions under consideration, the body corporate and every person who is in charge of it at the time of the offence was committed would be held liable for the offence so long as the offence was committed with the knowledge of that person.⁵⁰³ Thus, it must be proved that the offence was committed with the consent or connivance of any of the officers of the body corporate. However, nothing in the English Act shall render any such person or officer of the body corporate liable to any punishment if he proves that the offence was committed without

500 Ibid. Section 63B.

501 C.D.P.A. Section 107.

502 Ibid. subsection (4A).

503 C.R.A.N. Section 22 (1); C.D.P.A. Section 110; C.R.A.I. Section 69.

130 his knowledge or that he exercised due diligence to prevent the commission of such offence.⁵⁰⁴

It submitted that the provisions of the Acts considered above are adequate and Copyright friendly. It is however disappointing that the U.S. Copyright Act does not contain elaborate provision on criminal infringement of Copyright. It merely provides that: ⁵⁰⁵

any person who willfully infringes Copyright shall be punished as provided under the Criminal Code of the United States of America, if the infringement was committed-

(a) for purposes of commercial advantages or private financial gain;

(b) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more Copyrighted works, which have a total retail value of more than

$1,000; or

(c) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if the person knew or should have known that the work was intended for commercial distribution.

The Code went ahead to prescribe various terms of imprisonment for such offenders.⁵⁰⁶ It further criminalizes unauthorized fixation and trafficking in sound recordings and music videos of live musical performances; and unauthorized recording of motion pictures in a motion picture exhibition facility.⁵⁰⁷ Thus, the provisions of the U.S. Copyright Act regarding criminal infringement are duplications of the provisions of the U.S. Criminal Code,^.508 This means that criminal infringement of Copyright in the United States is regulated by the two Acts abovementioned.

It is submitted that this situation is bound to generate confusions as it is unclear under which of the two statutes a suspect/infringer should be charged. It is therefore suggested that the

504 C.D.P.A. Section 110.

505 U.S.C. Section 506.

506 Section 2319 (2) Title 18, U.S. Criminal Code.

507 Ibid. subsection (2).

508 Ibid.Section 23 19A & Section 2319B.

131 U.S. Act be urgently amended to expunge from the Criminal Code, the powers and authority to regulate Copyright infringement proceedings of any sort.