Prof. Abiodun Amuda-Kannike (SAN)
TITLE: Nigerian Copyright Law Report 2019 (NCLR) VOL 1
AUTHOR: DR. TONYE CLINTON JAJA
(Chairman, Governing Board; Nigerian Copy Right Commission)
PUBLISHER:
PAGES: 172 PAGES
PRICE: Not stated
The book was reviewed by Prof Abiodun Amuda-Kannike, SAN, Provost, College of Law, Kwara State University, Malete, via Ilorin, Kwara State, Nigeria, at Rock View Hotel (Royale) Abuja, on Monday, 19th August, 2019.
Book Reviewer: E-mail address: amudakannikeabiodun@gmail.com
Book Reviewer: Telephone Number: 08033256756
INTRODUCTION
The desire and necessity for law reporting can be traced to the important doctrine called “judicial precedent” which is the core aspect of Nigeria’s jurisprudence and it has become part of us in legal practice. As a result of the need for our courts to be consistent with their judgments and decisions based on previous authorities and decisions, the assemblage and documentations of the same in a permanent form becomes necessary in order to allow the judges and lawyers to comfortably make reference to them.[1]
The official publication started in Nigeria through the Nigerian law reports (N.L.R) published by the justice department commencing from 1910 and running up to 1956 when it was stopped because of the creation of regions in Nigerian then. There was the West African Court of Appeal Report (WACA), followed by the Federal Supreme Court Reports (FSC)which dealt with the decisions of 1956 and 1960, we thereafter had All Nigeria Law Reports (ALL NLR) published in 1961 and up to the 1970s. Officially, the judgments of the supreme court of Nigeria (SC Reports) came alive during the tenure of Hon. Justice Teslim Elias who was the Chief Justice of Nigeria. By the 80s, this same publication came to an end. Then came the time of Hon. Justice Muhammed Uwais who gave Lai Babatunde SAN, the permission to publish SC reports and the Supreme Court reports became a private publication and has continued till date.[2]
With respect to commercial publications of Law reports, one cannot forget to mention, Nigerian Monthly Law Reports (NMLR) which was the first private Law report published as far back as 1964. Thereafter, there had been several Law reports published, such as;
(i) Federation of Nigeria Law Reports (FNLR)
(ii) Supreme Court of Nigeria Judgments (SCNJ)
(iii) Nigerian Supreme Court Cases (NSCC)
(iv) Supreme Court Reports (SC)
(v) Federation Weekly Law Reports (FWLR)
(vi) All Federation Weekly Law Report (All FWLR)
(vii) Weekly Reports of Nigeria (WRN)
(viii) Nigerian Weekly Law Reports
(ix) Legal Paedia
(x) All other electronic Law Reports
There exist also publications of Law reports which concentrates on specialized area of Law and they includes;
(i) Nigerian Copyright Law Reports 2019 (NCLR) VOL 1[3]
(ii) Commercial Law Reports of Nigeria (CLRN)
(iii) Law Reports of Election Cases in Nigeria (LRECN)
(iv) Nigeria Criminal Reports (NCR)
(v) Banking and Financial Law Reports (BFL)
(vi) Nigerian Banking Law Reports (NBLR)
(vii) Investments and Securities Law Reports
(viii) Tax Laws Reports of Nigeria (TLRN)
(ix) Nigerian Constitutional Law Reports (NCLR)
(x) Failed Banks Tribunal of Nigeria Law Reports
(xi) Sharia Law Reports of Nigeria
(xii) Election Petition Reports and Nigerian Labour Law Reports (NLLR)
It is however important that in our bid to do a proper review of the above named Law report, it is important to define the following terms;
(i) Book review
(ii) Copyrights
(iii) Law Reports
BOOK REVIEW:
A book review is a thorough description, critical analysis, and/or evaluation of the quality meaning, and significance of a book, often in relation to prior research on the topic. Reviews generally ranged from 500-1000 words, but may be longer or shorter depending on the length and complexity of the book being reviewed. The overall purpose of the review is whether the review is a comparative analysis examining two or more books that focus on the same topic. Professors assign book reviews as practice in carefully analyzing complex scholarly texts and to assess your ability to effectively synthesize research so that you reach an informed perspective about a research problem or issue.[4]
There are two general approaches to reviewing a book:
i. Descriptive Review: presents the content and structure of a book as objectively as possible, describing essential information about a book’s purpose and authority.
ii. Critical Review: describes and evaluates the book in relation to accepted literary and historical standards and supports this evaluation with evidence from the text and in most cases, in contrast to and in comparison with the research of the others.[5]
COPYRIGHT:
A copyright is an intellectual property right granted by a government that gives the owner exclusive right to use, with some limited exceptions, original expressive work. Examples of materials entitled to copyright protection includes original works of fiction, non-fiction, music architectural designs, artistic paintings, and sculptures.[6]
The Copyright Act[7] did not define the word “works”, but in the section of the Act[8], it makes provision that the followings shall be eligible for protection:
(a) Literary works
(b) Musical works
(c) Artistic works
(d) Cinematographic films
(e) Sound recordings
(f) Broadcasts.
Therefore, any work which is created but does not fall within the above definition cannot come under the protection of copyright. Furthermore, the issue is not to create “work” alone but:
1. Sufficient effort must have been expended in making the work to give it an original character and,
2. The work must have been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.[9] Other conditions actually exist in the Act, which means[10] it must be a model or pattern with intention to industrially multiply them and must not infringe the copyright work.
LAW REPORTS:
A Law report is a record of a judicial decision on a point of law which sets a precedent. Not all decisions taken in a Court of Law set a precedent, however interesting they may be in terms of the facts of the case or its consequences. A decision is only reportable if it lays down a new principle of Law, or changes or clarifies the existing Law.[11]
Furthermore, Law reports or reporters are series of books that contain judicial opinions from a selection of case Law decided by Courts. When a particular judicial opinion is referenced, the Law report series in which the opinion is printed will determine the case citation format.[12]
Law reports includes those in book format such as the one under review and other ones as could be found electronically such as;
(i) Law Pavilion Electronic Law Reports
(ii) Law Report E-Library, High Court of Federal Capital Territory, Abuja
(iii) Nigeria Internet Law Reports (NILR)[13]
(iv) Legal Pedia
1. DESCRIPTION
The book title as could be seen by all of us is titled “Nigerian Copyright Law report, 2019 (NCLR). It is the volume one of the book that can be seen now as other volumes will come up after this volume one, in order to make the opportunity of easy references and citations available to Judges, Lawyers and researchers/academicians.[14]
We have earlier shown that the Author of this Law report and the founder of the Law report outfit is Dr Tonye Clinton Jaja, who is currently, the Chairman Governing Board, Nigerian Copyright Commission. Dr Tonye Clinton Jaja referred to above can be described as an astute Lawyer, a brilliant academic, and a researcher to the core and to show his perseverance for knowledge, he has the following Degree Certificate;[15]
(i) Bachelor of Laws (LL.B) (Hons) between October, 1998 – March, 2003.
(ii) Bar Certificate B.L (Hons) Oct 2003 – October, 2004.
(iii) Master of Laws (LL.M) (Hons) Legislative Drafting Oct 2005 – September, 2006.
(iv) Doctor of Philosophy (Ph.D) in Law, Institute of Advance Legal Studies, School of Advanced Study, (SAS), University of London in August 31st, 2013.
Furthermore, it is not in doubt to state that Dr Tonye Clinton Jaja has written several articles and published books and out of the numerous books are the followings;
(i) Access to Justice in Sharia Courts, reviewed in Cambrian Law Review VOL 37, 2006, Aberst Wyth University, United Kingdom.[16]
(ii) “A Dichotomy of Legislative Drafting and Law making Terms” Germany Academic Publishers July, 2012.[17]
(iii) Legislative Drafting: An introduction to modern Theories and Principles (Oisterwijk, The Netherlands, Wolf Legal Publishers, August, 2012.
(iv) “Legislative Drafting office as a tool for Regional integration: A comparative study of EU and ECOWAS” in L. Hamalai (ed) 40 years of regional integration by the ECOWAS. A Book of readings (Abuja: National Institute of Legislative Studies, 2015).
(v) Legislative Drafting and Statutory interpretation: An introduction (Lagos: MALTHOUSE PRESS 2015).
(vi) Legislative Drafting Consultant, National Institute of Legislative Studies, Abuja, 2015.[18]
The general subject area of this Law report is on Copyright Law reports, which generally dealt with cases that had been tried dealing with copyright and which judgment has been delivered by the courts in Nigeria.
The purpose of the Law reports are multi-dimensional and are as follows;[19]
(i) To make sure there are availability of Law reports on copyright as a specialized area of the Law for easy accessibility of Lawyers, Judges and researchers.
(ii) To make sure that copyright Law maintain a different pride of place among those cases reported dealing with intellectual properties which are usually lumped together with cases dealing with Patents, Designs, Copyrights because, intellectual property is said to connote any intellectual creation which involves works such as literary works, artistic works, inventions, designs, symbols, names, images, computer code and other works. The aim of intellectual property Law generally is the protection of the “Creators”.[20]
(iii) To develop the copyrights Law more as a lot of Judges, Lawyers, Academicians would find easy sources,[21] to write briefs, judgments, articles and books and it is through the reading of the case Laws reported on Copyright issues that they on their own will comment on those cases reported,[22] have more knowledge on how the judgment was arrived at and whether the case or cases on specific area of Copyrights have been overruled or sustained by the court.
The scope of this Law reports for now is limited to Nigerian cases, Copyright cases, Court of Appeal cases and Supreme Court cases. The scope of the Law reports enables the Author to concentrate on the areas with limited scope instead of adding those Copyright cases from the Lower Court or outside the Country which are usually limited in terms of usages as those authorities when cited are usually described as “persuasive authorities” and not “binding authorities” as far as hierarchy of courts are concerned and most especially, the “doctrine of judicial precedent”[23]
The structure of the Law report is quite complex because this sort of review is a bit different from normal book review, because the review here has to do with “Law reports review” even though Law reports are also classified in the copyright Law as “books”, in this situation, Law reports does not deal with chapters as in normal books, but Law reports has to do with the cases as reported one after the other.
Therefore, it is the way and manner the cases are reported that we shall take as if they are chapters by chapters.
The cases reported can be divided into six (6) different segments and broken down as follows;
(i) The first case reported is called; MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE V COMPACT DISC TECHNOLOGY LTD & ORS[24] which was reported from pages iii-30.
(ii) The second case reported is called; NIGERIA COPYRIGHT COMMISSION & ORS V MUSICAL COPYRIGHT SOCIETY OF NIGERIA LIMITED GTE & ORS,[25] which was reported from pages 31-59.
(iii) The third case reported is called; PERFORMING AND MECHANICAL RIGHT SOCIETY LTD/GTE V SKYE BANK PLC & ORS,[26] which was reported from pages 61-80.
(iv) The fourth case reported is called; VISAFONE COMMUNICATIONS LTD V MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE & ANOR[27] which was reported from pages 81-108.
(v) The fifth case reported is called; UBI BASSEY ENO V NIGERIAN COPYRIGHT COMMISSION[28] which was reported from pages 109-130.
(vi) The sixth case, which is the last case reported is called; “PLATEAU PUBLISHING CO LTD V CHIEF CHUKS ADOPHY[29] which was reported from pages 131-161
The Author decided to round up the Law reports by providing “Index” to the Law reports, which can be seen on pages 162-173 and the index were arranged in alphabetical orders with alphabets A, B, and C on pages 162-165, alphabet D on pages 165-166, alphabets E-L from pages 166-168, alphabets N-F on pages 169-171, alphabets R-W on pages 171-173.
There exist no author argument in the law reports. This is because it is a law report, different from books generally where the author’s opinion will be of significant importance, not withstanding that law reports themselves are books.[30]
A book is said to be a written or printed work consisting of pages glued or sewn together a long one side and bound in covers. It also refers to a bound set of blank sheets for writing in. A book is a number of pieces of paper, usually with words printed on them, which are fastened together and fixed inside a cover of stronger paper or cardboard. Books contain information, stories, or poetry.[31]
Law reports however has to contain judicial opinions from a selection of case law decided by courts. These contains only judgments of the court and no author’s argument or thesis.
Accordingly, we can see that it is not possible in this book review of the law reports to authoritatively bring out the thesis/argument of the author as it use to be for other books.
We would have been able to bring out the author’s thesis or argument even if the law reports contains any thesis or argument, even if it is a page or half a page. The above analysis becomes necessary in order to show the reasons why we did not analyse the argument as expected in a book review
2. CRITICAL ANALYSIS
The Author reported six cases, and he drew sources of his judgments/cases reported from the court of appeal, and Supreme Court. In dealing with this area, we shall look at the ways each of the cases were reported:
(i) MUSICAL COPY RIGHT SOCIETY OF NIGERIA LTD/GTE V COMPACT DISC TECHNOLOGY LTD & ORS[32]
The Author was able to quickly introduce us to the ratio decidendi of the case which he showed as dealing with category of person who have the locus standi to institute an action for copy right infringement.
The Author further brought out ratio 2 of the above case which still has to do with intellectual property tagged copy right and he gave the fact of the case herein as follows; The Appellant here in instituted the suit at the trial court in its capacity as owner, assignee and exclusive licensee of the copyright in the musical works of certain named authors, publishers, composers and institutions within the territory of the federal republic of Nigeria. The Appellant alleged that the respondents had infringed on the said copyright by importing, recording, producing, distributing and offering for sale of the public without its authority the musical works of its assignors. It therefore sought various declaratory and injunctive reliefs against them.
It is the respondents contention that the appellant lacked the locus standi to institutethe action because it is a collecting society without license to operate by the Nigerian copyright commission in line with section 39 of the copyright Act, by relying on section 15 A, 32 (B) (2), (4) (5) and (6) of the Act.[33]
The Respondents motion to dismiss this suit for lack of locus standi was unsuccessful. The motion was dismissed. The respondents being aggrieved filed an appeal and the court of appeal allowed the appeal and dismissed the suit at the lower court. The Appellants further appealed to the Supreme Court. The appeal was allowed. The decision of the court of appeal was set aside and the high court decision was restored.
The above can be seen as the strongest details in the above case reported by the author, however, the weakest points in the authors report of the above named case are as follows;
(i) The name of the judge who commenced the judgment from pages iii – ii who was Hon.justice Kekere – Ekun J.S.C was not mentioned until page ii when we thought it would have been mentioned from the beginning of the judgment.
(ii) The numbering of the pages ought to start from page i and not iii
(iii) The ratio decidendi was not arranged to bring out the ratio decidendi to show what the basis of the decision of the court was really.
(iv) The facts of the decision of the court was not summarized.
(2) NIGERIAN COPYRIGHT COMMISSION &ORS V MUSICAL COPYRIGHT SOCIETY OF NIGERIA LIMITED G T E & ORS[34]
The Author with respect to the above case compared to the first case that was reported, improved. This is because; he was able to distilled the radio decidendi as follows;
(i) Practice and procedure – Academic or hypothetic questions issues. Attitude of courts thereto.
(ii) Action – conditional precedent. Effect of non compliance with condition precedent before commencing an action.
(iii) Constitutional law – constitutional right
(iv) Intellectual property – copyright: whether a collecting society must seek and obtain the approval of the Nigeria copyright commission to operate.
(v) Duty of court to consider/ pronounce on all issues raised before it.
(vi) Interpretation of section 28 (1) and (2)[35]of the copyright Act as to whether copyright inspectors can arrest without warrant.
(vii) Criminal law and procedure re – seizure, restitution forfeiture and disposition of property.
The facts of the above named case has to do with an application made by the Respondents under the fundamental rules that they are entitled to their right to dignity of their personal liberty and rights to move freely, that their operation is legal and subsisting and to own and enjoy the copy rights and property rights as guaranteed constitutionally, perpetual injunctions from harassment, intimidation, arrest and detention, and monetary claim.
The trial court after looking into case granted the application. The Appellants appealed. The court of appeal allowed the applicants appeal. The court found out that by Section 39 of the copy right Act, the 1st respondent cannot act as collecting society having failed to obtain approval under the law.
The above can also be seen as the strongest details of the author’s work in reporting this case, through the medium of law report, but the weakest points in the author’s report of the case, are as follows;
(i) The facts of the case was difficult for us to summarise or even distil out as it takes time to come out with a personal summary of the facts of the case.
(ii) The issues involved in the case were used by the author as the ratio decidendi.
(3) PERFORMING AND MECHANICAL RIGHT SOCIETY LTD/G.T.E V SKYE BANK, PLC & ORS[36]
The Author in dealing with the above named case, also introduced us to the ratio decidendi of the said case when he started with ratio 1 on Appeal/Cross Appeal/Respondent notice which culminated in the question “whether a respondent who did not file a cross appeal or respondent notice can be allowed to attack the judgment appealed against”?
The Author also brought out ratio 2 which is on “Appeal-Ground(s) of appeal and the question was raised thus” whether ground(s) of appeal as well as issue(s) formulated there from must arise from the decision appealed against and effect of failure thereof”?
The 3rd ratio decidendi has to do with court-jurisdiction and the question raised herein is “what determines jurisdiction of court to entertain a cause/matter”?
The 4th ratio decidendi can be seen from the interpretation of statutes. It further discuss “sections 17 and 39 of the copyright Act cap 68 laws of the Federation of Nigeria 1990” (Now LFN 2004).
The fact of this case can be seen commencing from page 64 of the law report, as Hon. Justice Mohammed Lawal Garba, JCA delivered the lead judgement. The case was tried before the Federal High Court, Lagos, the 2nd and 3rd respondents claimed, declaration, injunction and damages against the Appellant and the 1st Respondent for alleged infringement of the copyright to a musical work in respect of which they are assignee and holder and owner and assignee respectively[37].
The Appellant, and 1st Respondent filed motions challenging the jurisdiction[38] of the federal high court to entertain the suit on the following grounds;
(i) That the plaintiffs are not an authorized collecting society under the laws in Nigeria
(ii) That the plaintiffs action is illegal as it offends the provisions of the copyright Act.
(iii) That the Defendant was duly licenced for the use of the work by the 2nd Defendant.
The above objections were raised by the Appellant as could be seen above while the 1st Respondent based the challenge of the jurisdiction on the following grounds;
(i) That the plaintiffs are stopped in law from denying that they carry on business and operate as collecting societies as provided for under section 32B of the copyright licenses and collecting royalties with respect to musical works and sound recordings in Nigeria.
(ii) That the plaintiffs are carrying on the afore said business without the requisite approval of the Nigerian copyright commission contrary to section 15A of the copyright Act.
(iii) That the plaintiffs not being approved to operate as collecting societies under section 32B of the copyright Act, lack the requisite locus standi in law to institute and prosecute this suit.
(iv) That the plaintiffs are not the assignees of the owner of the copyright in the song “I wish I knew how it would feel to be free” (the work) as contemplated under the copyright Act and cannot institute the suit.
The trial lower court heard the motions together, listened to all the parties and held as follows.
“Because, the plaintiffs are not a collecting society, but have said they are the owner, assignee and exclusive licensee of the copyright, they need not call section 39 to play and consequently, they cannot be said to have acted illegally by not complying with the provisions of the said sections”
The Appellant appealed against the said decision contending that the learned trial judge was wrong. The court of appeal after a thorough scrutiny of the casedismissed the appeal. The ruling of the trial court which assumed jurisdiction over the 2nd and 3rd Respondents against the Appellant and the 1st Respondent was affirmed[39].
The above can be seen as the strongest details in the above case as reported by the author and he did his best by showing us the essence of what the court sees as, collecting society, interpretation of sections 17, 32 and 39 of the copyright Act.
The weakest points in the way the above case was reported can be appreciated as follows;
(i) The name of Hon justice Ugochukwu Anthony Ogakwu, J.CA was lightly typed not darkened as his other two brother judges when reading their contributions. One may be tempted to think only two justices delivered the judgment.
(ii) The facts of the case was not summarized for easy understanding before one will read the main judgment.
(iii) The issues that were raised in the judgment ought to be brought out as issues before even the facts of the case and not ratio decidendi.
(4) VISAFONE COMMUNICATIONS LTD V MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/G.T.E & ANOR[40]
The Author with respect to this case the he reported did well by bringing out the subject matter of the reported case which he referred to as “ratio decidendi”.
He did well also by showing the date of judgment of the case and the judges of the court of Appeal who sat on the case just like in the other cases, he reported. The ratio 1 was on condition precedent to commencing action for infringement of copyright.
The brought out ratio 2 of the case which he referred to as case law-judicial precedent/stare decisis, he concluded by referring to it as “nature and effect of”. What he meant by this is to say; nature and effect of case-law judicial precedent/stare decisis, as relevant to the present case.
The Author while doing the right thing in reporting this case brought out ratio 3 as ratio decidendi which he referred to as action-locus standi and eventually summed it up to say” when to determine. What he meant is; when to determine action-locus standi.
Furthermore in ratio 4 of the Author’s ratio decidendi, he brought up the issue of practice and procedure on when to file and when not to file preliminary objection.
The Author in doing marvelous work to this report, showed to us the Justice of the Court of Appeal who delivered the lead judgment and this was delivered by Hon. Justice Abimbola Osarugue Obaseki, JCA[41].
The facts of the case shows that it was an appeal against the ruling of the Federal High Court, Lagos, in respect of the Appellant motion. The respondents instituted the suit on the allegation that the Appellant infringed on his copyright. The Appellant upon entering appearing and filing his statement of defence, also filed a motion raising preliminary objection, challenging the locus standi of the Respondents to file the suit on the ground that there has been non compliance with sections 17 and 39 of the Copyright Act, 2004. The court said that the matter should proceed on the merit and that preliminary objection shall be taken at the end of the trial.
The Appellant eventually filed motion to strike out the case as being an abuse of court process and that the continuous hearing of the case is unlawful and illegal. The respondents filed a counter affidavit and the lower court held that the motion is refused, that trial of the case on the merit should continue[42].
The Appellant appealed to the Court of Court, on two issues;
i. Whether the lower court was right when it held that it cannot take the benefit of the decision in Compact Disc Technologies Ltd & 2 ors V Musical Copyright Society of Nigeria Ltd/gte CA/L/787/2008 on ground that it was not a party to the case and the case has taken two years before the present case came up.
ii. Whether the Appellant motion to strike out is indeed subversive of the lower court earlier directive that the case should go on and preliminary objection be taken at the end of trial.
The Appellant succeeded. Appeal was allowed, the suit was struck out. The court of Appeal felt that the lower court was wrong not to have acted on the judicial precedent of Compact Disc case and that the Respondent had failed to establish the necessary statutory pre-requisite to enable it to competently institute the said proceedings against the Appellant[43]. The court held that the Compact Disc case involved the Respondent and the case in essence stated that Musical Copyright Society of Nigeria (MCSN) pursuant to sections 17 and 39 of the Copyright aAct, ought to have obtained prior approval before instituting any action for the infringement of Copyright or any right granted by the Copyright Act[44]. The decision is effective against any one or the Musical Copyright Society of Nigeria.
The above analysis of the manner in which the case was reported showed us the strongest effort of the Author in carrying out this work, however, the weakest points in the Authors report of the above case are thus;
i. The character of the words and case reported as printed out looks too small and may not be easily read by those who are old or those who have bad eye – sight.
ii. The issues were not clearly stated as you can see in NWLR and ALLFWLR or FWLR.
iii. The ratio decidendi is too long and ought to be summarised.
iv. Facts of the case in summary form is not provided for.
5. UBI BASSEY ENO V NIGERIAN COPYRIGHT COMMISSION[45]
The Author in this area, while reporting this case changed his style of reporting. This may be due to the fact that this case is not civil in nature but criminal case prosecuted in the court. The style of highlighting the facts of the case and the holdings of the court as could be seen on pages 109 and 110 of the law report is very good as it enable the reader to quickly understand what the case is all about.
The lead judgment by Hon. Justice Omokri J.C.A, also highlighted the offences before the court which was shown as counts 1 – 4 as could be seen on pages 111 – 113 of the report.
The Author did well in reporting this case because unlike most of the cases, we had earlier commented upon, this case went through full trial rather than preliminary objection as found in earlier cases reported.
The facts of the case as shown by the Author was that the accused persons were arraigned before the Federal High Court on four court charge of;
i. possession of two (2) Nos Multi-choice Smart Cards being equipment/contrivances for the purposes of illegally re-broadcasting transmission of the whole or substantial parts of multi-choice programme;
ii. by way of re-broadcasting and/or transmission through, Digital Communication Network (Nig.) Ltd, selling or letting or hire or for the purpose of trade or business, exposing or offering for sale or hire the whole or substantial parts of multi-choice Nigeria Programs (channels) in which copyright in broadcasts subsists in favour of multi-choice Nigeria, without the consent or authorization of the copyright owners.
iii. possession other than for your private or domestic use of two (2) Nos Multi-choice Smart Card Properties of Multi-choice Nigeria; and distribution in public for commercial purposes by way of re-broad casting and or transmission multi choice programs (channels) through Digital Entertainment Television (DET) by way of rental, lease, hire, loan, similar arrangement. The accused persons were convicted on counts (i), (ii) and (iv) while (iii) was struck out[46].
The issues before the Court of Appeal were[47];
i. whether the prosecution proved its case beyond reasonable doubt.
ii. whether the learned trial judge fully considered the defence of the Appellant and
iii. whether in sentencing the Appellant, the learned trial judge exercised his discretion judicially.
The Court of Appeal after going throughthe decision of the trial court held as follows[48];
1. The Prosecution has proved its case beyond all reasonable doubt.
2. Section 18 (1)(c) of the Copyright Act makes it an offence to possess the equipment for the purpose of making infringing copy. In the instant case, the decoders and smart cards were in fact used for illegal rebroadcasting which is a reproduction of a broad cast and since it is illegal, each rebroadcast is an infringing copy.
3. By the provisions of section 1(1) of the Copyright Acts, broadcasts are eligible for copyright and “broadcasts” means “sound or television broadcasts by wireless telegraphy or wire or both or by satellite or cable programmes and includes rebroadcast”.
4. It is one thing to have a license to operate as a cable television station but it is entirely different to re-broadcasts the programmes of another without their knowledge consent or authorization. The provisions of Section 2(1) of the National Broadcasting Commission Act, Cap NII, has nothing to do with the copyright rather it is concerned with, among other things, the receiving, processing and considering applications of establishment, ownership or operation of radio and television stations including cable television services, direct Satellite broadcast and any other medium of broadcasting.
5. An appellate court will not interfere with a sentence imposed by the trial court unless the sentence is manifestly excessive, in the circumstance of the case or is wrong in principle. The sentences imposed on the appellant are not manifestly excessive having regard to the punishment provided under section 18 of the Copyright Act, and neither are they wrong in principle[49].
The above can be seen as the strongest details of the Author’s report of the above named case, but it must be pointed out that the weakest points in the same reports of the above named case can be summarized as follows;
i. the ratio decidendi of the case reported was not categorically headed nor mentioned as usually done in NWLR.
ii. the identification of the sub-heading; “Criminal Law and procedure” could not be found in the report.
iii. the summary of the issues were not highlighted separately by the Author.
iv. the statutes, Nigerian or foreign cases referred to in the judgment were not listed separately in the Law reports.
v. the identification of the name of the reported case on the top part of each page were not done.
vi. the font size of the wordings are small and it should have been boldly written for easy reading by those reading the Law reports.
6. PLATEAU PUBLISHING CO LTD V CHIEF CHUKS ADOPHY[50]
The Author with respect to this case as reported by him improved in his ways and manner of Law reporting as he provided the facts of the case, perfectly summarized, he provided the decision of the court also well summarized into six identifiable paragraphs[51].
The Author also showed in the judgment the particulars of error raised in the judgment. Additional value in the case reported is that it was a Supreme Court decision. The case is also interesting as reported not only because it a Supreme Court case but also because it was a case decided on the merit after full trial.
The Author went further to give the facts of the case in a well articulated and arranged manner and for ease of understanding the facts are as follows;
i. The respondent (as plaintiff in the High Court) had sued the appellant for infringement of Copyright in his literary work title “After Tarka, What next? Special tribute”.
ii. It as alleged that the defendant reproduced the work in its newspaper under a fictitious name.
iii. The trial court found for the plaintiff and awarded general and additional damages.
The Defendant appealed
to the Court of Appeal was also dismissed and he then appealed to the Supreme
Court, on the ground that the award of N25,000
as general damages, was excessive for a tribute which if it were published in
the plaintiff’s name, it would have fetched him a paltry “licence fee”.
The Supreme Court after reviewing the Court of Appeal decision, held as follows;
1. An appeal Court should not substitute what it considers to be reasonable damages, if there is no appeal before that court against quantum of damages.[52]
2. In general any invasion of a right of property gives a cause of action to the owner against the person responsible for the invasion, whether it is intentional or not. Consequently, innocence is no defence to an action for infringement of Copyright or for the conversion or detention of an infringing copy or a plate.[53]
3. Where it is proved or admitted in an action for infringement that an infringement was committed, but that at the time of infringement, the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work or other subject matter to which the action relates, the plaintiff is not entitled to damages, but is entitled to an account of profits whether any other relief is granted or not.
4. The defence of innocent infringement does not offer protection to a person who, knowing or suspecting that copy right exists, makes a mistake as to the owner of the copyright and under that mistaken belief obtains the authorization to publish from a person who is not in fact the owner.
5. In order to succeed in the defence of innocent infringement, a defendant must allege and prove that at the time of the infringement he was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work in question.[54]
6. A defendant does not establish that he had no reasonable grounds for suspecting the existence of copyright by showing that he held an honest but erroneous view of the law or by showing that he reasonably believed that the work he had published was an original work, nor can be plead that he had no reasonable grounds for suspecting the existence of copyright in a work if he made no inquiry whatsoever as to the source from which the work was derived.[55]
The above analysis of the case reported in the Law reports shows the important and one of the strongest points in this report. However, it is also pertinent that we must critically assess the way and manner this particular case was reported in the law report by the author. The weakest points of the reported case are as follows;
i. the ratio decidendi of the case reported was not also categorically headed nor mentioned in the Law report as it is usually done in NWLR.
ii. the identification of the heading or sub-heading could not be found in the law report.
iii. the summary of the issues were not highlighted separately by the Author.
iv. the identification of the name of the reported case in the top part of each page were not done.
v. the font size of the wordings are too small and should have been boldly written.
3. EVALUATION
The Author in publishing this Law report can be said to achieve his desired objective which is to make copyright Law reports to be specialized work on copyright alone and not to mix same with other areas of law.
The Author intention herein again is to make sure that both the Lawyers, Judges, Students and Researchers have easy access to this area of Law reports.
It is the intention of the Author too, to see that his Law reports forms an important, if not the best Law reports in Nigeria.
It is my opinion that
this Law reports is a valuable contribution to knowledge especially in the area
of copyrights.
SUMMARY
In the Law report as published, we have been able to have a constructive assessment of the cases reported one after the other. We have been able to see that the cases reported are six (6) in total together with “index” as could be seen herein.
It is also a fact that we defined some important terms such as;
i. Book review
ii. Copy rights
iii. Law reports
We equally went down history lane as to how Law reports commenced by being published, which we said it was officially published by the Justice Department from 1910 – 1956. We mentioned lots of Law reports such as WACA, NLR,NWLR, FSC, All FWLR, FWLR, there are private publications which are as follows;
i. Nigeria Copyright Law Reports 2019 (NCLR) Vol. 1.
ii. Commercial Law Reports of Nigeria (CLRN)
iii. Nigeria Criminal Reports (NCR)
iv. Investments and Securities Law Reports
v. Tax Law Reports.
We followed in details the requirements of a normal book review which is expected to involve (1) Description (2) Critical analysis (3) Evaluation (4) Summary (5) Recommendations (6) Conclusion (7) Bibliography.
RECOMMENDATIONS
1. It is recommended that the Author should immediately constitute members of hisEditorial Board which should have himself remaining as founder/Editor in-Chief, there should be Deputy Editor In-Chief, Editor, Senior Deputy Editor, Editorial Secretary, Deputy Editors, Senior Assistant Editors, Assistant Editor and Assistant Editorial Secretary and many Assistant Editors.
2. It is equally recommended that the Law report should follow the pattern of the ways NWLR and FWLR vis-à-vis other law reports were reported.
3. It is recommended that more Supreme Court cases on Copyright issues should be reported instead of having more Court of Appeal decisions on the subject matter.
4. It is recommended that more cases should be reported where full trial of cases took place and not too much cases on the issue of preliminary objection even though those cases on preliminary objections are also important for our knowledge of the law on copyright.
5. It is recommended that the Author should identify those cases reported and the subject matters involved on the front cover page of the Law report because the reader will immediately find the information about the Law report in summary as itemized without even opening the Law reports.
6. It is also recommended that the Author should also produce electronic versions of the Law report while the book format should also continue.
CONCLUSION
We accordingly
recommend this important Law reports, the first of its kind, for the reading
public, most especially, the Judges, Lawyers, academicians and researchers. The
few areas requiring corrections, as discovered in our review, are not new, when
a book such as Law reports is produced, as there will always be continuous
improvement when subsequent volumes are published, since, this is the volume
one (1) of the Law reports.
BIBLIOGRAPHY
1. INTERNET MATERIALS
1. Tayo Oyetibo: The place of Law Reporting in the 21st Century Legal research and Practical see: http://issuecom Accessed through internet on 3/8/2019 at 2am.
2. Book Review: http://libguides.usc.edu Accessed through the internet on 4/8/2019 at 11:02pm
3. Copyright; http://study.com/academy/lesson Accessed through internet on 4/8/2019 at 11:23pm
4. LAW REPORT: https://www.idr.co.uk/blog/achive Accessed through internet on 4/8/2019 at 11:38pm
5. See; https://en.m.wikipedia.org Accessed through internet on 6/8/2019 at 8am.
6. Law Reporting: www.nigeria.law.org Accessed through internet on 6/8/2019 at 10:15am.
7. See; https://www.aber.ac.uk/en/Law.criminology/research/cir/pastedition/#v37-2006 Accessed on 6/8/2019 through the internet at 8pm
8. See; https://www.morebooks.de/store/gb/book/a-dictionary of legislative drafting-and-lawmaking-terms/isbn/978-3-659-19233-3 Accessed on 6/8/2019 through the internet at 8:30pm.
10. Intellectual property: See https://pitt.libguides.com; Accessed through the internet on 6/8/2019 at 9pm
11. The doctrine of judicial precedent involves an application of the principle of stare decisis. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the Law. See; https://www.lawteacher.net.judicial Accessed through the internet on 6/8/2019 at 10:05pm.
12. Book; https://www.collinsdictionary.com Accessed through the internet on 7/8/2019 at 4pm
2. CASE LAWS
1. MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE V COMPACT DISC TECHNOLOGY LTD & ORS; The case is a Supreme Court decision decided on Friday, 14th December, 2018 in Appeal No: SC/425/2010
2. NIGERIAN COPYRIGHT COMMISSION & ORS V MUSICAL COPYRIGHT SOCIETY OF NIGERIA LIMITED IG.TE & ORS; The case is a Court of Appeal Case of 19th day of October, 2016 of Appeal Number, CA/L/350/2013
3. PERFORMING AND MECHANICAL RIGHT SOCIETY LTD/GTE V SKYE BANK PLC & ORS; The case is a Court of Appeal decision decided on Wednesday, the 27th day of October, 2017 in Appeal No: CA/L/846/2019.
4. VISAFONE COMMUNICATIONS LTD V MUSICAL COPYRIGHT SOCIETY OF NIGERIA LTD/GTE & ANOR; The case is a Court of Appeal decision decided on Friday, the 30th day of November, 2018 in Appeal No: CA/L/387/2012
5. UBI BASSEY ENO V NIGERIAN COPYRIGHT COMMISSION; The case is a Court of Appeal decision decided on Friday, the 23rd day of April, 2009 in Appeal No: CA/C/46/2007
6. PLATEAU PUBLISHING CO LTD V CHIEF CHUKS ADOPHY; The case is a Supreme Court, No Suit number, and no date of Judgment.
3. STATUTES
1. Section 1(1) of the Copyright Act LFN 2004
2. Section 2 (a) and (b) of the Copyright Act LFN 2004
3. Section 2 (3) and (4) of the Copyright Act LFN 2004
4. Sections 15A, 32 (B) (2), (4), (5) and 6 of the copy rights Act LFN
4. BOOKS/JOURNALS/PAPER PRESENTATION
1. Hon Justice Emmanuel Ayoola; Prologue: Emergence of Law reporting in Nigeria as published by “The National Mirror” of 26/8/2013.
2. Bankole Sodipo; Copyright law, principles, practice & procedure; 2nd Edition 2017 published by Swan Publishing Lagos; Page 235.
3. Jide Olakanmi; Intellectual Property;
Cases and Materials Copyright e.t.c; 1st Edition 2009 page 247. 4. F.O Babafemi: Intellectual Property: The
Law and Practice of Copyright, e.t.c, in Nigeria: 1st Edition Published by
Justinian Books Ltd Page 102.
[1] Tayo Oyetibo: The place of Law Reporting in the 21st Century Legal research and Practical see: http://issuecom Accessed through internet on 3/8/2019 at 2am.
[2] Hon Justice Emmanuel Ayoola; Prologue: Emergence of Law reporting in Nigeria as published by “The National Mirror” of 26/8/2013.
[3] We must say that we are passionate about the present Law report as there exist no specialized Law reports on the specialized area of copyrights and that was why it was listed as number one among the law reports classified as specialized area of Law.
[4] Book Review: http://libguides.usc.edu Accessed through the internet on 4/8/2019 at 11:02pm
[5] Ibid
[6] Copyright; http://study.com/academy/lesson Accessed through internet on 4/8/2019 at 11:23pm
[7] Copyright Act chapter C28 Laws of the Federation of Nigeria, LFN 2004
[8] Section 1(1) of the Copyright Act LFN 2004
[9] Section 2 (a) and (b) of the Copyright Act LFN 2004
[10] Section 2 (3) and (4) of the Copyright Act LFN 2004
[11] LAW REPORT: https://www.idr.co.uk/blog/achive Accessed through internet on 4/8/2019 at 11:38pm
[12] See; https://en.m.wikipedia.org Accessed through internet on 6/8/2019 at 8am.
[13] Law Reporting: www.nigeria.law.org Accessed through internet on 6/8/2019 at 10:15am.
[14] The Author had to produce this Law report in order to contribute his own quota to the development of Copyright and Law reports in Nigeria.
[15] It is necessary to have knowledge of the founder of the said Law report.
[16] See; https://www.aber.ac.uk/en/Law.criminology/research/cir/pastedition/#v37-2006 Accessed on 6/8/2019 through the internet at 8pm
[17] See; https://www.morebooks.de/store/gb/book/a-dictionary of legislative drafting-and-lawmaking-terms/isbn/978-3-659-19233-3 Accessed on 6/8/2019 through the internet at 8:30pm.
[18] It is important to note that the experience of the Author is teaching, writing of articles, and practice as a Lawyer vis-à-vis conferences and seminars attended has shown that he is a man of many excellent qualities which if we continue to describe him, it may take substantial part of this review and may not allow us to deal with the subject matter at hand.
[19] This Law reports has come up at a better time for important usages.
[20] Intellectual property: See https://pitt.libguides.com accessed through internet on 6/8/2019 at 9pm
[21] We must take note that even when we talk about sources of our Laws in Nigeria, we usually mention judicial precedents and the most important place to see judicial precedents is to look at the Law reports which this one is part of.
[22] A person who will comment on cases/judgments must have access to them first.
[23] The doctrine of judicial precedent involves an application of the principle of stare decisis. In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the Law. See; https://www.lawteacher.net.judicial Accessed through the internet on 6/8/2019 at 10:05pm.
[24] The case was a Supreme Court decision decided on Friday, 14th December, 2018 in Appeal No: SC/425/2010
[25] The case is a Court of Appeal decision decided on Wednesday, the 19th day of October, 2016 in Appeal No: CA/L/350/2013.
[26] The case is a Court of Appeal decision decided on Friday, the 27th day of October, 2017 in Appeal No: CA/L/846/2009
[27] The case is a Court of Appeal decision decided on Friday, the 30th day of November, 2018 in Appeal No: CA/L/387/2012
[28] The case is a Court of Appeal decision decided on 23/4/2009 in Appeal No: CA/C/46/2007
[29] The case is a Supreme Court decision.
[30] Book; https://www.collinsdictionary.com Accessed through the internet on 7/8/2019 at 4pm
[31] Ibid
[32] This is the first case reported in the law reports we have critically looked at the way the law reports was actually reported
[33] The court had to deal with the issue of sections 15A, 32 (B) (2), (4), (5) and 6 of the copy right Act LFN
[34] This is the second case reported in this law report. The analysis of what the case above meant to the legal profession cannot be over emphasized.
[35] The rules of interpretation of statute is to be utilized here, and was actually utilized in area of importance and necessity.
[36] This is third case which we have critically examined as being important area of law, requiring adequate appreciation of the law.
[37] See pages 64 and 65 of the Law Reports
[38] The issue of jurisdiction and how it was by challenged was discussed by; Bankole Sodipo; Copyright law, principles, practice & procedure; 2nd Edition 2017 published by Swan Publishing Lagos; Page 235.
[39] See page 79 of the Law report
[40] This is the fourth case reported in the Law reports, which we critically looked at the way it was reported.
[41] This can be seen on page 89 of the Law report.
[42] This can also be seen on page 90 of the Law report
[43] See page 108 of the Law Report
[44] See page 98 of the Law Report
[45] This was the Fifth case that was reported in the Law report which we critically examined the way and manner it was reported.
[46] See page 109 of the Law reports
[47] See page 110 of the Law reports
[48] See page 110 of the Law reports
[49] See page 111 of the Law reports.
[50] This is the sixth and last case reported in this Law report. We had to critically scrutinize the ways and manner the case was reported.
[51] See pages 131 – 132 of the Law report.
[52] See page 131 of the Law reports
[53] See page 132 of the Law reports
[54] See page 132 of the Law reports.
[55] See Jide Olakanmi; Intellectual Property; Cases and Materials Copyright e.t.c; 1st Edition 2009 pg 247 and F.O Babafemi: Intellectual Property: The Law and Practice of Copyright, e.t.c, in Nigeria: 1st Edition Published by Justinian Books Ltd Page 102.
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