Nigeria amends its Copyright Act to ratify outstanding copyright treaties and address other issues

Last week, Nigeria’s President signed the Copyright Act 2022 which repeals the Copyright Act of 2004 (the old Act). The Copyright Act 2022 as previously reported here on The IPKat is aimed inter alia at protecting the rights of authors and providing appropriate limitations and exceptions to guarantee access to creative works.

Some highlights of the Copyright Act 2022 include:

Mere data explicitly excluded from copyright protection: Section 2(3) of the Act declares "mere data" as ineligible for copyright protection alongside ideas, procedures, processes, formats, official texts, etc. However, "mere data" (or "data") is not defined in the Act leaving one to wonder if it includes or excludes "data" as used in text and data mining, for example.

Audiovisual works as opposed to cinematograph films: The Act does not list cinematograph films as part of the categories of protectable subject matter. Instead, audiovisual works are now part of protectable subject matter. See section 2(1)(d) of the Act. Audiovisual work is defined as 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 and irrespective of the nature of the material on which the visual images and sounds are carried and includes the sound track, but does not include a broadcast". This aligns with (but is not similar to) the definition of "audiovisual fixation" and 'audiovisual work' in Article 2 of the Beijing Treaty and proposed section 1(1) of South Africa's Copyright Amendment Bill, respectively.

Right of communication to the public applicable to all works: This right defined as "making a work or a performance available to the public by wire or wireless means in such a way that members of the public may access the work or performance from a place and at a time individually chosen by them" is now part of the exclusive bundle of rights granted to authors and/or copyright owners. 

Notice and takedown provisions: Part VII of the Act makes provisions regarding copyright-protected materials in the online environment including notice and takedown procedures, liability exemptions for intermediaries/online service providers and blocking of infringing sites. These provisions are similar to those in Kenya’s Copyright Amendment Act 2022 which was successfully used in Multichoice Kenya Limited v Safaricom Plc & others to compel a service provider to block access to sites with infringing content. 

Moral rights transmissible by testamentary disposition: While moral rights are not transmissible during the life of the author, they are transmissible upon the author's death by testamentary disposition or operation of law. See section 14(3). 

Broader but hybrid fair dealing exception: The Act specifically provides for copyright exception for certain fair dealing purposes but uses the words, 'such as' suggesting that other purposes could be permissible if there is fairness in the dealing. [The inclusion of “such as” here did not cause much, if any, furore in Nigeria unlike in South Africa where the proposal to have “fair use” instead of “fair dealing” alongside “such as” in listing permitted activities under the fair use provision has continued to generate strong opposition]. However, instead of 'research' as found in the old Act, the Act now specifically qualifies research by adding 'non-commercial'. See section 20 of the Act. Whether this means that commercial research is excluded or that commercial research will encounter greater hurdle to establish fairness of the dealing remains to be seen. Provision is also made for factors that may be considered in determining whether dealing with a work is fair. 

Ratification and domestication of the Marrakesh Treaty: The Act contains exceptions that address access by people with disabilities to works that are protected by copyright and related rights. Unlike Kenya (and South Africa if its proposed amendment becomes law), the exceptions do not go beyond the Treaty to include other forms of disabilities beyond visual impairment and print disability. See the definition of “beneficiary person” in section 26(7)(d). 

There are several other interesting provisions of the Copyright Act 2022. We wait to see how its provisions will be applied, utilised and/or enforced.