Hey there!

Welcome to this week’s edition of the Lawpadi Newsletter.

Have you seen the movie – “A Tribe Called Judah”? It is a comedic drama that tells the story of a single mother and her five sons who, faced with financial hardship, hatch a plan to rob a mall. However, their plans take an unexpected turn when they encounter another group of robbers already on the scene.

If you haven’t seen it – you should, it’s amazing! What’s even more amazing? It earned over ONE BILLION NAIRA (and counting) at the Nigerian box office in just 3 weeks – the fastest Nollywood movie to achieve this. It is also the highest-grossing Nollywood movie of all time!

Unfortunately, the movie was somehow leaked, and people have been illegally downloading and watching it.

The leak of this movie and the illegal downloading by many people raises certain legal issues that we thought it would be good to address in this week’s newsletter.

Movie making is a complex, collaborative endeavour that gives rise to many different layers of rights that relate to different elements of a movie production, such as a screenplay, the music, the direction and the performances. All of these many layers are protected by something known as copyright. (there are other types of intellectual property (IP) that comes into play – like trademarks, but for now we will just stick to copyright).

Copyright is the legal right of the owner of IP to use their creation to the exclusion of every other person, except where the owner gives authorization to another to use or reproduce the work. It is a universally protected right, and is protected under the Copyright Act 2023 in Nigeria.

So, in this case, the producers of Tribe of Judah, by virtue of the protection in the Copyright Act, have the right to use the IP in the movie to the exclusion of everyone else.

Section 6 of the Copyright Act gives the owner of an intellectual property the exclusive right to:

Therefore, anyone who does any of the acts listed above without the owner’s authorisation is said to have infringed the owner’s copyright (See section 36(1)(a-g) of the Copyright Act for a detailed list of copyright infringements).

Although the Copyright Act does not specifically capture all forms of infringement – as new technologies are being adapted for infringement, Section 36(1)(a) makes all acts which constitute a violation of the exclusive rights conferred under Section 6 an infringement of copyright.

In the Tribe of Judah scenario, infringement would include illegal possession of the movie by website owners to be downloaded, illegally sharing and offering for sale on WhatsApp or Telegram groups), and yes – those who illegally access and download it are also breaking the law.

In this digital age, how do we pin down an infringement? Especially when the infringer can mve files on the ‘cloud’ in seconds. One may rightly argue that proving copyright infringement is harder now than in the past when one only needed to produce copies of physical cassettes or other materials showing infringement.

So how does one enforce their rights in the digital age? Here are some of the steps in the journey of protecting your copyright and enforcing your rights.

Step 1 – Identify the source of the infringement

The first step in any protection or enforcement exercise is identifying if there has indeed been an infringement. Movie companies have begun employing experts to identify illegal downloading through anti-piracy software or services that automatically scan the internet for unauthorized distribution of their content. These tools can identify instances where copyrighted material is being shared or downloaded without proper authorization. Some also track the IP addresses associated with illegal downloads to trace them back to the customers. So that is what the producers of Tribe of Judah should do – use software to identify the infringers.

Step 2 – Issue a Notice of Infringement

Under Section 54 of the Copyright Act, the copyright owner is expected to issue a notice of infringement to a service provider, requesting the takedown of any infringing content on the service provider’s system or network. This could be a web host (for illegal downloading) or a messaging service provider like WhatsApp or Telegram (for illegal sharing).

Under section 55, such a service provider has a mandatory obligation to immediately take down or disable access to the infringing content after receiving a notice of infringement. Failure to do this means they could be held liable for copyright infringement alongside the infringer.

Step 3 – Going to Court

After taking the steps listed above, a copyright owner can then institute a civil action in court to seek relief against the infringer. To establish copyright infringement in court, the copyright owner must be able to prove a high likelihood that the defendant copied/took their work, either in part or in whole.

If infringement is successfully proven, a copyright owner is able to request for certain remedies, including an injunction stopping the infringer from further infringement, and of course – damages for the financial loss they have suffered (See section 37(2) of the Copyright Act). There are also legal mechanisms in place to recover profits the infringer would have made – its called ‘account of profit’ and is also contained in the Copyright Act.

Further, under section 44 of the Copyright Act, a person can be held criminally responsible for copyright infringement. One of the offences includes distributing any infringing copy of a work for trade — which the present scenario relates to. According to that section, distributing an infringing copy of a work for trade attracts a fine of not less than N10,000 for each infringing copy or an imprisonment term of not less than 3 years or both.

So, imagine if Tribe of Judah has been illegally downloaded 50,000 times – theoretically each download would count as an infringing copy, and so that could be a minimum penalty of N500 Million!!

As you can see, protecting one’s intellectual property is not a straightforward process, and indeed can be very cumbersome (and expensive), but it definitely is worth it when you consider the vast sums of money that goes into making movies.

In fact, fighting copyright infringement is such an important part of the movie making ecosystem that there are companies and consultancies that have been set up specifically to help movie producers.

Finally, asserting your right to your intellectual property begins with taking action – we hope the producers of Tribe of Judah, and other movie producers will start to use the instrument of the law to enforce their copyrights.

Oh, before we go – please note that neither of the steps above should absolve the government from taking up the fight against piracy. In the past, the Nigeria Copyright Commission has been on the forefront of fighting piracy since the early 2000s – but it is clear that it is a battle they cannot fight alone, and indeed the movie producers cannot afford to leave it in the hands of the regulators alone.

Back then the fight was against illegally reproduced discs and cassettes – now the battle is in the cloud, and so needs more technology tools and more innovative ideas.

So, if there are any innovative lawyers who would like to explore the space between technology, intellectual property, and litigation – helping content producers (not just movie producers, but bloggers, musicians etc) protect and enforce their copyright is a niche to consider. It could be very lucrative! Also, it’s a space for the tech bros and sis – someone should use technology (blockchain and AI maybe?) to create a solution for identifying and tracking infringement breaches.

If anyone does this – don’t forget to give us our 10% for suggesting the idea (wink!)

We hope you enjoyed and learned from this newsletter.

Thank you for reading, and have a productive week!