Introduction
The Nigerian Copyright Act 2022 (hereafter “the 2022 Act”) represents a seminal legislative intervention in the domestic intellectual property regime. Coming into effect on 17 March 2023, the Act repealed the Copyright Act 1988 (Cap C28, Laws of the Federation of Nigeria 2004) and its subsequent amendments. This paper undertakes a critical analysis of the major substantive changes introduced by the 2022 Act, examining their juridical foundations, practical implications, and potential interpretive challenges. The analysis adopts a comparative approach, situating each reform against the corresponding provisions of the 1988 Act.
1. Terminological Modernisation: From Cinematograph Film to Audiovisual Work
A notable lexical shift is the replacement of “cinematograph films” (s. 1(1)(d) of the 1988 Act) with “audiovisual works” (s. 2(1)(d) of the 2022 Act). While s. 51 of the 1988 Act defined cinematograph films by reference to fixation on celluloid, s. 108 of the 2022 Act adopts a technology-neutral definition: “the aggregate of a series of related visual images with or without sound, which is capable of being shown as a moving picture by means of a mechanical, electronic or other device … irrespective of the nature of the material on which the visual images and sounds are carried.”
This revision is academically significant as it shifts the criterion of eligibility from the medium of fixation (celluloid film) to the nature of the work itself. The 2022 Act thus accommodates evolving digital formats without necessitating further legislative amendment.
2. Eligibility Exclusions: Industrial Designs and the Problem of Legislative Drafting
Section 2(6) of the 2022 Act excludes from copyright eligibility any artistic work intended by its author to be used as an industrial design as defined under “the pattern design”. This provision re-enacts s. 1(3) of the 1988 Act, which referred to “a model or pattern to be multiplied by any industrial process”.
The 2022 Act substitutes the latter phrase with “industrial design”, thereby aligning the copyright regime conceptually with the Patents and Designs Act. However, the draftsman erroneously referenced “the pattern design” instead of the “Patents and Designs Act”. This is a textual error that renders the cross-reference unintelligible. It is submitted that courts, applying the principle of ejusdem generis or by treating the words as falsa demonstratio, may disregard the erroneous reference and rely on the definition of industrial design under the Patents and Designs Act.
3. Codification of the Idea-Expression Dichotomy
Section 3(a) of the 2022 Act codifies the common law principle that copyright does not subsist in ideas, procedures, processes, systems, methods of operation, concepts, principles, discoveries, or mere data. This provision formalises the rule in Ladbroke (Football) Ltd v. William Hill (Football) [1964] 1 All ER 465 Ltd into Nigerian statutory law. Its practical effect is to foreclose litigation predicated on copyright in television programme formats or business concepts, claims that had recently emerged in Nigerian jurisprudence. The provision operates in tandem with s. 2(2), which requires fixation in a material medium as a precondition for eligibility.
4. Exemption of Official Texts and State Insignia
Sections 3(b) and (c) exclude from copyright eligibility the official texts of legislative or administrative matters, as well as state symbols including flags, coats of arms, anthems, and banknotes. These exceptions qualify the general rule in s. 7 (re-enacting s. 4(1) of the 1988 Act), which vests copyright in works made by or under the direction of the government. Without these exceptions, the government could theoretically assert copyright over legislation itself, an absurd outcome antithetical to public access and the rule of law. The reform thus serves a fundamental constitutional purpose.
5. Abolition of Formalities as a Prerequisite
Section 4 explicitly provides that eligibility for copyright shall not require any formality. This provision did not appear in the 1988 Act and is likely a response to the creation of a voluntary registration system under s. 87. By clarifying that registration is not obligatory, the legislature aligns Nigerian law with Article 5(2) of the Berne Convention for the Protection of Literary and Artistic Works, which prohibits formalities as a condition for the enjoyment of copyright.
6. Revised Jurisdictional Criteria for Broadcast Copyright
Section 6(c) confers copyright on broadcasts transmitted from Nigeria or by a broadcasting organisation with its headquarters in Nigeria. Under the 1988 Act, broadcast was not eligible for copyright by virtue of first publication in Nigeria. The new provision adopts a hybrid territorial-corporate test. Notably, s. 108 defines “broadcasting organisation” widely as any authority established under any law in Nigeria or elsewhere providing broadcasting services for public reception. Thus, a foreign entity may qualify solely by having its headquarters in Nigeria, without incorporation under Nigerian law.
7. Omission of Copyright for Works First Published by International Organisations
Section 8 re-enacts s. 5 of the 1988 Act but omits the conferment of copyright on works first published by the United Nations, its specialised agencies, the Organisation of African Unity (now African Union), and ECOWAS. The rationale for this omission is unclear from the text. It may reflect a policy decision to restrict the scope of automatic protection for international organisation works, or an oversight. This lacuna merits further legislative clarification.
8. The Right of Commercial Distribution: Rental and Lease Excluded
Sections 11 and 12 enumerate the acts controlled by copyright in audiovisual works and sound recordings respectively. Unlike s. 6(1)(c)(iv) and s. 7(1)(b) of the 1988 Act, the 2022 Act does not reserve to the copyright owner the exclusive right to authorise commercial rental, hire, or lease. Section 11(g) and s. 12(f) only reserve the right to distribute copies to the public for commercial purposes through sale or other transfer of ownership. Consequently, the rental of lawfully made copies does not constitute infringement, although the rental of pirated copies remains criminal under s. 44(1)(a) and (2)(a) and (d). This represents a significant narrowing of the distribution right.
9. Cable Operators and Broadcast Copyright
Section 13(3) provides that cable operators who merely retransmit a broadcast are not entitled to any exclusive rights of a copyright owner in a broadcast, except to control still photography from a television broadcast. This provision appears superfluous because s. 108(1) now defines “broadcast” exclusively as transmission “by wireless means”, thereby excluding cable and wire transmissions from the definition altogether. It is submitted that s. 13(3) adds nothing to the law and may be regarded as surplusage.
10. Joint Remuneration Right for Performers and Sound Recording Owners
Section 15 introduces a novel right: both the performer and the owner of copyright in a sound recording are jointly entitled to remuneration for the commercial publication of the recording via wire or wireless means enabling on-demand access. The relative shares are to be agreed between the parties or, failing agreement, determined by the Nigerian Copyright Commission. This provision creates an unwaivable right to equitable remuneration, similar to Article 15 of the EU Rental and Lending Rights Directive (2006/115/EC).
11. Extension of Droit de Suite
Section 17(1) extends the droit de suite (resale royalty right) beyond graphic and three-dimensional works (as under s. 13 of the 1988 Act) to all artistic works, manuscripts of literary works, and musical compositions. The scope of protected transactions remains public auction or sale through a dealer, regardless of method. This expansion aligns Nigeria with Article 14 of the Berne Convention, though implementation may require regulations on royalty collection and distribution.
12. Exceptions for Computer Program Reproduction and Adaptation
Section 20(2) permits, without the copyright owner’s consent, the reproduction or adaptation of a computer program where: (a) necessary for its operation; (b) for archival purposes or replacement of a lost or damaged original; or (c) necessary for the maintenance or repair of a machine lawfully containing the program, provided that the copy is destroyed after repair and only the necessary parts are accessed. These exceptions mirror those in the EU Software Directive (2009/24/EC) and provide legal certainty for lawful users.
13. Expanded Library and Archive Exceptions
Section 25 empowers archives, libraries, museums, and galleries to make and distribute copies of copyright works for non-commercial purposes, including for collection, lending to users, and on-premises private study and research. Unlike the 1988 Act, there is no restriction based on the age of the work or the number of copies. This potentially permits the digital lending of newly published books via library websites, provided the loan is free. This broad exception appears to fall foul of the three-step test in Art. 9(2) of the Berne Convention to which Nigeria is a party. A Nigerian court will however not invalidate the provision, as the Convention has not been domesticated as a Nigerian law.
14. Access for Visually Impaired Persons
Section 26 permits government and non-profit institutions to make and supply copies of literary or artistic works in accessible formats to blind, visually impaired, and print-disabled persons without prior permission, provided they have lawful access to the work. This provision implements the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, to which Nigeria is a party.
15. Compulsory Licensing for Musical Works
Section 27 provides that copyright in a musical work is not infringed by a person who makes a recording where: (a) a previous recording had been made and imported with the owner’s consent; and (b) the person sought permission, was refused, and voluntarily paid a prescribed royalty. An interpretive difficulty arises from the phrase “recording of a musical work”, as a musical work (as notation) is not audible. The draftsman likely intended “recording of a performance of a musical work”. Furthermore, s. 27(5)’s reference to “previous records” uses “record” in the physical sense (vinyl disc), which is anachronistic in the digital age and may create interpretive uncertainty.
16. Ownership of Copyright in Employment and Commissioned Works
Section 28(1) vests copyright initially in the author. Section 28(2) provides that for works created in the course of government employment (or with an agency or international organisation), copyright vests in the employer in the absence of agreement. However, the section omits to specify ownership where a work is created under a contract for services (independent contractor). By operation of s. 28(1), copyright therefore remains with the independent contractor. Significantly, the former rule in s. 9(3) of the 1988 Act—vesting copyright in newspaper proprietors for works by employees—has been removed.
17. Prohibition of Compulsory Acquisition without Compensation
Section 30 deems copyright to be movable property for the purposes of Chapter 4 of the 1999 Constitution (fundamental rights). Consequently, any compulsory acquisition of copyright by the government must comply with s. 44 of the Constitution, requiring prompt and adequate compensation. This provision constitutionalises copyright protection against expropriation.
18. Compulsory Licences for Abuse of Dominant Position
Section 35 grants the Nigerian Copyright Commission broad discretionary power to issue compulsory licences to rectify “abuse of a dominant market position” or to “promote public interest”. Neither term is defined. The Commission may grant a licence even without an applicant showing unreasonable terms, if a national emergency or extreme urgency exists. While s. 35(3)(a) requires judicial review, the broad discretion creates potential for administrative overreach and may raise compatibility issues with the TRIPS Agreement (Art. 31).
19. Presumptions in Favour of Registered Works
Section 43 raises presumptions of copyright subsistence, authorship, and publisher/producer identity, but only for works registered under s. 87 (the voluntary Register of Works). Under the 1988 Act, these presumptions applied to all works in infringement actions. The new limitation may disadvantage unregistered works, even though registration is not mandatory. Moreover, because s. 87 does not prescribe a time limit for registration, two persons could register the same work at different times, rendering the presumptions mutually unavailing.
20. Criminal Penalties and Anti-Piracy Measures
Part IV of the 2022 Act substantially increases penal sanctions. For primary infringers (s.44(2)), the fine is now ₦10,000 per copy (formerly ₦1,000) with a minimum imprisonment of five years. For secondary offenders (s. 44(3)), the fine is ₦10,000 per copy with a minimum of three years’ imprisonment. Section 44(9) empowers the Commission to accept payment in lieu of prosecution, up to double the minimum fine. Section 46(4) permits forfeiture of a corporate offender’s assets unless proven not to be proceeds of crime—a severe deterrent.
21. Anti-Circumvention and Technological Protection Measures
Section 50 criminalises the knowing circumvention of technological protection measures (TPMs), as well as the manufacture, import, or sale of devices or services designed to circumvent TPMs. Section 52(3) imposes a fine of ₦1,000,000 or at least five years’ imprisonment for such offences. These provisions implement the WIPO Copyright Treaty (WCT) obligations but may raise concerns about overprotection and the preservation of lawful exceptions.
22. Online Infringement and Notice-and-Takedown Regime
Sections 54–61 establish a detailed notice-and-takedown system. Under s. 55(1), service providers must immediately remove infringing material upon notice from the copyright owner. Non-compliance renders the provider liable for breach of statutory duty and infringement (s. 55(6)). Section 58 exempts providers from monetary liability if unaware of infringement, deriving no financial benefit, and acting expeditiously to remove infringing material. Section 61 empowers the Commission to block access to infringing content directly or with assistance (e.g., from the Nigerian Communications Commission). This creates a parallel administrative blocking power outside judicial supervision.
23. Performer’s Rights: Substantial Expansion
Sections 63–69 comprehensively expand performer’s rights. Section 63 grants performers exclusive control over recording, reproduction, sale, broadcasting of unfixed performances, rental and lending, and making available by wire or wireless means. Section 66 introduces performers’ moral rights (attribution and integrity), which did not exist under the 1988 Act. Section 69 provides that where a performer consents to recording in an audiovisual work, the performer is deemed to have granted all performer’s rights to the author of that work, though the performer retains a share of broadcasting remuneration. This deemed transfer is a pro-production provision that may disadvantage performers.
24. Expressions of Folklore
Sections 70–77 protect expressions of folklore. Unlike the 1988 Act, criminal liability under s. 76 attaches only to intentional violations for commercial purposes. Fines are increased: individuals face a minimum of ₦100,000 and at least one year’s imprisonment; corporate bodies face a minimum fine of ₦2 million.
Conclusion
The Nigerian Copyright Act 2022 represents a modernisation of domestic copyright law, incorporating technological neutrality, international treaty obligations, and expanded exceptions for public interest uses. However, the Act contains drafting errors (s. 2(6)), conceptual inconsistencies (s. 27’s “recording of a musical work”), and potentially overbroad administrative powers (s. 35 and s. 61). Judicial interpretation and, where necessary, legislative amendment will be required to resolve these issues. The Act’s balance between rightsholder protection and user access—particularly in the digital
environment—will likely shape Nigerian copyright jurisprudence for decades to come
Author:
Obatosin Ogunkeye
(Managing Partner)
