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PIRACY: REALITY CHECK AND THE WAY  FORWARD

INTRODUCTION

Piracy is criminal violation of copyright and it includes any of the following:

Making or causing to be made for sale, hire or for purposes of trade or business an infringing copy of a work in which copyright exists.

Importing or casing to be imported into the country any work which if it had been made in Nigeria will be an infringing copy.

Making, causing to be made or having in possession any master tape equipment or contrivance for purpose of making infringing works.

Selling or hiring any infringing copy of a work which copyright subsists.

Distributing or having in possession an infringing work.

Piracy constitutes a serious threat to the sustenance of the creative industries.  As a result of piracy, the creative people who have put their energies, time and money into producing best quality sound recordings, films, books, sculptures, computer programmes, broadcasts, etc. suffer huge losses in revenue accruable from their creative production.

Today, digital piracy is carried out on the internet. With modern technology, several creative works such as music, films, books, and computer software programmes are downloaded on the internet, phones, I pads and computers without any financial benefit going to the creators of the works. Even streaming of films is carried out online without any money going to the owners of the film. 

In economic terms, piracy undercuts legitimate market and therefore results in loss of revenue to right owners and investors.

  The pirate spends little or nothing on payment of staff and absolutely nothing on creativity that goes into the production of a work.  The pirate merely gets an original copy of a creative work and reproduces it.

The illegal exploitation of copyright protected works is not just a hindrance to copyright owners’ continued productivity but also a challenge to national economic development.

Consequently, the Nigerian Copyright Commission (NCC) remains irrevocably committed to the fight against piracy and has over the years, put in place measures to adequately protect creative works.  These measures include; Optical Disc Plants Regulation, Notification Scheme, Copyright (Video Rental) Regulations, Copyright (Security Devices) Regulations, Levy on Copyright Materials, SID Code and the CMO.

THE WAY FORWARD AND WHAT NCC IS DOING TO CURB PIRACY

Optical Disc Plants Regulation

It would be recalled that in 2007, the NCC made the Copyright (Optical Disc Plants) Regulation as a means of addressing the issue of piracy from the point of production.  The Regulation makes it mandatory for all persons involved in the business of optical disc manufacture or reproduction to be dully registered with the Commission.  The underlying rationale for the issuance of the Regulation is the belief by the Commission that addressing piracy from the point of production will significantly reduce the challenge of piracy.  The effective implementation of the regulation commenced in 2008 with registration of Replicating Plants and Mastering facilities.

Copyright Notification Scheme

This scheme commenced in September 2005 and it allows copyright owners to give the Commission notice of the creation or existence of their works.  The Copyright Law confers copyright automatically in a work once it is produced, fixed in a particular medium and meets a few other conditions.

The essence of the Copyright Notification Scheme is to provide the copyright owner, an assignee or a licensee an evidence of his right in the work and to enable the Commission collect data on all copyright works created in Nigeria in line with its mandate under Section 30 of the Copyright Act.

With the introduction of this scheme, owners of such plants and other users of copyright works will have document from the Commission evidencing the right of any author, assignee or licensee in a work.  The scheme further enables the creative industry to trace transfers of rights and assist the general public to ascertain who can assign or license any particular right at any given point in time.

Copyright Notification Scheme is not a registration of copyright.  It does not confer rights beyond that which a work will ordinarily acquire under the Copyright Act.

However, a work not sent to the Commission under the Notification Scheme will not be included in the Commission’s database and will not obtain Notification Certificate.  It may therefore be difficult for the general public, including the international community to access the information about the work and the copyright owner.

Copyright (Video Rental) Regulation

Recognizing that one of the greatest form of exploitation of films in Nigeria is the rental of movies by video rental outlets, the Commission issued the Copyright (Video Rental) Regulation in September, 1999.

The regulation was intended to discourage the proliferation of illegal rental activities by establishing guidelines for operation of rental businesses in a manner that will guarantee compensation of right owners for commercial use of their works.  It will equally facilitate general authorization for the conduct of rental activity.

The regulation therefore required all video rental outlets to be accredited by the Commission.  The essence of this requirement is to ensure that the Commission secures the undertaking of such outlets to operate within the confines of the Copyright Law and make for effective monitoring of the accredited outlets. 

The outlets upon accreditation are expected to rent out video films that are produced specifically for rental and in a special format prescribed by the Commission.

Presently, the Commission is in the process of reviewing the regulations to make it more acceptable to the industry.

The SID Code

In June 2009, the Commission, after due consultations with industry stakeholders, particularly, the replicating plants, prescribed the mandatory inscription of Source Identification (SID) Code on all optical discs.

The SID Code is a joint initiative between IFPI and Phillips Consumers Electronics who hold the patents in the compact disc technology.  The Code is made up of alpha-numeric characters identifying the registered number of the Laser Beam Recorder used in making the stamper or a registered number of the mould used to press the disc.

Since its introduction in the 90’s, it has proved to be a useful tool in tracking and tracing the source of optical discs mastering and replications.  The initiative was aimed to usher in a regime of transparency and best practice and guaranty higher protection level for all copyright works produced on optical discs in Nigeria.

Levy on Copyright Material

In line with the Copyright Act, there is a levy paid on any material used or capable of being used to infringe copyright in a work.

The levy payable under Subsection 1 of Section 3 of the Copyright Act shall be as may be determined by the Minister, from time to time, by order published in the Gazette and different levies may be imposed on different categories of materials.

The levy shall be paid into the fund of the Commission and the Commission shall have power to disburse the funds amongst approved societies in accordance with the regulations made by the Commission.

The Minister shall have power to exempt any class of materials from the repayment of any levy.  In the section of the Copyright Act that talks about Levy on copyright material, “material” includes any object, equipment, machine, contrivances or any other device used or capable of being used to infringe copyright in a work.

Collective Management Organization (CMO)

The Commission issued the copyright (Collective Management Organizations) Regulations 2007.  The Regulations sought to create a new philosophy of collective management and institute a more credible approval process.

In line with this, the Commission in May 2010 approved the Copyright Society of Nigeria (COSON) to operate as a collecting society to administer musical works and sound recordings.

The Commission also approved for the Reproduction Right Organisation of Nigeria (REPRONIG) to operate as collecting society for the literary industry.

Meanwhile, the Commission is making efforts to establish a collecting society for the film industry.

SYNERGY WITH OTHER AGENCIES

The NCC is involved in synergy with Federal agencies such as the Nigerian Customs at the various ports across the country, the EFCC and the Nigerian Police as well as other agencies in the fight against piracy. 

The synergy with the Nigerian Customs enabled the Commission to seize about 20 containers of pirated books and CDs at the Port worth over 10 billion naira.

PENAL SANCTIONS

The Copyright Act provides penal sanctions for individuala and corporate bodies who indulge in piracy these sanctions range from fine, imprisonment or both fine and imprisonment. Recently, the Commission recorded a total number of 52 convictions.

Technological Protection Measures

NCC is also involved in curbing online digital piracy Technological Protection Measures (TPM). These are measures that make it impossible for pirates to break into web and download from it. The measure also includes tracking down pirates through their e-mail addresses. 

Another measure of curbing online/digital piracy is through educating the masses. However, the challenge with TPM is that it is not an easy measure and it is expensive to carry out.

But criminal prosecution is used as a last resort.

CONCLUSION

In conclusion, the Nigerian Copyright Commission is committed to its mandate of ensuring a virile copyright environment in Nigeria and is doing everything within its power to effectively protect the creative industry so that right owners can enjoy the fruits of their labour.