No Protection for International Works Under Nigeria’s Copyright Act?: NCC Clears the Ambiguity

Large copyright sign made of jigsaw puzzle pieces
Large copyright sign made of colorful jigsaw puzzle pieces, isolated on a white background in landscape mode and with plenty of white space on the right side.

The Nigerian Copyright Commission (the “Commission”) issued a public notice in the wake of the Court of Appeal’s (Lagos Division) rendering in Microsoft Corporation v. Franike Associates Ltd., which suggested that copyrights in works of U.S origin are unprotected under the Nigerian Copyright Act (the “Act”).

In Microsoft Corporation v. Franike Associates Ltd., Microsoft sued the respondent at the Federal High Court, seeking a declaration that the respondent infringed its copyright in the “Windows” software, and an order restraining the respondent and its agents, privies, or employees from infringing the copyright in the mentioned software and various other products.  The respondent subsequently filed a motion seeking various orders, one of which was an order striking out the suit for lack of jurisdiction.  The Court obliged, stating that it had no jurisdiction to make a determination on the matter pursuant to s.5(2) of the Act.  The Court of Appeal reaffirmed this decision, asserting that the lower court lacked jurisdiction since Microsoft neither pleaded nor presented any certificate from the Commission, attesting to the fact that the U.S is party to an obligation in a treaty or other international agreement to which Nigeria is also a party.

The commission, which seemingly disagrees with the decision of the Court, sought to avoid doubt and reaffirm that in addition to works authored by Nigerians and published first in Nigeria, the Act extends protection to works from over 165 countries, including the U.S that are members of the Berne Convention and other international treaties or agreements which Nigeria is party.   Furthermore, by virtue of the United States being party to the obligations arising from the Universal Copyright Convention, the Berne Convention and the Agreement on Trade-related Aspects of Intellectual Property, works of authors citizen of, domiciled in, or incorporated under the laws of the United States will be entitled to protection under the Act.

In its concluding remarks, the commission stressed its commitment to its obligations under international treaties, distancing itself from the Court’s position. The decision will likely be appealed and with the Commission having a clear stance on the matter, it will be interesting to witness its involvement in future proceedings.

Photo Credit, rwkvisual

About: Tracy Ayodele

Tracy Ayodele is a Canadian lawyer, called to the Bar of Ontario, and a graduate of Osgoode Hall Law School. She has a keen interest in IP policy, social innovation and the intersection of technology, development and start-up culture in emerging economies. She is a spirited legal researcher and writer, and co-authored “Hot-tubbing in Canadian Patent Litigation: A Preliminary Assessment” published in the Intellectual Property Journal.

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2 thoughts on “No Protection for International Works Under Nigeria’s Copyright Act?: NCC Clears the Ambiguity”

  1. vnzomo says:

    Thanks for highlighting this case.

    NCC’s public notice was classy and very diplomatic given the gross misinterpretation of the Copyright Act by the High Court and Court of Appeal.

    PS: I’ve discussed this case here: http://ipkenya.wordpress.com/2012/07/11/finding-a-balance-in-software-copyright-litigation-microsoft-cases-in-nigeria-and-kenya/

    • Tracy Ayodele says:

      Thanks for your response!

      In addition to its class and diplomacy, the public notice issued by the NCC was extremely decisive and unequivocal in its endorsement of Nigeria’s commitment to international treaties and agreements. I’m glad the ambiguity has been cleared by the NCC, but I’m curious to see how courts will handle similar cases in the future.

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