Section 15 of the Copyright Act: Legal Basis of Illegal Downloads

Illegal Download

All over the world, music exceeds the thresholds of entertainment in that it is one of the very cores of the cultural legacy of Nigerians; despite racial or religious experiences, music connects people.

Music as an intellectual property falls within the range of copyright protection as provided by the Berne and Paris Conventions about the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement.)

Illegal Downloads/ Piracy

Arghhh! It’s the pirate life for me!

Long before the advent of streaming sites like; Netflix, Hulu, Amazon Prime and the likes, Aba movies containing 20 movies all jammed into one CD kept us entertained. It didn’t matter that some of those movies were badly dubbed (shadows of people walking around) or the audio was muffled, as long as we got to watch 20 movies for N100 or N200.

As we discovered the next best thing since slice bread, the internet, we slowly gravitated from purchasing pirated movies to illegally downloading them ourselves. No more going to the junction to purchase a badly dubbed movie when we could download something of higher quality in the comfort of our homes.

Due to the rise in illegal downloads, entertainers and the likes were robbed of their source of income since people would rather download stuff for free (awoof) than pay the actual price.

In a way, this birthed streaming services. With streaming services, people no longer need to pay exorbitant fees to watch a movie or download music or watch a video. All they need to do, is subscribe and watch or listen.

Illegal Downloads can be defined as the act of saving copyrighted audio files into a device from the internet in a manner not recognized by the creator. Going from the above definition, it is clear that the main ingredient which makes downloads illegal is the lack of consent by the copyright owner. If a copyright owner intends that his audio file be downloaded from a certain website or streaming app, then the resulting download will not be seen as illegal.

Importance of Copyright

Why is Copyright important?

It is important because it provides a frame for the protection of rights of original authors – artistes in this case, who comprise exclusive rights holders of their musical works. This way, if an artist or entertainer believes his intellectual property has been breached, such person will have a right of action in court against whomever is causing the breach.

Copyright Infringement

According to Section 15 of the Copyright Act:

(1) Copyright is infringed by any person who without the license or authorization of the owner of the copyright

(a) does, or causes any other person to do an act, the doing of which is controlled by copyright; 

 (b) imports or causes to be imported into Nigeria any copy of a work which, if it had been made in Nigeria would be an infringing copy under this section of this Act; 

 (c) exhibits in public any article in respect of which copyright is infringed under paragraph (a) of  this subsection; 

 (d) distributes by way of trade, offers for sale, hire or otherwise or for any purpose prejudicial to the  owner of the copyright, any article in respect of which copyright is infringed under paragraph (a) of this subsection; 

 (e) makes or has in his possession plates, master tapes, machines, equipment, or contrivances used for the purpose of making infringed copies of the work;

(f) permits a place of public entertainment or business to be used for a performance in the public of the work, where the performance constitutes an infringement of the copyright in the work, unless the person permitting the place to be so used was not aware and had no reasonable ground for suspecting that the performance would be an infringement of the copyright; 

(g) performs or causes to be performed, for trade or business or as a supporting facility to a trade or business, any work in which copyright subsists. 

(2) Notwithstanding subsection (1) of this section, or any other provision of this Act, where any work in which copyright subsists, or reproduction of any such works is comprised in- 

(a) the archives stored in the National Archives established under the National Archives Act; or 

(b) the public records of a State, being records for the storage or custody of which provision is made by law, the copyright in the work is not infringed by the making or the supplying to any person of any reproduction of the work in pursuance of that Act or law. 

Implication of Section 15 of the Copyright Act

This means anyone that anyone who owns, sells, markets, imports, trades, hire etc. the artistic work of anyone protected under the Copyright Act has infringed (breached) the right of the owner of that artistic work.

Sub section f of Section 15 also creates liability for people who own public places or business and allow a person to perform the artistic work of someone protected by the Copyright Act.

Example; If Schola is the owner of a bar and Keren performs a song by Adekunle Gold (who I believe is protected under the Copyright Act) then Schola is liable and has infringed the rights of Adekunle Gold. Both Schola and Keren in this scenario.

The exception is if Schola was unaware and had no reasonable way of knowing that Keren’s performance would be an infringement (breach) of Adekunle Gold’s rights.

Action for Infringement

While in Section 16:

16. Action for infringement

(1) Subject to this Act, infringement of copyright shall be actionable at the suit of the owner, assignee or exclusive licensee of the copyright, as the case may be, in the Federal High Court exercising jurisdiction in the place where the infringement occurred; and in any action for such an infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as is available in any corresponding proceedings in respect of infringement of other proprietary rights. 

Who Can Sue?

Section 16 provides that the;

  1. The Owner of the artistic work;
  2. The Assignee (Whomever has transfer rights);
  3. Exclusive Licensee of the Copyright (This is usually the distribution company)

Can bring an action in court against whomever infringed or breached the Copyright.

Which Court has Jurisdiction?

The Federal High Court has exclusive jurisdiction to try Copyright matters. Section 251 (f) of the 1999 Constitution

Compensation for Infringement/ Breach

Infringement of Intellectual Property and its Available Remedies

Conclusion

Today, Intellectual Property (IP) is forging a disruption in the music business growth in digital technology. Some scholars argue that the disruption is favorable while some lean into the alternative view. There has since been a shocking increase of infringement of Intellectual Property Rights (IPRs) in musical works via illegal downloading and although Illegal Download is frowned upon, some artists or people may argue that it is beneficial in a way because it promotes their content.

The Infringement of Copyright in Nigeria is always a point of controversial discussion. With the provision of the Copyright Act for the protection of all rights to the handiwork of creatives, Section 15 of the same law provides against the Infringement of Copyright.

What is the Way Forward?

Creatives, Copyright owners, and assignees need to be more proactive in this regard. It is advised that they act fast to stop the proliferation of their work on mediums to which they do not consent to.

Written by Chuks and Kiva

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