- Winners of IPKat‘s IP Limmerick competition have been announced and not only are the entries witty, they also provide concise information on IP and related matters from around the world.
- In case you missed it, the Nigerian Copyright Commission’s website is back up and along with the revamped website comes the Commission’s Q1, 2016 Report. According to the report, the proposed amendment of the Copyright Act is complete and waiting to be passed into Law. You would recall that submissions and comments were invited on the Draft Copyright Bill, 2015 between late last year and early this year.
- From UK Intellectual Property Office comes ‘IP and BREXIT: The facts‘. You can catch up on other BREXIT related articles here.
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
- AVRS commences licensing of users of Audio – Visual Content: In line with its mandate, the Audio Visual Rights Society of Nigeria (AVRS) has begun issuing licenses to individuals and organisations for the commercial use of works belonging to its members. These include hotels, advertising agencies, telecommunication and transport companies, airlines and relevant airport facilities, fast food confectioneries, hospitals, and banks. More details here and here. Contact details of AVRS can be found on our directory page here.
- MTN responds to NCC’s allegations: These are troubled times for MTN Communications Nigeria. Early February, NCC’s Director of Prosecution, Abdul Ter Kohol alleged that Mr. Ferdi Moolman (CEO, MTN) had been evading service of court papers and refused to honour the invitation of NCC investigators. MTN Executive, Amina Oyagbola, however recently pointed out that Moolman was at no material time to the circumstances, the CEO of MTN. She also added that the matter has been resolved amicably. MTN is being sued by Dovie Okson Omenuwoma for unauthorised use of some of his songs as caller tunes and ringtones.
- Accession by OAPI* to the Singapore Treaty: Following the deposit of OAPI’s instrument of accession to the Singapore Treaty on the Law of Trademarks, the Treaty entered into force with respect to OAPI on February 13, 2016. With the accession comes a harmonisation of administrative procedures. Nevertheless, In accordance with Article 29 of the Singapore Treaty:
“The provisions of Article 6 of the said Treaty will not be applicable to OAPI. According to the said provisions, where goods or services belonging to several classes of the Nice Classification have been included in one and the same application, such an application shall result in one and the same registration.
The provisions of Article 19(2) of the Treaty will not be applicable to OAPI. OAPI requires the recordal of a license as a condition for any right that the license may have under the provisions of the Bangui Agreement, to join infringement proceedings initiated by the holder or to obtain, by way of such proceedings, damages resulting from an infringement of the mark which is the subject of the license”.
- Information Minister Sacks Head of NBC and others: In a recent meeting with the heads of parastatals under the supervision of the Ministry of Information and Culture, the Minister (Lai Mohammed) communicated the decision of the Federal Government to disengage them. The affected parastatals and Chief Executives are Ima Niboro – News Agency of Nigeria (NAN), Emeka Mba – Nigerian Broadcasting Commission (NBC), Mike Omeri – National Orientation Agency (NOA), Sola Omole – Nigerian Television Authority (NTA), Ladan Salihu – Federal Radio Corporation of Nigeria (FRCN) and Sam Worlu – Voice of Nigeria (VON).
*African Intellectual Property Organization