INTELLECTUAL PROPERTY LAW AND ENTERTAINMENT INFRINGEMENT IN NIGERIA: A CRITICAL ANALYSIS.
By Verem Daniel Iortyom, Esq , Sophia Terhembafan Terver- Ubwa and Ezeani Onyedikachi Collins
Entertainment law interlaced with the various legal field and covers a variety of areas in the entertainment industry including film, broadcasting, music, theatre and publishing. The law is a complex one that span the subject of company law, contract, tax law, Litigation, copyright etc. Intellectual property law grants and protect property right in works and authorship such as literary work, cinematographic work, dramatic work, musical work, architectural work etc. The entertainment industry to a large extent have suffered a lot of infringement on the originality of the creators of work. In as much as there is no codified law regulating the entertainment industry, there are variety of laws as stated earlier which regulates activities in the entertainment industry, and reduce the level of infringement that emanate from it. This work seeks to present and analyse the various laws that regulate the entertainment industry in Nigeria, some instance where original work of creators has been infringed upon and the remedies that would accrue to a person who right have been violated. It therefore recommends that a specialised entertainment Act should be established by the national assembly. The Act should define and specify the various permissible activities of the industry. The Act should also include the taxation laws such as the Federal Capital Territory Entertainment Act thus ensuring improvement in the entertainment tax regime.
Intellectual property law is the rule that guides the originality of intellectual work. Intellectual property is, therefore, divided into two-part, wit; industrial property law and copyright (and other related) law. In the same way, real property owners are accorded certain rights, and intellectual property owners are also having certain duly regulated and protected laws. Intellectual property has four major areas to wit;
a) Copyright (artistic and literary expression)
b) Patent (invention and innovation)
c) Trademark (symbolic information)
d) Industrial design.
Entertainment law, on the other hand, is commonly referred to as media law or media and entertainment law is the entire collective mass of legal framework and services devoted to the
entertainment industry . It has to do with the representation of artists and producers, the negotiation of contracts, litigation, and the protection of intellectual property rights .
Like every other discipline has a variety of sub-division peculiar to their respective industries, entertainment law is one of such sub-division that is particularly with the entertainment industry. As it is discussed, one can impliedly say that entertainment law goes beyond intellectual property. It is the entirety of legal service devoted to the entertainment industry. The entertainment law includes inter alia the music recording, radio, theatre, publishing, sports industries, and films. These industries most time faces certain business obligations that necessary various laws including Copyright, Trademark, Trade secret, right of privacy and publicity, labour and employment law, securities, tax law, tort, corporate, and even international law.
The incidence of infringement and violation of an intellectual property right in the entertainment industry has been on the increase in Nigeria . The activities of infringers have robbed many producers, artists, publishers, manufacturers, marketers, and stakeholders of the benefit of their original work . An infringement in the entertainment industry occurs when any other person without authorization does anything which only the owner of the creative work has the right to do. The Nigerian entertainment industry is plagued with abusers of intellectual property, this is in turn blamed on the widespread and uncontrolled use of the internet as a medium of data exchange .
This paper seeks to examine the areas that are covered by entertainment law in Nigeria, the nature of entertainment infringement in the entertainment industry, as well as, the remedies for entertainment infringement in Nigeria.
Intellectual property can be defined as the property from original thought protected by law: original creative work manifested in a tangible form that can be legally protected . According to the Black’s law dictionary :
Intellectual property is a category of intangible right protecting commercially valuable products of human intellect. The category comprises primarily Trademark, Copyright and Patent right, but also includes trade secret rights, publicity right, moral right and right against unfair competition.
According to Adeleye intellectual property is an intangible asset because it has to do with the service of human intellect. The area of law that deals with and oversees the creation of intellectual property patent, copyright, trademark, and trade secret laws, the protection of intellectual property rights: and the legal pursuit of those who infringe on another’s right to his/her intellectual property is known as intellectual property law.
Entertainment/ Entertainment law
Entertainment has no universally accepted definition, it has so many dimensions. Entertainment is defined as the act of diverting, amusing, or causing someone’s time to pass agreeably; something that diverts amuses, or occupies the attention agreeably . Entertainment is the action of entertaining or the process of being entertained . According to Black’s law dictionary ;
Entertainment law is the field of law dealing with the legal and business issues in the entertainment industry (such as films, music, theatre) and involving the representation of artists and producers, the negotiation of contract and the protection of intellectual property.
The Black’s law dictionary defines infringement as an act that interferes with one of the exclusive rights of patent copyright or trademark owner .
AREAS OF LAW GOVERNING ENTERTAINMENT LAW IN NIGERIA
Entertainment law, which is a subset of media law and the general body of intellectual property law, has for decades in Nigeria been underutilized, underdeveloped, and largely left untouched. Nigeria is yet to have a composite body of law regulating the entertainment industry. However, there are laws that guide and protect entertainment in Nigeria wit;
THE COMPANIES AND ALLIED MATTERS ACT, 2020
In other to commence business operations in Nigeria such as film production companies, record labels, management, marketing, etc in the entertainment industry, one must interface with Corporate Affairs Commission, the regulatory body that guides the registration of the business name, company or partnership, incorporated trustee .
The Copyright Act has helped in governing entertainment in Nigeria. This is so because it caters to literary and artistic work in general. The Act helps safeguard original work from infringement, unlawful production, and manipulation. This invariably means that once a person creates a body of work and copyrights the same, it is protected from being used or misused by the public without their consent.
CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999.
The Constitution is the grundnorm in Nigeria and is of general application in the country. The Constitution expressly provides that, any other law that is inconsistent with its provisions shall be null and void . This provision must be looked into and considered while going about the activities of the entertainment industry since everyone is bound by the provisions of the Constitution and the Constitution is the supreme law of the land. There are instances where artists’ works are restricted from being aired or released to the public for general consumption. This, in turn, serves as a violation of the right of the creator of the original work. This is because, the Constitution expressly provides for, and protects the fundamental human right of every citizen of Nigeria and beyond. Thus, a party who is aggrieved that his or her fundamental right is breached can approach the court for redress by virtue of section 46 of the Constitution of the Federal Republic of Nigeria, 1999.
A trademark protects labels, logos, signs, and designs, etc from reproduction, pirates, and misrepresentation. Many producers and artists are known for a signature brand or logo that distinctively identifies and makes them stand out. The law provides that the trademark is only valid for Seven (7) years after which, it may be renewed for another period of Fourteen (14) years, or else, it will be released to the public .
A contract is a legally binding agreement that recognizes and governs the rights and duties of the parties to the agreement. Contract law also regulates activities in the entertainment industry. For instance, when an artiste enters into a contract with a record label for the production of a song, such an agreement binds the parties base on the terms and conditions stipulated in the contract agreement. Therefore, where a party breaches any term of the contract, the innocent party is entitled to a remedy. This remedy could be in form of damages, specific performance, injunction, rescission of the contract, etc.
Tax law simply has to do with the assessment and payment of taxes. This tax could either come from Federal, state, or local authorities. They’re based on federal and state constitutions, laws, and regulations. Tax law involves understanding, implementing, and defending the payment or non-payment of taxes. Entertainment lawyers help their clients understand tax laws and conduct their affairs in a way that’s advantageous with regard to tax laws. When disputes occur, Entertainment lawyers help their clients assert their rights and protect their interests. The two major legislative enactments on taxation in Nigeria are the Personal Income Tax Act (PITA) and the Companies Income Tax Act (CITA) .
INTELLECTUAL PROPERTY LAW AND ENTERTAINMENT INFRINGEMENT IN NIGERIA.
An infringement of entertainment occurs when any other person without authorization does something which only the owner of the creative work has the right to do . This infringement has eaten deep into the fabric of Nigeria probably due to the widespread of technology. For instance, the Nigerian entertainment industry is pest with violators of the entertainment law. Artists in Nigeria have resorted to staging performances in big cities like the United States of America and the United Kingdom as their source of income since little or no income is gotten from the sale of compact discs as a result of piracy by the members of the public and the evolution of technology. Also, in Liberty Williams (a.k.a. Pupayannis) v. MTN Nigeria Communications Limited & Ors. On October 12, 2017, Musician, Pupayannis (the Plaintiff) filed a Suit at the Federal High Court in Abuja against MTN Nigeria Communications Limited and others. The subject of the suit was the Copyright Infringement of his song “Love is Everything”. In the plaintiff’s Statement of Claim, he alleged that over a while, his song has been used by MTN as a caller tune and the network provider has been collecting money for the caller tunes and had not compensated him for its use. The Plaintiff further contended in his statement of claim that he had a relationship with a record company, although, he did not give copyright to his past works including ‘Love is Everything’ to MTN, and the offer of the Plaintiff’s song for a fee to MTN subscribers or customers without his knowledge and consent amounted to copyright infringement. The Plaintiff in his relief prayed the honourable court to award the sum of two hundred million naira (N200,000,000) as general damages and one hundred million naira (N100,000,000) as aggravated and punitive damages .
No discussion of entertainment- infringement in the Nigerian industry can be had without mentioning the Blackface and Tuface duel. The beef’s most compelling detail, of course, is that both singers were formerly members of the three-man music group Plantashun Boiz, whose song soundtracked the Nigerian night-time scene in the early 2000s. Blackface, in 2016 accused his colleague in the entertainment industry of copyright infringement and claimed ownership of the songs African Queen and Let Somebody Love You. Tuface in light of this allegation instituted a libel suit against Blackface claiming the sum of fifty million naira only (N50, 000,000). However, the case never went further to be adjudicated in court, and the parties resorted to an out-of-court settlement at the Ikeja High Court Alternative Dispute Resolution Centre. In resolving the dispute, Blackface promised to desist from accusing Tuface of copyright infringement, and then, Tuface amicably agreed to give Blackface his due royalties which accrued from the songs. In Zain Nigeria Ltd and NUC v. TV Xtra Production the Federal High Court in 2020 sitting at Abuja ordered the National Universities Commission (NUC) and Zain Nigeria Ltd to pay the sum of seven million naira (N703 million) as damages to TV Xtra Production, a media company, for violating the Copyright Act and infringing on its copyright. The case surfaced when the TV Xtra Production’s CEO, Christian Ogodo, pitched a TV show named “University Challenge” to the Nigerian University Commission. Seven (7) days later, Ogodo was marvelled to come across a variation of the show airing on television, hosted by Nigerian University Commission and Zain, causing him to institute a copyright infringement suit for the violation of his copyright. In its defence Zain Nigeria decried “University Challenge” as not being Ogodo’s unique invention, claiming it had gotten the idea from the British Universities Challenge. The case was heard on its merit and Justice Inyang Ekwo, who heard and ruled on the case, thought otherwise.
In 2017 the now-late highlife deity Sir Victor Uwaifo accused the singers Simi and Jaywon of remixing his 1965 classic song Joromi without his permission. He was, of course, referring to the former’s song of the same title, off her Simisola album, and the latter’s single Jomi Joromi, both songs released in 2017. Uwaifo in his interview said he would not make it a court matter because he does not want the matter to escalate further. Jaywon was quick to denounce Uwaifo’s claim, asserting that his song was not a remix as the industry’s elder statesman had claimed. All three songs are united in theme, the plaintive wooing of a love interest. Beyond that, they are, on the sonic and lyrical level, as identical to each other as Nok terracotta is to mediaeval stained-glass art.
Chukwuemeka Ejekwu, more commonly known as Oga Sabinus plans to file a suit against Friesland and UAC Foods, the companies that make Peak Milk and Gala Sausage Roll respectively, to court over the infringement of his trademark and the use of his Intellectual Property. On May 24, Peak Milk used ‘Something Hooge’, a phrase popularized by Mr Funny, in one of their social media posts. The skit maker has threatened to slam Friesland and UAC Foods with a ₦1 billion and ₦100 million lawsuit respectively for the unauthorized usage of his trademark and likeness in their marketing materials. Sabinus, through his lawyer, Stanley Alieke stated emphatically that the phrase was his registered trademark and in the legal notice threatened to take legal action against the on failure to comply legal notice issued and served on them. Therefore, with a plethora of cases and instances enumerated here, what does this mean for creators and their IP?
This brings much-needed awareness to the topic of intellectual property of digital creators and creatives in the country and how seriously the is of infringement is enforced against an infringer. It also serves as a reminder to creators and personal brands to take their intellectual property seriously by protecting their trade symbols through the legal framework.
REMEDIES FOR ENTERMAINT INFRINGEMENT
Entertainment law is regulated by a multiplicity of laws. Its current structure cut across several areas of law due to the vast nature of the concept. Therefore, the remedy for entertainment infringement would vary based on the aspect of the law that was breached. We shall carefully highlight the remedies that would accrue to a party where any of the rights is breached based on the legal framework of entertainment in Nigeria.
With respect to copyright infringement, the court vested with the jurisdiction to hear disputes is the Federal High Court of Nigeria. And the body which has the power to enforce copyright infringement is the Nigerian Copyright Commission (NCC). The remedies of copyright infringement are further divided into civil and criminal.
The civil remedies available to a person whose copyright has been infringed upon and contract breached includes;
1. Conversion rights; The Copyrights Act in section 16 provides that all infringing copies of the works copyright subsists, or of any substantial part thereof, shall be deemed to be the property of the author or owner. Therefore, the owner by the order of the court converts the infringed copyright materials.
2. Damages (that is, monetary compensation): This could either be Special or General Damages. In an action for infringement of copyright, the author needs not to prove actual damage as damages are at large, that is, an award that has no exact measurement, as it is essentially compensation for non-economic or non-pecuniary loss. It could also include exemplary damages in certain instances and can inter alia be compensation for suffering and pain, injured feelings or loss of reputation. The infringement of copyright amount to damages to which the claimant is entitled to. With respect to a breach of contract, damages are also awarded against a party who has breached the terms of the contract. For instance, where an artiste enters into a contract with a record label on certain terms and conditions, a breach by any of the parties will entitle the innocent party to damages.
3. Injunctions (interim or interlocutory) restraining the person from further infringing on the copyright or further breach of contract. Types of injunctions obtainable in court are;
● An Interim injunction- an interim injunction is usually granted only in cases of urgency requiring immediate relief. It is made during and granted during the pendency of a suit or an event such as the hearing and determination of a motion on notice or until a named date.
● An interlocutory injunction- This type of injunction is granted pending the hearing and final determination of a case on the merits. It is very effective in copyright infringement, as it ensures that the subject matter maintains the status quo pending the determination of the substantive suit.
● Perpetual Injunction- otherwise known as the permanent injunction is a final relief as it ensures that the infringer never interferes or infringes with the subject matter again.
4. Inspection and seizure order: (similar to Anton pillar Injunction) this remedy gives the Copyright Owner the right of ingress into the premises of the infringer to inspect the infringing copies of work. It is a Court Order usually an application made by the Copyright Owner to the court by way of Motion Ex-parte. This order is granted for discovery and preservation of evidence where the infringer is likely to remove or destroy part away such evidence if notified, which would be grievous to the applicant’s case.
5. Account for profit- This is where the infringer of the work is made to account for the profit incurred in the case of infringement. The funds generated or made are returned to the creator of the work. This remedy is resorted to in cases where the infringer at the time of infringement was honestly not aware of the existence of the copyright.
6. Recession- This is a remedy for breach of contract between parties to a contract. Rescission allows a non-breaching party to terminate the contract as a remedy for a breach. Rather than seeking monetary damages, the innocent party can simply refuse to complete their end of the bargain. Rescission puts the parties back in the position they would have been in had they never entered into a contract.
Specific Performance- Specific performance is a type of remedy for violation of a contract in which a court expressly orders the breaching party to perform their end of the bargain. Monetary damages are typically favoured over specific performance as a remedy for breach of contract. This means that a court can make an order for a specific performance for an artiste against a record label in the entertainment industry. The law will provide a remedy to the innocent party as the Latin maxim expressly provides “Ubi jus, ibi remeduim”.
Copyright infringement also carries criminal liability with sanctions of fine and terms of imprisonment. The Nigerian Copyright Commission (NCC) is usually the prosecutor in action that has to do with copyright infringement. However, the fact a criminal action has been instituted against the infringer with penalties like fine and imprisonment, it does not deprive the copyright owner of his right to maintain a civil action against the infringer.
Where an offender can prove to the satisfaction of the court that at the time, he was committing the offence, he did not know and had no reason to believe any such work was an infringing copy of a copyrighted work or that the plate/master tape or equipment was not for the purpose of making infringing copies, then, he would not be liable for copyright infringement.
It is therefore recommended that;
1. A specialized entertainment Act should be established by the National Assembly. The Act should define and specify the various permissible activities of the industry. The Act should also inculcate taxation laws such as the Federal Capital Territory Entertainment Act thus ensuring an improvement in the Entertainment tax regime.
2. The unique difference between entertainment law and intellectual property law should be taken into consideration. Despite being similar, some differences exist between them. All works of Entertainment if appropriately packaged and registered are intellectual properties, however, not all intellectual property are works of Entertainment.
3. Due to the growth of the entertainment industry in recent times, accounting for 0.18 percent of the GDP of Nigeria in 2021 , it is paramount that there are established rules to regulate this new and unending revenue source.
4. The existing legal framework should be amended to tackle the challenges of the digital age. Section 2(1)(i) of the Copyright Act which states that Copyright shall be conferred on “an individual who is a citizen of, or is domiciled in Nigeria” should be amended to read “a human individual who is a citizen of, or is domiciled in Nigeria.
5. The copyright Act should be amended to adequately address issues relating to digital transmission and public performance over digital and internet platforms.
Intellectual property infringement is a parasite living off the sweat of the brow of the creator. Over the years, infringement has proved to be an economic and social threat affecting the Entertainment industry, revenue generation, etc giving Nigeria a bad name among others. Those involved in infringement need to be stopped. There is a need for change in the attitude of infringers in the entertainment industry.
It is also imperative that the legislature begin to look at enacting a specialized law as they did with energy, tax, and finance law, etc, and not just to leave the operation of the entertainment industry in the hands of multiplicity and oftentimes conflicting areas of law. This will add to the effective practice of this area of law, as well as, protect the economic resources which the entertainment industry recently possesses.
1. R. Chandra ‘Issues of intellectual property rights’ 2nd edn (Isha books, 2004)
2. G. A Garner ‘Black’s law dictionary, 7th edn (Thomson Reuters, 2014)
3. M. Dugeri ‘Entertainment law in Nigeria: A foundational analysis of the emerging trends, source, practice and precedents http://www. Researchgate.net/ publication
4. Arts, entertainment and recreation sector contribution to GDP in Nigeria 2019-2021 https://www.statistica.com/statistic/arts-entertainment-and-recreation-sector-contribution-to-gdp-in-Nigeria
5. K. N Osibor ‘Entertainment law in Nigeria: A torpid step in the right direction http://www.academia.edu
6. A. I Adeleye ‘Intellectual property right enforcement in Nigeria: Regulatory agencies to the rescue http://www.nlipw.com
7. C.C Esimone ‘intellectual property right and enforcement in Nigeria: A prop for music industry http://www.researchgate.net/publication
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