[Guest Post] Copyright as movable property: Constitutional issues with Nigeria’s Copyright Act 2022

The IPKat has received and is pleased to host the following guest contribution by Katfriend Seun Lari-Williams, PhD researcher in the fields of copyright and dispute system design at the University of Antwerp, regarding Nigeria's Copyright Act 2022 (which came into effect in 2023) and its constitutional reference to copyright as movable property. Here's what Seun says:

Copyright as Movable Property: Constitutional Issues with Nigeria’s Copyright Act 2022
by Seun Lari-Williams

Section 30 (1) of Nigeria’s new Copyright Act explicitly deems copyright as movable property "for the purpose of Chapter 4 of the Constitution". This new provision not only underscores copyright’s transmissibility but also imparts a fundamental rights dimension to copyright. This article scrutinizes the constitutional implications of this provision and the potential repercussions for copyright.

Is copyright movable property under Nigerian law?

Before the enactment of the new Act, the status of copyright as movable property under Nigerian law was uncertain, as the Nigerian Constitution lacks explicit definitions for "movable" and "immovable" property. Unfortunately, in cases like Musical Copyright Society of Nigeria Limited (MCSN) v. Nigeria Copyright Commission (NCC) (discussed here), where this could have been addressed, Federal High Court and the Court of Appeal sidestepped the question of whether copyright was movable or immovable property under the Nigerian Constitution. Further, while the Supreme Court, in its decision in Adeokin Records v MCSN, touched on what is meant by “owner and assignee of copyright”, its consideration was limited to the context of locus standi (discussed here), thus providing very little help on the question of whether copyright is property in the sense of Chapter 4 of the Constitution.

Movable Kat property...

However, MCSN argued that insofar as Section 11 of the former Act referred to copyright as a movable property, copyright falls within the property referred to and protected by the Constitution (noted here). This will be shown to be a misinterpretation, as Section 11 of the former Act explicitly states that copyright shall be transmissible as movable property, meaning that it can be transferred by assignment, testamentary disposition, or operation of law. It did not go as far as to classify copyright as constitutionally protected property.

The new Copyright Act to the rescue?

The uncertainty surrounding whether copyright is movable property seems to have been put to rest by the new Copyright Act, Section 30(1) of which not only explicitly deems copyright as movable property, but that too for the purpose of Chapter 4 of the Nigerian Constitution.

For reasons discussed below, I would argue that Section 30(1) of the new Copyright Act, cannot be used as a basis for deeming copyright to be movable property under the Constitution, as the provision is itself unconstitutional. However, even if this provision is found to be consistent with the Constitution, several critical questions arise that would need to be addressed.

The constitutionality of Section 30(1) of the Copyright Act 2022

The marginal note beside Section 30 (1) describes this provision as “assignment and licence”, supposedly being the equivalent of Section 11 (1) of the former Act. However, unlike the former provision, the new provision does way more than speaking to the fact that copyright can be transferred as movable property. It deems copyright to be movable property.

Let’s unpack both provisions.

Section 30 (1) of Nigeria’s new Copyright Act 2022 provides as follows:

(1) For the purpose of Chapter 4 of the Constitution of the Federal Republic of Nigeria 1999, copyright shall be deemed to be movable property and shall be transferable by way of assignment, testamentary disposition or operation of law.

The equivalent provision to the above, Section 11 of the old Copyright Act, provides:

(1) Subject to the provisions of this section, copyright shall be transmissible by assignment, by testamentary disposition or by operation of law, as movable property.
[emphasis added to highlight the differences]

On the face of it, indeed both the former and current “assignment and licenses” provisions appear to merely speak to the fact that copyright can be transferred as you would a movable property. However, closer examination reveals at least two significant differences. For one, the introduction of the word “and” shows in addition to gaining the transferability attribute of movable property, it must now be deemed movable property for the purpose of Chapter 4 of the Constitution, thus gaining other attributes/rights attached to movable properties as provided for under Chapter 4 of the Constitution. In other words, while the former regarded copyright as transmissible as movable property, the latter not only affirms this transferability but designates copyright as movable property.

Secondly, by referencing Chapter 4 of the Constitution, the new Copyright Act indirectly positions copyright as a human right. It effectively says that henceforth, when we read “movable property” in Chapter 4 of the Constitution, we must interpret it to include copyright.

While there may be advantages and disadvantages to this categorization (which I discuss), the issue here is whether the National Assembly is empowered to make such construction or interpretation of the constitutional rights. I argue that it is not and that any definition of the term “movable property” under the constitution to include a form of property that is generally termed intangible, can only be done through a constitutional amendment as provided in Section 9 of the Constitution. By this “deeming”, the new Act has attempted to expand the term beyond what could be said was reasonably within the contemplation of the drafters of the Constitution. Consequently, Section 30 of the Act runs ultra vires the constitution.

Another point to note is that copyright in Nigeria is a statutory right and not a constitutional right. This is not to say that copyright is not mentioned in the Constitution at all. It is, but it cannot be reasonably traced to Chapter 4. First, it can be traced to Chapter 2, which sets forth non-justiciable principles guiding state objectives. While Section 18(2) emphasizes the promotion of science and technology, Section 21 focuses on preserving Nigerian cultures and encouraging scientific studies. Against this background, the National Assembly is granted exclusive legislative powers over copyright (see Item 13). Lastly, copyright was mentioned in Section 251 of the Constitution, in granting the Federal High Court exclusive jurisdiction to hear copyright matters. Unlike the guarantees made under Chapter 4, copyright cannot arise as constitutional rights by reason of its mentions under Chapter 2, Section 251 or Item 13 under the Constitution. If the right to something depends on a contract, or a statute explicitly creating it (e.g., copyright), can one call such a constitutional right? I do not think so. See similar argument here made about the U.S. copyright law.

Consequences of deeming copyright as movable property under Chapter 4 of the Constitution

However, in the unlikely event that the court when prompted to, declares copyright to be indeed movable property under Chapter 4 of the constitution, either based on the interpretation of the Constitution or of the Copyright Act, this would extend all legal rights and limitations associated with movable properties under Chapter 4 to copyright. What are the practical implications of this?

Firstly, this raises the question of whether an infringement of copyright (i.e., the doing of any of the exclusive rights in Section 9 without permission) would henceforth be considered a violation of one’s fundamental human rights, and be subject to the fundamental rights enforcement procedure (as has been argued here).

Secondly, this would mean that copyright is now subject to the limitations associated with the right to property under Chapter 4 of the Constitution—namely compulsory acquisition. What are the implications of compulsory acquisition in this context? Would it automatically place works compulsorily acquired in the public domain or only transfer ownership to the government? There would also be the need to address how moral rights would operate in the context of a compulsory acquisition. Would these be abolished, or would the government assume this right should it exercise its power under Section 44 of the Constitution? Also, how would the government’s power to acquire and control copyright-protected works to be balanced with the right to freedom of speech? As someone asked: what would a government with the power of compulsory acquisition of copyright-protected works have done to the works of controversial authors such as Nigerian activist, Ken Saro-Wiwa?

Admittedly, a government’s compulsory acquisition of the copyright in a work could also serve the positive purpose of free dissemination of works with key cultural or educational significance. However, this should already be achievable through the copyright exception of compulsory licenses, a long-existing limitation under the Nigerian copyright jurisprudence (See Sections 31, 32, and 35).

Conclusion

While probably intended to bolster copyright protection, the deeming of copyright to be movable property under Nigeria's Copyright Act raises constitutional concerns that may undermine Nigeria's copyright regime.