A while back, a colleague expressed her interest in registering some of her literary works under the Nigerian Copyright e-Registration System (NCeRS) to which the Lady mumbled some incoherent words of discouragement. Why? How about a quick introduction to the NCeRS.
The establishment of the NCeRS has its backing in Section 34 (1) (e) of the Nigerian Copyright Act, which charges the Nigerian Copyright Commission (NCC) with the responsibility of maintaining an effective data bank on authors and their works. Unlike the US, protection of copyright in Nigeria is not subject to formalities such as mandatory deposit. Section 3 of the Draft Copyright Bill 2015* reiterates this point. The Draft Bill, however, proposes to introduce a register of works under Section 73:
(2) Without prejudice to the sections conferring copyright under this Act, all works eligible for copyright protection may be registered in the Register upon an application made in the prescribed form by or on behalf of the author, owner, assignee or exclusive licensee of the work. (emphasis mine)
Promises (as contained on the NCeRS website)
The certificate of registration and other documents relating to the application for registration can be used in court as evidence of ownership or proof of original content of the work.
The NCeRS offers additional advantage of:
- Documentation of your creation from any part of the world;
- Full protection of copyright in all countries signatory to the Berne Convention, and other International Instruments which Nigeria is signatory;
- Searchability of the NCeRS for information relating to any copyright work;
- Flexible payment for services offered by the Commission; and
- Efficiency and prompt delivery for service requested.
The Lady’s Experience with the NCeRS
The Lady has dealt with the NCeRS in various capacities. The certificate issued is merely prima facie evidence of the facts contained on it. It does not grant copyright in any form and does not guarantee ownership of copyright in the work referred to. In other words, the NCC can only guarantee that you have claimed copyright ownership of the work concerned. It cannot give an opinion as to whether or not you actually own the work. So, if there was an allegation of infringement and you chose to tender the certificate in evidence and invite the NCC, the Commission is merely going to raise its hands and say ‘Well, (s)he informed us of their claim to copyright in this work, but we cannot confirm whether or not this is true’. Does not do much for your case if you ask the Lady.
Hence, the Lady’s response to her colleague. Ownership of copyright is tricky to prove, hence the presumption of ownership in the (registered) author.
Second thoughts on the NCeRS
A recent foray into the world of finance and IP reveals the NCeRS may provide a good repository system after all especially where advantage (c) is concerned. Section 11 of the Act provides for the grant of an assignment or licences in favour of copyrighted works. Whereas a non-exclusive licence may be created orally, written or inferred from conduct, the grant of an exclusive licence or an assignment can only be valid if put into writing. The Act is however, silent on the perfection and enforcement of the ensuing agreement created, perhaps because copyright is an unregistered right.
Section 197 of the Companies and Allied Matters Act (CAMA), however, provides for the registration of charges on goodwill, patents or a licence under a patent, trademarks, copyright or a licence under a copyright. Failure to do so within 90 days of creation will render such charge void and immediate repayment of the money secured. The Act further allows for the entry of satisfaction of charges relating to a registered charge in the register as well as the rectification of the register resulting from an omission or misstatement as directed by the court (Sections 204-205).
Thus, if you were to deal with a company’s IP, a search at the Corporate Affairs Commission would reveal any charges over their IP. Good for the companies. What about individually owned IP? The Copyright Act is silent on registration of assignment or licences with the NCC. So also the NCeRS, although it claims that ‘the information and data contained in the Notification database offers reliable rights management information to members of the public and prospective licensees to the work’.
The absence of a provision on registration of security transactions over copyright makes it difficult to conduct due diligence over the work in question. This is especially so for individually owned IP. NCC should consider encouraging the registration of security transactions over copyright on the NCeRS platform. (If the Lady recalls accurately, there might be a provision on the application form for this, but this needs to extend beyond security transactions at the point of registration.)
Seeing as the Lady has digressed into the subject of copyright as an asset, she may as well end with an extract from her thesis:
When one considers that Section 197 of CAMA retains its essence from 1990 when the Act was originally enacted, the position asserted earlier about the omission of security interests (SI) in the Copyright Act (CA) during the 1999 amendment becomes more glaring. It is possible that the inclusion of SI in the CA was overlooked in subsequent amendments since the CAMA already makes provision for it.** The impact of this on natural persons owning copyright and seeking to collateralize it was therefore overlooked as CAMA relates only to artificial persons – companies duly incorporated under the Act. As we will see, this poses no problem under the NCEILS***, as a Certificate of Incorporation is one of the required documents from applicants. In other words, the place of an independent producer is still not contemplated in the scheme of things. Perhaps, there is an assumption that producers must as of necessity, own production companies.
** The Draft Copyright Bill is also silent on SI.
***Nigerian Creative and Entertainment Industry Stimulation Loan Scheme