FOR THE LOVE OF CHRIST JESUS; THE BEGINNING AND THE END.

LAW OF INTELLECTUAL AND INDUSTRIAL PROPERTY I AND II

Contents
INTELLECTUAL PROPERTY (COPYRIGHT LAW) ......................................................................... 1
GENERAL INTRODUCTION ........................................................................................................... 1
THEORIES UNDERLYING INTELLECTUAL PROPERTY. ......................................................... 2
HISTORICAL DEVELOPMENT ...................................................................................................... 2
ELIGIBLE WORK(S) ........................................................................................................................ 3
NON-ELIGIBLE WORKS ................................................................................................................. 7
IS THERE A STATUTORY DUTY TO KEEP A REGISTER OF WORKS? .................................. 8
COPYRIGHT OWNERSHIP. Section 2, 3, 4 and 5 of the act .......................................................... 8
ACQUISITION OF COPYRIGHT. .................................................................................................... 9
TRANSFER. Section 11 OF THE COPYRIGHT ACT. .................................................................. 11
THE NATURE OF COPYRIGHT. ................................................................................................... 14
MORAL RIGHT. .............................................................................................................................. 15
PERFORMER’S RIGHT. ................................................................................................................. 16
INFRINGEMENT OF COPYRIGHT. .............................................................................................. 17
REMEDIES....................................................................................................................................... 19
FACILITATING INFRINGING ACTIONS. ................................................................................... 22
THE NIGERIAN COPYRIGHT COMMISSION. ........................................................................... 23
INDUSTRIAL PROPERTY LAW. ...................................................................................................... 24
THE LAW OF PATENT. ................................................................................................................. 24
INDUSTRIAL DESIGNS. ................................................................... Error! Bookmark not defined.
THE LAW OF TRADEMARKS. ........................................................ Error! Bookmark not defined.
PASSING OFF..................................................................................... Error! Bookmark not defined.

INTELLECTUAL PROPERTY (COPYRIGHT LAW)

GENERAL INTRODUCTION
Intellectual property law is the body of laws which protect the outcome of
intellectual activity.
May be industrial, scientific, artistic, literary, and so on.
The world thrives on ideas and works of creative individuals.
The law of intellectual property protects:
- Copyright
- Trademarks: Identify the source of a particular good. The link between the proprietor
and the market.
- Patents: Protects new inventions and how things function.
- Industrial designs: protects shape, designs and other aesthetic features.

The law of intellectual property strives to balance two competing interest

1. The protection of creators and their works.
2. Safeguarding the interest of the public to access the works of such creators and gain
knowledge and satisfaction.
Intellectual property has a human right dimension can be seen in the provisions of
Section 27 of the UDHR and Section 16 of the ICESC which seeks to balance the two
competing claims mentioned above.
THEORIES UNDERLYING INTELLECTUAL PROPERTY.
1. Natural law theory: The Lockeian justification. Positing that the state should protect
persons who labour upon commonly held resources. For example, a pharmacist,
exploiting nature and finding a cure for an ailment.
2. Economic theory: Posits that when creators are protected, they are able to recover
investments and cost spent in production.
3. Reward incentive theory: That creators should be rewarded for their services to the
society. So that they would work harder and more people would be encouraged to create
and innovate.
4. Development theory: that intellectual property is a means to an end which is the
realization of public interest and development. Because the protection would encourage
innovation while also rewarding the creators.

COPYRIGHT.
HISTORICAL DEVELOPMENT
Traced to England with the introduction of printing and photocopying.
The crown, (in a bid to prevent the circulation of harmful, heretical, seditious or
offensive materials) monitored and protected the printing of books. The stationers
company (printers) wanted protect the right of authors.
The Statute of Anne enacted in 1709 (during the reign of Queen Anne) was the first
truly copyright statute of England. Under the Act,
- Registration of the book with the stationers company before publication was a condition
precedent for protection.
- Stationers had the power to seize and destroy books that were in contravention of the
provision of the Act.
- Protection lasted for 14 years from the first publication. Another 14 years can be added
if the author is still alive.
Subsequently, various Acts were enacted. However, the Copyright Act of 1911 of
Britain was enacted to fuse all other statutes pertaining to copyright. This Act was
extended to apply to the protectorates of Northern and Southern Nigeria.
The Berne convention and the Berlin revision of the convention removed the
condition of pre-registration of works.
In 1970, the first indigenous copyright act of Nigeria was enacted. It repealed the
1911 act. The 1970 act faced some shortcomings and criticisms. It was eventually
replaced by the 1988 Copyright Act which has undergone some amendments.
Presently, the Copyrights Act 1988 deals with the administration and enforcement
of copyright in Nigeria. It is supplemented by other regulations they include;
- Copyright (Reciprocal Extension) Order, 1972.
- Copyright (Video Rental) regulation 1999,
- Copyright (Optical Disk Plants) regulation 2006 to mention a few.
The 1988 Act improved over the 1970 act and now provides for;
- The Nigerian Copyrights Commission (NCC) which is the copyright licensing body in
Nigeria. Under Section 30.
- Simultaneous institution of civil and criminal suits against an infringer.
- Copyright inspectors with powers of the police.
ELIGIBLE WORK(S)
Meaning works that are worthy of protection.
Section 1 (1) of the Nigerian Copyright Act 1988 provides that works irrespective of
their quality include:
a. Literary.
b. Musical.
c. Artistic work.
d. Cinematograph.
e. Sound recording.
f. Broadcast.
The use of the word “include” in Section 51 of the Act and the phrase; “works similar
to” as it applies to literary works implies that the list is not exhaustive.
Section 51 of the Copyright Act defines the categories.
The 1988 act has introduced computer programs which is a welcome development.
 The provision “irrespective of the quality” prevents the infringer from claiming that the
work is rubbish.
Section 1(2) of the Copyright Act provides that; a literary, musical or artistic work
shall not be eligible unless:
a. Sufficient effort has been expended in making the work to give it an original character.
b. It has been fixed in a definite medium of expression now known or later to be
developed from which it can be perceived or communicated whether directly or with
the aid of a machine.
Before we proceed, please note that copyright does not subsist in ideas, it is the product
of such ideas that it protects. This has been noted Macmillan V. cooper and in the case
of University of London Presss V. university tutorial press ltd.

A. SUFFICIENT EFFORT.
Originality is a fundamental theme of copyright, so also is the requirement of
sufficient effort. The act fails to define “sufficient effort” nor does it illuminate upon
the word; “original”. Due to this lacuna, recourse shall be taken to case law
interpretations.
It is relevant to note that originality in this context DOES NOT refer to novel or
new works that have never been seen or heard of. As nothing is new under the sun. As
such, a work can be original notwithstanding the fact that it is not novel.
A central theme to have in mind (as has been noted in Ladbroke ltd V. Hill) is that the
work must not be copied. It must have originated from the author’s independent skill
and judgment.
In Offery V. Chief S.O. Ola and others, the plaintiff designed a school record
book titled. “New era scheme of work and record book” some years later, he noticed
that the defendants were selling some similar record books. The court found that the
book merely consisted of horizontal and vertical lines from page 1 to 52 and held that
there was no evidence to show that sufficient effort has been expended in the production
of the work as such it could not be called original.

In University of London Press limited V. University Tutorial Press,

examiners were hired to create mathematics exam papers for the University of London
and they were able to prove that they thought up the questions and did not copy the
questions even though they drew from the wealth of knowledge in the field of
mathematics. Peterson J. held; that “Copyright Acts are not concerned with the
originality of ideas but with the expression of thought” (in this present case of a
 literary work; the expression of thought in writing.) furthermore, “original means that
such expression must originate from the author and must not be copied”.
In Macmillan and co limited V. Cooper, it was held (Lord Atkinson delivering
the judgment) that it is the product of one man’s skill, labour and capital that must not
be appropriated by another. Not the elements or raw materials. The question is not
whether the idea and materials used have never been used before. It is whether the same
plan and arrangements have been used before for the same purpose.
A copyist cannot enjoy copyright.
In ICIC (directory publication limited) V. Ekko Delta (Nigeria Limited) and
another, the plaintiff who were publishers of the national telephone directory of Nigeria
published the directory of incorporated companies in Nigeria. The defendants also
published the same. Leading to a depression in the plaintiff’s business. When sued, the
defendants were able to prove that the directories were not the original work of the
plaintiffs as they copied from the federal ministry of trade and those of P and T and then
turned around to claim ownership. The court restated that a copyist cannot enjoy
copyright.

As such, it can be seen that independent skill, judgment and effort must have
been expended in producing the literary, musical or artistic work… it must not be a
mere copy of another’s work.
There is no fixed quantum but a little independent level may suffice. Some
jurisdictions refer to this requirement as the sweat of the brow principle.
- Compilations can be protected but the compiler must seek permission from the owners
of the work.
- The various authors in a particular book have copyright in their works and can use it
anywhere. The editor is the owner of the copyright of the book.
- A change in medium or translation can accord one with copyright.
In Byrne V. Statist Company, On the request of his employer, the employee (a
newspaper editorial staff of financial times) summarized and translated a speech. The
court held that the employee had copyright in the translation because even though he
was employed, it was done in his own time.
Factual things like; news, historical facts, and so on… belong to the public
domain and can be used by anyone so long as it was not copied from another person’s
work verbatim. The reporter should apply skill in the diction he uses and the way such
report is presented.
In Chicago Record-Herald V. Tribune Association: The court held that the
Herald, in using parts of the article published by the Tribune including the style and
presentation, had infringed the copyright of the tribune. Notwithstanding the fact that
they gave credit to the tribune.

Copinger and Skone James posit that in determining if a work is original, the work
should be looked upon as a whole.

CAN PROTECTION BE ACCORDED TO TITLES?

A title can be defined as a descriptive heading or a heading that identifies a work.
Generally, titles in themselves are not protected by copyright for being too short and
insubstantial.
A claimant who wants to secure victory is advised to seek protection under trademark
or alternatively make his claim under the tort of passing off.
In Exxon Corporation V. Exxon Insurance Consultants International Limited:
The court held that there is no copyright in a name alone. It went further to note that
even if the plaintiff sought protection under trademark, their claim would likely fail
because the infringer in this instant case was not in the same market segment as the
claimant.
Also,
In Francis, Day and Hunter limited V. 20th Century Fox limited: The court held that a
title was too insubstantial to be accorded copyright.
In Adenusi V. Aromolarun: The court held that the title “English Verbal Aptitude Test”
is ineligible for copyright protection.
In Dick V. Yates- the court held that a title should be sufficiently lengthy and
independent skill and labour must have been applied in its creation for a title to be
accorded protection.
Even in the extreme case of Broemexl V. Meyer: The court refused to grant copyright
to the title; where there is a will, there is a way, even though both storylines referred
to a will (testamentary disposition).

However, (as has been noted in Sweet V. Benning) headnotes in law reports can be
protected because it is presumable that sufficient effort is expended in the creation.
 FIXATION IN A DEFINITE MEDIUM.
Section 1 (2b).
As has been noted earlier, the courts have constantly held that copyright does not exist
in ideas. But in the form in which they are expressed. To be accorded protection, a
literary, musical or artistic work must be fixed in a definite medium of expression from
which it can be communicated or perceived. Now known or to be later known.
Although, there is no requirement for cinematograph, broadcasts and sound recording
to be fixed, they would usually by their nature be fixed in a definite medium of
expression.
In Tate V. Thomas: a person conceived an idea for a play. The plaintiffs wrote
the lyrics, dialogues and music. The person who conceived the idea claimed copyright
but his claim was dismissed because fixation was done by the plaintiffs.
It is humble to submit that the rationale behind fixation is to close the floodgates
of the court from frivolous and unfounded litigations. Everybody can have an idea.
Having an idea and putting it into execution are two separate things.
Note that all the law requires is that the originator of the idea fixes it in a definite
medium. It does not regard the agent or tool used to facilitate the fixing- Donoghue V.
Allied newspapers ltd. (e.g a person dictating to his typist would have copyright
notwithstanding the fact that the typist fixed the words).

NON-ELIGIBLE WORKS
Section 1 (3) Artistic works intended by the author to be used as a model or pattern to
be multiplied by industrial process.
Such a creator is advised to seek industrial protection.
Slogans, familiar symbols or designs, illegal or immoral and indecent works should not
be protected.
Others like standard log books, Cheques, calendars and so on should not have copyright.

Section 1(4) further states that a work shall not be ineligible by reason only that the
making of the work or the doing of any act in relation to the work involves an
infringement of copyright in some other work.
Be reminded that there is no form of preregistration required for copyright protection to
be accorded.
 In the U.S.A, The author is advised to display a notice at the title page ©. Accidental
omission does not invalidate though. An application for registration, the fee and two
best copies of the work are deposited at the office. Failure to comply does not invalidate
copyright but stays right to bring an infringement suit until the condition is fulfilled.
Registration shows that the claimant is the true owner of the work. Display of copyright
notice is necessary to prevent innocent infringement.
IS THERE A STATUTORY DUTY TO KEEP A REGISTER OF WORKS?
Section 14 of the act provides that publishers, printers, producers or manufacturers,
should keep a register of all works produced by them showing the:
- Name of author
- Title of work
- Year of production
- Quantity of the work produced.
Section 23 goes further to state that, Failure, wilful imputation of false entries, tendering
such false entries can make the offender liable to a fine not exceeding #10,000
COPYRIGHT OWNERSHIP. Section 2, 3, 4 and 5 of the act
Conferment of copyright.
Copyright is not automatic per se in Nigeria. The previous discussions have enlisted
eligibility for copyright. As such, a work may be eligible for copyright protection but
may not have been conferred with copyright.
Form the provisions of the Section 2,3,4 and 5 of the Copyright Act, Copyright can
be conferred on eligible works under the following heads:
- Section 2 – copyright shall be conferred on a qualified person. Meaning the author or
one of the authors’ (in the case of joint authorship) is a Nigerian citizen or domiciled in
Nigeria. In the case of a body corporate, that it is established under the laws of Nigeria.
- Section 3 – Where the work (other than a broadcast) is first made or published in
Nigeria. Publication means making the work accessible to the public. Oscar trademark
case, where winners were given a copy of the work, it was not seen as publication. Read
also Francis Day and Hunter ltd V. Feldman and co.
Note that simultaneous publication within 30 days in another country is the same as
publication in Nigeria.
- Section 4 – Where the work is made by or under the control of the government, state or
an international body.
- Section 5- First publication in: (or where the author is a citizen/domiciled in) a member
state to a treaty which Nigeria is a party to. E.g where the author is a member of any of
the UN, ECOWAS, OAU… states. In the case of a corporation, where it is established
under the laws of the party state in question.
 Irrespective of the quality of the work or the qualification of the author in the specific
field or area.
In Ifeanyi Okoyo and another V. Prompter Quality Services Nigeria Limited and
Another: The issue was whether works of architecture drawn by an unqualified architect
could be accorded copyright. The answer: Yes.
ACQUISITION OF COPYRIGHT.
After an eligible work has fulfilled the provisions, of Section 1, Section 10(1) provides
that copyright shall first vest on the author in respect of works under Section 2 and 3
(citizenship of Nigeria/first publicarion in Nigeria).
Who then is the author?
Thankfully, Section 51 of the act defines an author;
- In respect of Literary, musical and artisric works (other than a photograph); the person
who creates the work.
- In respect of a cinematograph, broadcast and sound recording, the person by whom the
arrangements for the making of the film, transmission or recording (respectively) are
made.
Except a contract to the contrary is entered into by the parties.
- In the case of a photograph, the person who took the photograph.
- Copyright in a work of collective authors vests in the person who organizes or
commissions the respective authors to contribute.
- Each author has copyright of his own part/chapter in the work.
Except the author is employed by the government or other international recognized
body.
- In joint authorships, their works cannot be divided as such they should share authorship
and benefits accrued.
- In the case of a sound of a musical work, the person in whose name the recording was
made.
- In the case of a sound recording, the producer.
- In the case of a film, the producer and the principal director, see Re Fg films Section 9
and 10 of the UK Copyright, Patents and Designs Act
- In the case of a broadcast the person making the broadcast.

Section 10(2), works made in the course of employment shall first vest in the author.
Unless there is a written contract to the contrary.
 The courts are advised to construe the level of control exercised over the author. There
is a difference between a “contract of service” and a “contract for services”. The latter
being an independent contractor (outside the course of employment).
Tests like the control test, economic reality test, organizational test, and so on have been
suggested to help in determining whether or not a work was made in the course of
employment. All in all, the following principles should be noted:
- The work must have been done in the course of employment.
In Byrne V. Statist:The editorial staff of a newspaper company alongside two other
independent contractors were asked to translate an advertisement. The translation was
done entirely in the plaintiff’s time. It was held that the translation was not done in the
course of his employment.

Where equipment is provided by employer, and remuneration paid, then it is that of

service,
In Gentil V. Tabansi Agencies ltd 1977 NCLR 344. The plaintiff was employed
under a weekly salary to train the defendant’s band of musicians. During his
employment, he made certain recordings.
When the plaintiff resigned from the company, he sued for infringement when the
defendant company marketed the sound recordings. The court held that the defendants
had provided the equipment and band for the plaintiff and weekly wages of #300. He
was also required to shout their slogans during practice. It was held that his contract
was that of service.
Hon. Dr. Olakunle (the Chairman of the Nigerian Law Reform commission) stated that
the rationale behind this is because of the unequal bargaining power. The weaker
position of the employee.
Section 10 (3) Where LITERARY, MUSICAL AND ARTISTIC WORK, is made by
the author in the course of employment for a newspaper, magazine, periodical or the
like and for the purpose of publication, copyright shall first rest on the employer- except
a contract to the contrary is provided.
In the case of Cinematograph and sound recording, the author is advised to make a
contract in writing to clarify issues.
For government or international body works, it shall first vest in the government or
international body
From the combined interpretation of Section 1(2), Section 10 and 51(1) of the
copyright act, it can be seen that the author can be defined as the person who expended
 his independent skill, judgment and labour in the creation of the work. The creator of
the work or the person that brought about the creation.
As such; Where X, dictates a poem from his head, which his secretary types, it
follows that X should have copyright in the work rather than the secretary who fixed it
in a definite medium- Yemitan V. Daily Times.
However where skill and labour has been exercised in fixing a speech (verbatim) given
extempore, the writer can be vested with copyright.
In Walter V. Lane: The reporter who wrote down verbatim, an oral speech was accorded
copyright. As the learned justice held that it is quite rare to find a person with such skill,
talent and speed in taking down a written speech verbatim.
Section 10 (5) where a work under the control and supervision of the government, state
or international body, copyright shall vest in the government, state or international body
respectively.

TRANSFER. Section 11 OF THE COPYRIGHT ACT.

Section 11(1) provides that copyright can be transmissible by:
- Assignment
- Testamentary disposition
- Operation of the law as moveable property.
Please note that: Transfer is different from sale of the material in which the work is
fixed.
Cooper V. Stephens: Where the defendants claimed that the sale of the block
transferred the copyright in the block to the buyer. The court rejected this argument.
Oshinowo V. John Holt Group Limited and Others: The defendants claimed that
they had the right to reproduce the painting of the plaintiff because they bought the
painting. The court held that purchase only transferred ownership in the object rather
than the ownership or transfer of copyright.
- ASSIGNMENT:
An assignment is a written transfer of copyright ownership in an existing or future
work from the author to the assignee.
Equity looks at the substance rather than the form.
An assignment or exclusive license must be in writing to have effect-Section 11(3)
however, in equity, non-compliance can be overlooked. While a non-exclusive license
 may be written, oral or inferred from conduct.
A licence is defined in Section 51. It can be seen as a lawfully granted permit, allowing
the licensee to use the work. Usually, in practice such licenses should be registered.
There are three categories of license:
- An Exclusive License/Non- Exclusive.
- Licenses coupled with a consideration/interest (Irrevocable).
- Gratuitous license (revocable).
An exclusive licence is an authorization in writing, signed by the author, granting the
licensee the right (to the exclusion of all others including the author) to exercise all right
otherwise exercisable by the copyright owner. In plain words, he can do whatever the
author (Licence owner) can do in relation to the work.
The licencee may sue for infringement in his own right like a copyright owner.

An assignment or licence granted by one copyright owner shall have effect as though it
has been granted by his co-owner but they shall share the profits equitably. Section 11
(5).
A non-exclusive licence can be granted to many people. A non-exclusive licencee has
to co-join the licensor if he wants to sue. It may be written or oral. Adenuga V. Ilesanmi
press ltd.
A document transferred for an illiterate should be read over to him and explained. The
writer of the document must also sign it.

- TESTAMENTARY DISPOSITION.
Involves bequeathing (total or limited) copyright ownership to the benefactor of the
will. The copyright then vests in the beneficiary as soon as the executor assents. Where
the owner of copyright dies intestate, the rules of succession applicable to the deceased
copyright owner prevails- Olowu V. Olowu.
Section 11 (7) provides that transfer of future copyright is possible.
A careful counsel is advised to consider imputing (while also looking at the provision
of the act) the following terms when drafting an agreement of transfer of copyright.
1. The nature of rights transferred. (copyright is divisible as such it has to be ascertained
whether all or limited rights are to be transferred. E.g, is it just the reproduction, sale or
all?
2. The duration. (after which the copyright reverts back to the author)
3. The geographical restriction. (In what geographical area can the right transferred be
 exercised? Note that this is subject to the bilateral or unilateral agreements between the
states)
4. The amount of consideration/royalty to be paid.
5. How should the right be exercised? once? Continuously?
6. The mode and frequency of payment.
7. The mode of dissolving the agreement.
8. Dispute settlement clause.
9. Other necessary terms, conditions and imputation.

The courts shall not uphold an unconscionable bargain. Schroeder Music Publishing co
V. Macaulay. Where the owner of copyright is adjudged bankrupt, his property,
including copyright vests in the trustee in bankruptcy.

DURATION OF COPYRIGHT.
Copyright protection is not perpetual. Once copyright in a work has expired, it
is said to have fallen into “public domain” and can be exploited by any member of the
public. Copyright can be accorded with to a person who exploits a work that is in the
public domain… Subject to the exceptions in Section 1, 2 and 3 of the Copyright Act.
The Berne Convention recommends a minimum of the author’s life plus 50 years.
The First Schedule of the Copyright Act 1988 stipulates the following duration:
- In the case of literary, musical and artistic works (other than photographs), 70 years
after the end of the year in which the author died.
- If a body corporate: 70 years after the end of the year in which the work was published.
- In the case of Cinematograph films, sound recordings, broadcasts and photographs: 50
years after the end of the year in which the work was published or the broadcast first
took place.
- Section 2(3) of the Copyright Act in literary, musical and artistic work where author is
anonymous or pseudonym: 70 years after the end of the year of first publication. If the
author becomes known, 50 years after the end of the year in which he died.
- Section 2(4): In the case of joint authorship of a literary, musical or artistic work; 70
years after the end of the year in which the last joint author died.
Obviously, the end of the year must imply December 31st.
Note that the relevant determinant is the death of the author not the licencee or assignee.
Note also that: Mere reproduction of the work does not reset the duration.
Again: Transfer of the right is immaterial.
 THE NATURE OF COPYRIGHT.
Copyright relates to the whole or substantial part of the work.
The nature could be divided into Economic and Moral rights.
Economic rights: Refer to the rights conferred on the author to exploit his work to the
exclusion of others. Usually commercial in nature.
Moral Rights: Are the inalienable and imprescriptible rights granted to the author of the
work. Commonly referred to as droit moral. Right to claim authorship and prevent
distortion or mutilation of his/her work.
Please note that the acts specified in the second schedule (of the Act) is outside the
purview of the protection accorded.d
Section 6, 7 and 8 of the Copyright Act provides for the economic rights.
Copyright gives to the owner the exclusive right to do, authorize or control the doing of
any of the following acts in Nigeria.
a. In the case of a literary or musical work;
- Reproduce
- Publish
- Perform
- Translate or make an adaptation of the work
- Distribute for commercial purposes
- Communicate the work to the public.
- Do any of the above listed acts to the adapted or translated version of the work.
b. In the case of an artistic work:
- Reproduce
- Publish
- Include in a cinematograph film
- Adapt
- Reproduce or publish the adapted work.
- In architectural works, Section 6(3) provides that it shall include the right to control the
erection of the building which reproduces the whole or substantial part of the work.
c. In the case of a cinematograph film:
- Make a copy
- Communicate it to the public
- Include the work in any cinematograph film and utilizing its sound tracks.
- Adapt.
- Make a copy and communicate to the public, the adapted version of the work.
- Distribute to the public for commercial purposes.
Literary, musical and artistic workc is in Section 6 a, b and c respectively.
Section 7 of the Copyright Act provides for the nature in sound recording.
They include the exclusive right to control in Nigeria:
- The reproduction
- Broadcasting and communication to the public
- Distribution for commercial purposes.
Section 8 of the Copyright Act provides for the nature in a broadcast
To control the doing in Nigeria:
- Recording and re-broadcasting
- Communication to the public
- Distribution for commercial purposes
(2) Control the taking of still photographs from a television broadcast.

For the purpose of understanding this topic, a central theme that runs through the above
listed provision(s) is: “distribution for commercial purposes”. This buttresses the
Economic Theory. In a lay language do not reap the fruit of another man’s labour.
MORAL RIGHT.
Droit moral. Right to claim authorship. Owned by the author for being the author.
Collectively called right of paternity and integrity.
Initially, an author was not accorded protection once his ownership rights have been
transferred to another. When the Berne Convention was revised, Article 6 Bis provided
that at least, during the author’s lifetime, he should be identified as the author of the
work and should have the right to object to derogatory treatment of his work. The
Copyright Act has gone further to note that the right is inalienable, imprescriptible and
perpetual.
Thankfully, Section 12 of the Copyright Act.
a. Provides that the author should have a right to claim that he is the author of the work
(Right to claim authorship). His name must be reflected. Except the work is incidentally
included in a broadcast.
b. Right to object to any distortion, mutilation or modification of the work if such is
prejudicial to his honour or reputation.
To enjoy this right (of course) the work should be an eligible work.
Section 13 provides for droit de suit. That the author of a manuscript, graphic or three
dimensional work has right to share in the proceeds from sale of the original work.
PERFORMER’S RIGHT.
Also referred to as neighbouring rights.
Initially, performers were not accorded protection because their works had not
been fixed in a definite medium. Bootlegging was the order of the day. Bootlegging is
the secretive act of recording a live performance. However Part II (Section 26) of the
1988 Act accords protection to performers.
Before we proceed, it is important to distinguish between performer’s right and
performing right because the two are usually confused to mean the same thing.
A performing right is the right of the author/owner of a copyright to perform his
work in public. While performer’s right means the right accorded to a performer in
relation to his performance.
As such, recording, reproducing, broadcasting… etc. a whole or substantial part
of the live performance without the consent of the performer constitutes an
infringement. However, such consent must not be unreasonably refused where it is for
educational, private or research purposes.
Performance from the interpretation of the Act means a literary, dramatic or
musical live performance. As such a performer can be seen as a musician, (single or a
band) an actor, a singer, and so on.

The right subsists for a period of 50 years from the end of the year in which the
performance took place.
The remedies available for infringement of a performer’s right include;
Damages and an account for profit or conversion. The criminal remedies may include:
10,000 or 50,000 or 100 if in possession.-Section 30 of the Copyright Act.
The accused can be absolved if he can establish that he did not know reasonably know
that his act amounted to an infringement of the performer’s right.
Section 31 provides for the protection of folklore.
Folklore is a group oriented creation reflecting the expectation of the community as an
adequate expression of its cultural and social entity. The Act protects folklore. Its source
must be indicated when it is used in accordance with any exceptions provided in the
second schedule of the act.
The right is infringed where (without the consent of the NCC) the work is reproduced,
 adapted, translated or transformed and communicated to the public FOR
COMMERCIAL PURPOSES OR OUTSIDE THEIR TRADITIONAL CONTEXT.
The right to enforce this right is vested in the NCC. Nigerian Copyright Commission.

INFRINGEMENT OF COPYRIGHT.
The copyright act grants owners of copyright the power to control the doing of
the acts enumerated in Section 6, 7 and 8 of the act. Subject to the exceptions provided
in Schedule 2 of the Act.
Section 15 of the Copyright Act provides that Infringement occurs where a person
without licence or authorization does or causes to be done any act which only the owner
of copyright has the right to do.
Independent creations which could otherwise have infringed copyright are excused –
Ladbrooke V. William Hill. To constitute infringement, there must be a causal
connection between both works.
In Francis Day and Hunter Limited V. Bron: The court of appeal held that, to constitute
infringement, there must be:
- Sufficient similarity between both works.
- Derivation from the copyrighted work.
- There must be a causal connection between the infringing work and the copyrighted
work.
- Eventually, it has to be a question of fact. Also it is necessary to show that the defendant
was in fact aware of the plaintiff’s work.
Once it can be established, it is no defence to say that the defendant did not know that
he was committing an infringing act.
In determining causal connection: The degree of familiarity, striking impression and the
possibility that it may be a coincidence are taken into account.
ACTION FOR INFRINGEMENT
Presumptions and affidavit evidence.
An affidavit is a written declaration made under oath.
Section 42 of the Copyright Act provides a rebuttable presumption in respect of facts
stated in the affidavit: It is presumed that:
- Copyright subsisted in the work at the time stated.
- Person named is the author.
- The work exhibited is the true copy.
- The author is a citizen of or domiciled in the named country if a company, that it is
incorporated by or under the laws of the named country… and the work was first
published in the named country.
- The certificate is the true certificate of registration of the company.

Section 43 in respect to infringement of copyright a rebuttable presumption that;

- Copyright subsists in the work.
- The plaintiff is the owner of the copyright.
- The name appearing on the work is the name of the author.
- Name appearing is that of the publisher
- That the work was produced or published at the date and place appearing on the work.
The copyright act provides that infringement could be of the whole or substantial part
of the work. The decree does not explain what substantial means.
The courts are warned not to look at only quantity because a little portion can be
extracted and all the substance of a work taken.
Construing substantiality often is a question of fact. Both quantity, quality and degree
are looked upon.
In Hawkes V. Paramount Films Services limited: the court held that playing a
half minute extract from the 4 minutes work of the plaintiff amounted to an
infringement. It constituted a substantial part because it could be recognized by
everyone who heard it.
Section 16 (1) provides that it is actionable at the suit of the owner, assignee or
exclusive licensee.
The Federal High Court (in the place where the infringement occurred) has
jurisdiction to entertain both civil and criminal suits relating to infringement of
copyright. Same provision in Section 46 of the act.
However, note the exception provided in the second schedule. Which includes:
- Fair dealing.
- Parody, pastiche.
- Incidental inclusion in a film or broadcast form which it can be viewed by the public.
- Educational use.
- Approved broadcasting
- Direction of the government
- Not more than three copies of the book in a public library
- Conversion into braile and so on by government approved institutions.
And a host of others. It is however instructive to note that the major theme is: That the
 work or a substantial part of it should not be used for commercial purposes, not
competitive and balancing public interest with that of the copyright owner.
Fair dealing:
One of the most important and well-established limitation.
The central theme in consideration (in an infringement action) is whether any
competition is created between the infringer and the copyright owner.
In Hubbard V. Vosper: The court had to consider the use of fair dealing in relation
to a book called the mind benders. In this case, the defendant made use of large portions
from the book and used in making his criticisms. Lord Denning (in this case)
adumbrated that:
- It is impossible to define fair dealing.
- It must be a question of degree. Consider;
 The number and extent of quotations and extract
 The use made of them. (for criticism: acceptable but if to pass the same message, this
may be unfair dealing)
 The proportion (long portions with few comment may be unfair)
- After all said and done, it must be a matter of impression left to the tribunal of fact to
decide.

The American Copyright Act provides principles that should guide the courts in
determining.
- Is it for commercial or non-profit purpose?
- What is the nature of the copyrighted work?
- Was a substantial amount or proportion of the work used/lifted?
- Is it competitive or non-competitive?
All depending on the facts of the case. Where its usage is fair, the user is to acknowledge
the author.
Before we proceed, please note that fair dealing and substantiality are not the same. It
is only when the court has determined that a substantial part of the work has been used
that the question of fair dealing comes to play.
It has been held in University of London press V. University Tutorial Press. That the
mere fact that a work is republished for private use does not mean that there is fair
dealing.
REMEDIES
After the jurisdiction of the court and the parties have been decided, the courts may
 consider the remedies it may grant.
Who can sue? The owner of copyright.
Who may be sued? Individuals or companies that are allegedly infringing the copyright
in a work.
The remedies may be civil or criminal.
Civil remedies include:
- Injunction
- Damages
- Accounts for profits
- Conversion rights.
INJUNCTION
This appears to be the most commonly sought remedy. It is an equitable order of the
court restraining the commission or continuance of a wrongful act.
In American Cynamid V. Ethicon ltd. The court restated the rules governing the grant
of an injunction. Some of which include:
- Where damages would not be an adequate remedy.
- In a situation of real urgency.
- There must be a substantial issue to be tried.
- Probability that damage may occur if an injunction is not granted.
- It may be given ex parte it may be interlocutory of final.
An interlocutory injunction is granted pending the determination of the case. To
maintain the status quo so that the final judgment may not be ineffectual.
Section 16 provides that no injunction shall be given in respect of a partly completed
building.
DAMAGES
This remedy was described in Yemitan V. Daily Times as “Important but difficult”
because the courts are faced with ascertaining the quantum of injury. It is impossible to
ascertain it with arithmetic precision. In this case, the court took into account, the
flagrancy of the defendants.
In an action for damages, the owner seeks to recover what he has lost due to the
infringer’s act. The loss of profit which he would otherwise have made.
Section 16(4) provides that the court may take into cognizance the flagrancy of
the infringement. If the infringer can establish that he did not believe nor have reason
to believe that his act amounted to an infringement the author or owner of the copyright
 is only entitled to an account for profit. As such, the innocent infringer is not punished
nor is he allowed to benefit from his wrongdoing. This follows from the principle that
Ignorance of the law is not an excuse.
ACCOUNTS FOR PROFIT
This is an alternative (rather than an addition) to the remedy of damages. The
plaintiff must choose either damages or accounts for profits. Not both. This is the most
useful remedy because it is also recoverable from an innocent infringer. It takes from
the wrongdoer all the profit he has made from the infringement and gives it to the
wronged.
CONVERSION RIGHT
Conversion is the intentional dealing with goods in a manner inconsistent with the right
of the true owner. Section 18 provides that the infringing copies, machines, tapes,
equipment or contrivances used are deemed to be the property of the owner who may
take proceeding for the recovery thereof.
Criminal remedies.
Section 20. Because the individuals have to be protected from poor quality materials
and counterfeit goods.
After intention has been proved,
Anybody that:
- Makes or causes to be made for sale hire or trade
- Imports more than two infringing copies
- Possession of duplicating machines or utilities
- Distributing for the purpose of trade
- Possessing other than for private use, infringing copies.
With regards to a work in which copyright subsists, is in violation and 10k or 50k or
100 for each copy.
All goes to show that the provision is against competition and annexing of fruits of
another.
The accused may be exculpated where he can prove that he did not know that his
conduct amounted to an infringement. The court may order the infringing copies to be
destroyed.
Note that this also applies to performer’s right.
Section 21 criminalizes the dealing in the duplicating machines used for infringement.
 FACILITATING INFRINGING ACTIONS.
Can be seen as an order for inspection and seizure upon reasonable suspicion that
infringing articles are in the premises of the defendant. Referred to as the Anton Piller
order… (confirm the spelling). Originating from the case of Anton Piller K.G V.
Manufacturing Processes ltd. This has been followed in Nigeria with the case of Ferodo
Ltd V. West Germany and Nigerian Trading co and the case of Ferodo V. Unibros
Limited.
This has been accorded statutory backing in Section 25 of the Copyright Act.
The procedure (summarized).
- The plaintiff applies to the court ex parte and in camera.
- For an order permitting him to inspect the defendant’s premises for infringing materials
(and seize where available).
- Upon reasonable suspicion that there is in any premises or house equipment or plates,
and so on… intended to be used for making infringing copies.
- He shall be accompanied by an officer not below the rank of assistant superintendent of
police.
- Lord denning posits; that the effect is such that; if the defendants were forewarned, there
is a grave danger that vital evidence will be destroyed. And the order should be granted
when such inspection would do no real harm to the defendant. This is true because the
infringer is taken by surprise and there is no time to hide or destroy the infringing copies
or alert his partners in crime.
The permission of the accused must be obtained before actual entry upon his/her
premises. Because this is not a search warrant. Unreasonable refusal to grant permission
may amount to contempt of the court.
CONDITIONS FOR GRANTING ANTON PILLER ORDER.
Because its effects are far reaching (it can amount to trespass to land,
infringement of right to privacy, freedom from self-incrimination, and fair hearing
guaranteed under the constitution). It is granted only in the most extreme cases.
- The plaintiff must show a strong prima facie case
- That he has or is likely to suffer if the order is not made.
- Clear evidence that the defendant has infringing copies in his possession and that he
may destroy such materials before any application on notice can be made.
- Mere suspicion may not suffice.
In Oluwanishola Development co V. Guinea Insurance co. the court held that there is
no need for alarm. And the order is important because it facilitates an infringement
action.
The claim that it infringes privacy has been dismissed in the case of Anton Piller and
 K.G V. Manufacturing Processes Limited and frerodo V. Unibros Limited.
In Emmanuel V. Emmanuel, subjective factors like the dishonesty and the abuse for
intellectual property rights were taken into consideration.
THE NIGERIAN COPYRIGHT COMMISSION.
Section 34 of the Copyright Act establishes the Nigerian copyright commission. (NCC)
it is a body corporate with perpetual succession and common seal.
It is the body charged with the administration of copyright in Nigeria.
This is a welcome development with the 1988 Act.
COMPOSITION. (please confirm the details of this sub-topic)
The governing board is made up of 25 members. 10 representing the government and
15 representing various interests within the copyright industry.
- The chairman
- Director are appointed by the president of Nigeria.
A representative of (not below the rank of director);
- The federal ministry of Justice.
- Education
- Police force not below the rank of C.O.P
- Nigerian customs service not below the rank of comptroller of customs.
- Six others appointed by the minister to represent as far as possible the authors of the
works listed in Section 1 of the act.
The director is responsible for the day to day running of the commission.
Duties of the commission
1. Administration of copyright.
2. Monitor Nigeria’s position in relation to international agreement, bilateral and
multilateral treaties between Nigeria and other countries.
3. They enlighten the public on matters relating to copyright.
4. They are empowered to maintain an effective databank on the authors and their works.
The national copyright information centre has been established in conjunction with
UNESCO and the national library.
5. NCC is not the owner of copyright as such they are not expected to enforce copyright.
At best, they should lubricate the wheels of enforcement and ensure that it is not difficult
for the copyright owners to seek redress.
6. Power to grant compulsory licences.
7. Have power to appoint copyright inspectors with powers of police.
8. Power to approve a collecting society.
 In conclusion, may I humbly submit that the copyright owners have a part to play in
educating the public through campaigns against the purchase of infringing works. By
this, they could gain public sympathy. Thereby reducing the purchase of the infringing
articles.

INDUSTRIAL PROPERTY LAW.

THE LAW OF PATENT.
:: Definition: The law of patent is a branch of industrial property law.
:: For the purpose of this subject, industrial property law entails: Trademark (dealing
with identification of products), Industrial design (the aesthetics and appearance of a
product), Patent (Dealing with new inventions and how they function).
:: A patent is the legal right conferred on the inventor of a new, useful and exceptional
product or process to exploit (i.e. sell, distribute, etc.) it to the exclusion of others.
:: Unlike Copyright which is generally conferred when the work is fixed in a definite
medium of expression, Patents are granted in respect of registered inventions.
:: The patent system seeks to strike a balance between public interest (to access new
inventions) and private right (of the creator to be rewarded for his outstanding
invention).

HISTORICAL DEVELOPMENT OF PATENT.

We are looking at it from the perspective of Britain.
The crown conferred monopoly on creative individuals as an incentive to innovate. As
time went by, this power was abused and converted to a tool for dispensing political
favour to persons who may be able to buy the protection. It worsened as patent was
being granted in respect of already known products, necessities and mediocre inventions
like playing cards (as was done in Darcy V Allin).
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Contents
INTELLECTUAL PROPERTY (COPYRIGHT LAW) ......................................................................... 1
 GENERAL INTRODUCTION ........................................................................................................... 1
THEORIES UNDERLYING INTELLECTUAL PROPERTY. ......................................................... 2
HISTORICAL DEVELOPMENT ...................................................................................................... 2
ELIGIBLE WORK(S) ........................................................................................................................ 3
NON-ELIGIBLE WORKS ................................................................................................................. 7
IS THERE A STATUTORY DUTY TO KEEP A REGISTER OF WORKS? .................................. 8
COPYRIGHT OWNERSHIP. Section 2, 3, 4 and 5 of the act .......................................................... 8
ACQUISITION OF COPYRIGHT. .................................................................................................... 9
TRANSFER. Section 11 OF THE COPYRIGHT ACT. .................................................................. 11
THE NATURE OF COPYRIGHT. ................................................................................................... 14
MORAL RIGHT. .............................................................................................................................. 15
PERFORMER’S RIGHT. ................................................................................................................. 16
INFRINGEMENT OF COPYRIGHT. .............................................................................................. 17
REMEDIES....................................................................................................................................... 19
FACILITATING INFRINGING ACTIONS. ................................................................................... 22
THE NIGERIAN COPYRIGHT COMMISSION. ........................................................................... 23
INDUSTRIAL PROPERTY LAW. ...................................................................................................... 24
THE LAW OF PATENT. ................................................................................................................. 24
INDUSTRIAL DESIGNS. ................................................................... Error! Bookmark not defined.
THE LAW OF TRADEMARKS. ........................................................ Error! Bookmark not defined.
PASSING OFF..................................................................................... Error! Bookmark not defined.

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