COPYRIGHT & THE ANTON PILLER ORDER

Today, we resume our tutorials on copyright and review one of the reliefs available to a plaintiff in an intellectual property matter, the famous Anton Piller Order.

The Anton Piller Order is made by a court to give a copyright holder the opportunity to take an alleged copyright infringer by surprise. It is an order which requests a defendant in an intellectual property action, to allow the plaintiff to enter his premises and search for and remove documents and materials allegedly used for the infringement of the rights of the plaintiff. The order is intended to ensure that the defendant does not destroy important evidence and records which may be necessary for the copyright holder to prove his case.

The Anton Piller Order is granted ex parte. In other words, it is granted upon the application of the owner, assignee or exclusive licensee without the defendant being notified, thereby preserving the surprise element. The Anton Piller Order owes its name to an English case, Anton Piller KG v. Manufacturing Processes Ltd. In that case, the plaintiff applied for an order to enter the premises of the defendant, who was not given notice, to inspect and remove documents for safe keeping. The big question was whether the court had the power to grant such an order considering that it may amount to a search warrant in a civil case. A search warrant may only be issued in a criminal matter.

The celebrated jurist, Lord Denning took the position that the order was not a search warrant because it only authorized entry and inspection with the permission of the defendant. One therefore could conclude that the defendant had the choice of giving or refusing his permission when requested. Lord Denning however went on to say that if the defendant refuses to give his permission, it would be regarded as contempt of court and adverse inference could be drawn against him.

 It appears that the first Anton Pillar order in Nigeria was made in Ferodo Ltd. v. Unibros Stores by Justice Fred Anyaegbunam in 1980. While the matter had to do with a trademark, it opened the flood gates for the granting of Anton Piller orders in different types of intellectual property matters. Ferodo Ltd were sole distributors of Ferodo brake products in Nigeria. Unibros Stores who were not customers of Ferodo Limited were alleged to be selling brake linings bearing the Ferodo name. Ferodo Ltd went to the Federal High Court, claiming urgency and obtained ex parte orders restraining Unibros Stores, their servants or agents from repeating any infringement of the plaintiff's registered trademarks and that Unibros Stores should permit up to six persons (including a police officer) to enter its premises at No.168F Nnamdi Azikiwe Street, Lagos for the detention, preservation and inspection of any movable property or thing that would constitute a breach of the injunction prayed for in the suit.

The court also ordered the Defendants (Unibros Stores) to allow the plaintiff's solicitor to inspect all or any documents in the custody or under the control of the defendant relating to the suit and to produce upon oath, any documents in their possession or power relating to the matters in question in the suit.

The Anton Piller Order has raised serious controversy because it offers great opportunity for the miscarriage of justice. Is it fair and just to make such a far reaching order without listening to the other side? On the other hand, how do you deal with the die-hard pirate who is very slippery and a master of deception?

Despite the concern of some who go as far as saying that the Anton Piller Order is unconstitutional because it breaches the fundamental right to fair hearing, the process has become one of the most potent tools for dealing with piracy across the world.

However, it must not be forgotten that Lord Denning in Anton Piller KG v. Manufacturing Processes Ltd warned that the order should only be used "in an extreme case where there is grave danger of property being smuggled away or of vital evidence being destroyed".

The question of the constitutionality of the Anton Piller order appeared to have been settled in Nigeria by the decision of the Court of Appeal in Akuma Industry Ltd v. Ayman Enterprises Ltd. In the Akuma case, Justice Chukwudi Ignatius Pats-Acholonu had said, "Anton Piller order although seemingly appearing as a monstrosity has become accepted within the vortex of our legal doctrines and jurisprudence". However, the Supreme Court later struck down the entire proceeding in Akuma Industry v. Ayman Enterprises Ltd. According to the court's decision read by Umaru Atu Kalgo (JSC), the Supreme Court set aside the Akuma proceedings because according to it, the Federal High Court does not have the jurisdiction to hear any passing-off case with respect to an unregistered trademark, the very basis of the Akuma case. Since the Supreme Court did not address the issue of the Anton Pillar Order granted in the case, it appears that it is still a matter for conjecture what the court would have said about the Anton Piller Order itself. Coincidentally, the decision of the Supreme Court in the Akuma case was announced a few days before Justice Pats-Acholonu joined the apex court. Nevertheless, Anton Pillar orders continue to be made by Nigerian courts as is made in other parts of the world.

In our copyright tutorial series in Saturday Breakfast, we will continue our review of the famous Anton Piller Order, its similarities and differences with Section 25 of the Nigerian Copyright Act and the application of the principles in Nigeria.

See you next week. 

OMG! THEY COUNTED THEIR CHICKENS BEFORE THEY WERE HATCHED –

THE STORY OF THE HISTORIC FAILURE OF THE YAHOO-YAHOO GANG OF THE MUSIC INDUSTRY!

This week, the good Lord once again showed me His awesome powers against the devil. 

I have written in Saturday Breakfast about my recent health challenges. For seven weeks I was unable to go to my office at TOPS or visit COSON House where I am Chairman of the Board.

Early Tuesday morning, I was at COSON House in Ikeja for the first time in weeks. I was at the boardroom, busy on my laptop preparing my address for the COSON Annual General Meeting scheduled to hold that day. Suddenly, my phone began to ring off the hook. Some hopeless persons had posted materials all over social media that I had been whisked off by the police from Lagos to Benin-City where I was supposedly being detained and quizzed for fraud!

Naturally, my friends and family were agitated, especially with my health condition. Everybody began to call everybody and alarm bells began to ring. The COSON communication people had to take an instant photograph of me at COSON House which they posted on social media to show that contrary to the fake news, I was live at work in Ikeja and not in any police dungeon in Benin - City. It was then that nerves began to calm.

I later the same day, I chaired a full meeting of the COSON Board and thereafter, a fantastic 10^th Annual General Meeting of COSON, at the COSON House Arena. While the AGM was ongoing, another fake news story popped up all over social media declaring that COSON House had been sealed off by the police and the AGM which was streaming live to thousands of people on Zoom had been aborted!  Unfortunately for the imbeciles, the COSON 2020 AGM turned out to be probably the most successful COSON AGM ever and photos from the AGM are everywhere for all to see. Nobody sealed off COSON House. There was no reason whatsoever to do so.

I instantly knew who was behind the stupid and desperate scheme to discredit me, take over the COSON AGM or abort it. I know the make-up of the Yahoo-Yahoo Gang, who so badly want to milk the music industry and feast on music copyright at the expense of the true musicians of Nigeria. While they deploy some innocent musicians in their scam, none of the ring leaders is a musician. They are all carpet baggers and opportunists who consider music copyright their new gold mine and musicians their "mugu".

Their problem during the week was that in their desperation, they counted their chickens before they were hatched.

There was indeed a diabolical plan to 'arrest' me in Lagos, quickly drive me all night to Benin City, get a magistrate to remand me on some trumped up charge and lock me up in Benin, through my birthday, December 22, the Christmas and the New Year celebrations. The fact that my health is presently not very good made the wicked plan more sumptuous to the chief architect of this madness for which a large some of money had been made available. The plan was that if I died in detention, the better!

The chief architect of the evil plan lives in Benin City. He so badly wants to make himself the emperor of music copyright in Nigeria, using the police to harass and intimate organizations and individuals to pay money to him for music which he neither owns nor has been assigned to him. He has no visible source of livelihood. He wants to milk the music industry and feast on music copyright and become rich at the expense of the musicians of Nigeria. I have been identified as the major block to his mad ambition and I have to be taken care of.

The first stage of their plan may have worked. On Monday evening, I was accosted by four men in front of my TOPS office which I was visiting for the first time in weeks. They said they were police officers from Benin City and that I had to follow them to Area F Police station in Ikeja. I immediately called James Ononiwu, the COSON lawyer and he came immediately and accompanied me to Area F. The plan was to detain me at Area F and drive me away to Benin City, early in the morning without food, without my drugs, without a bath, wearing the same clothes. The plan failed.

I made some calls and instructions were given to the policemen to let me go. My traducers did not know what had happened. They were already celebrating. They could not wait to see my downfall and had sent the word to their social media hacks that I had been arrested and was being "quizzed" in Benin. Early morning on Tuesday while I was at COSON House Ikeja, they went to town with their fake news.

I flew to Benin City on Wednesday on my own volition. I went to Benin to confront the buffoon who signed the lousy petition they concocted and used to try to bring me down. Their stupid story is that I pocketed the coronavirus distribution which COSON sent as palliatives to its thousands of members during the COVID 19 lockdown. The coward was invited by the police in Benin to show how but failed to show up. In Benin City, I was treated with every courtesy by the police.

Fortunately, of the thousands of COSON members who got the palliative, nobody was paid in cash. It was all done by bank transfer. The records are there of all the people, their bank details, when they received the money, etc. In the distribution, there was no rancour or quarrel whatsoever. I am proud of the way it was done.  If you know any member of COSON, you can please ask him if he got the COSON Covid 19 palliative.

I hear that the stupid people want to blackmail the police AIG in Benin. They tried to use him and it did not work. Now, they are floating another fake story that I gave the AIG N10 million to protect me! Protect me from what? If I have N10 million, I will not give it to the police. I have poor people in my village who need money. I have an unfinished building in my village that needs money.

Whoever funded the embarrassing and historic failure of the Yahoo-Yahoo Gang of the music industry this week must ask for his money back. They are a letdown. Chai!

See you next week.

THE DIFFERENT WAYS IN WHICH COPYRIGHT IS INFRINGED

When we talk about copyright infringement in Nigeria, most people think of the famous or infamous Alaba market in Lagos where hundreds of thousands of unauthorized copies of music CDs and video are reproduced and widely sold. That is what is commonly called piracy, the most familiar type of copyright infringement in Nigeria. That is just one aspect of copyright infringement.

As we expand our knowledge of copyright, we must understand that copyright grants the creator of a work a wide bundle or basket of exclusive rights like the right of reproduction, the right of performance, the right to broadcast, the right of translation, etc. Any unauthorized doing of any act exclusively reserved for the copyright owner is an infringement. This is so whether it is done directly or through a third party. The areas of infringement continue to expand in the digital environment.   

For instance, copyright is  infringed by any person who without the licence or authorization of the owner of the copyright permits a place of public entertainment or of business to be used for a performance in public of a work, where the performance constitutes an infringement in the work unless the person permitting the place to be so used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of copyright.

Proprietors of events venues like hotels, sports stadia, civic centers, town halls, etc must understand the need to licence their venues for the performance of works which are controlled by copyright. They can alternatively ensure that all potential performers in their venues have obtained necessary licences for the works they wish to perform. If they do not take this seriously, they might be faced with heavy lawsuits.

It may not just be enough for the proprietor of the venue to claim that he was not aware that the performance constituted copyright infringement or that he warned the performer not to infringe copyright.

The English case of PRS Ltd. v. Mitchell & Booker Ltd probably illustrates the situation in the best possible way. Mitchell & Booker Ltd were owners of a dance hall called the Hammersmith Palais. A band was engaged at the Hammersmith Palais to provide music. One of the terms of the contract with the band was that the band should not infringe copyright and if it did, the members will be liable for such infringement. The proprietor of the dance hall went further to post a notice in the hall with the following words, "Only such music as may be played without fee or licence is allowed to be played in the hall". Despite the contract and the notice, the band went ahead to play, without authorization, music that was controlled by the Performing Right Society (PRS), the collective management organization based in London.

In the case, the court came to the decision that on proper construction of the agreement between the dance hall and the band, the band members were the servants of the dance hall owners and not independent contractors. The court also decided that the owners of Hammersmith Palais would not be absolved of copyright infringement because of the provisions of the contract or the notice placed on the premises.

Furthermore, the court took the position that the band members were acting in the course of their employment when they performed the music, the subject of the dispute and that the owners of the copyright were entitled to an injunction and damages for the infringement of their rights.

The decision by the English Court in the above matter appears to be based on the principle of vicarious liability and indicates the need for proprietors of events venues to thread carefully on the issue of copyright in music.

Copyright is also infringed by any person who without the licence or authorization of the owner of copyright performs or causes to be performed for the purposes of trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

Please, performance does not only refer to live performance as in the illustrated case. It includes the playing of recorded music on the facility. It also includes radio, television and cable broadcasts or computer transmission received on the facility. As long as it can be shown that the reception of such a broadcast or transmission is outside of a private setting, a performance in public will be deemed to have taken place. Indeed, even if the record player, radio, television set or a computer monitor is located in a private residence and the performance is clearly audible or visible in public, copyright infringement may still have occurred!

That certainly was the case in another of the many ground- breaking English copyright cases that have developed copyright practice around the world. In PRS v. Camelo, the defendant's wife managed a restaurant on the ground floor of a story building where the family lived. There were three rooms on the ground floor used by the family. The room at the back was the kitchen. The room in the middle served as the family living room. The room in front opened out to the streets and it was in this room that madam's customers were served their meals.

A radio set in the family living room was so loud that it could be heard clearly in the restaurant. The evidence was that the customers were attracted to the music. The defendant however took the position that the radio was situated in a private residence and the fact that the music was heard in the restaurant area was merely accidental.

Justice Clauson who determined the case took the view that it was irrelevant where the radio set was located. According to him, the performance took place wherever the music was audible to a person hearing it as a musical piece. In the words of the judge, "the performance may be in the private living room and extend far beyond the area and on the facts of this case I should say it extends over substantially to the whole restaurant". Of course, it was held that the defendant had infringed copyright.

This kind of infringement is pervasive in Nigeria. Culprits include nightclubs, banks, hairdressing & barbing salons, supermarkets, stadia, restaurants, luxury buses, airports, etc. Think about it while we continue our discussion next week.

See you next week.

WHAT AMOUNT OF USE OF A WORK CONSTITUTES COPYRIGHT INFRINGEMENT?

                                                                                                       

I had a discussion two days ago with my daughter Alex, whom I believe is an exceptional writer. She is also a fan of Saturday Breakfast. After about nine years of publishing Saturday Breakfast every week, I wanted to know from her which of the publications made the most impact on her. She replied that she liked the personal stories but as a creative person, the publications that taught the subject of copyright have been most useful to her.

 

I had planned to write about the continuing bad sportsmanship of Donald Trump this week but changed my mind. With love to Alex and her likes, I will dedicate the next couple of weeks to continuing our lecture on copyright, a very intriguing subject indeed. Please read on.

 

People often ask me how much use of a work in which copyright subsists will make the user an infringer of copyright. The right of control of the owner of copyright in a literary work, musical work, artistic work or a cinematograph film or video is with respect to the whole or a substantial part of the work either in its original form or in any form recognizably derived from it. In clear terms, such a copyright owner has control over the use of either the whole work or a substantial part of the work

 

Emphasis is that such use will be either in the original form or some other form that can be recognized as having been derived from the original. You may then ask: How is it to be determined that a 'substantial part' of a work has been used?

 

The term; 'substantial part' may have been first incorporated into the English Copyright Act of 1911 and accords with prior decisions of English courts.  The courts in England had consistently taken the position that copyright is not only infringed by the unauthorized use of the whole work, but by the unauthorized use of a substantial part of the work.

 

In an 1884 English case of Ager v. Peninsular & Oriental Steam Navigation Company, Justice Kay said emphatically: "To multiply copies of a material portion of a work which is entitled to copyright is as much a breach of the law, though differing in degree, as to multiply copies of the whole work".

 

In an earlier case of Chartterton v. Cave, Lord O' Hagan stated the law like this: "To render a writer liable for literary piracy, he must be shown to have taken a material portion of the publication of another, the question as to the materiality being left to be decided by the consideration of the quantity and value which must vary indefinitely in various circumstances".

 

Unauthorized use of a 'substantial part' does not only refer to quantity but to quality.  In fact, some court decisions suggest that the quality of the part used may be more important than the quantity. Although no large quantity of a work may have been used, if the part used consists of the striking features, it may still be deemed to be a substantial part and the use may amount to an infringement.

 

For example, the chorus line of a six-minute song may only have a duration of five seconds. The unauthorized use of that chorus line may amount to an infringement if the chorus line is the 'hook' in the song.  On the other hand, the unauthorized use of a two-minute verse of the same song, which verse is easily forgettable, may not be deemed to be an infringement.  From the above illustration, it appears that every case must be determined by its peculiar facts.

 

In the English case of Hawkes & Sons (London) Ltd. v. Paramount Film Services Ltd only twenty seconds of a musical work was used while the whole of the work will normally take a band four minutes to play.  The English court of Appeal still held that a substantial part had been taken and therefore, copyright had been infringed.

 

In another English case, Tinsley v. Lacy, Vice chancellor Sir W. Page Wood explained the issue in the following opinion: "The question of the extent of appropriation, which is necessary to establish an infringement of copyright, is often one of extreme difficulty; but in cases of this description, the quality of the work is more important than the proportion which the borrowed passages may bear on the whole work"

 

From the discussion so far, we certainly must conclude that every case must be determined by its peculiar facts. This is an example of the intriguing nature of copyright.

 

See you next week.

CHIEF TONY OKOROJI

Chairman

||COSON

COPYRIGHT SOCIETY OF NIGERIA LTD/GTE

COSON House, 41 Oluwaleimu Street,

Off Allen Avenue, Ikeja, Lagos

TEL: 234-802-304-3147

Email: tony.okoroji@cosonng.com

            tonyokoroji@yahoo.com