ALL THE GLORY GOES TO THE ALMIGHTY

I am humbled by what God has done with me.

I have written before that in the building of the copyright system in Nigeria, I have carried placards many times and led very risky demonstrations many-many times. On several occasions, I could easily have been shot by an "unknown soldier".

I have been seen in courts across the nation many-many times not over any private land dispute or any matrimonial cause. Indeed, I have been to court more times than many active litigation lawyers and witnessed against top corporations, governments and individuals time and time again. I have done this because in building a copyright culture, we must have court decisions that set the precedents and define the 'do's and 'don'ts.

I have gone many-many days without sleep, travelled lonely roads at dangerous hours, written opinion articles, delivered hundreds of lectures, organized myriad conferences, seminars and workshops, written a striking book on the subject because I believe that a significant contributor to the future of our nation will not be oil or gas. It will also not be buried in the soil. It will be the product of the minds of talented and brilliant young Nigerians. I verily believe that our greatest wealth and our future trading assets will be our intellectual property.

I congratulate our dear sister, the newly minted Director-General of the World Trade Organization, the very brilliant Dr. Ngozi Okonjo Iweala. Very soon she will find out that a lot of the battles between nations on trade will not be about oil or gas or shipping or steel. The new war zones are IT and IP - intellectual property.

I helped to construct PMAN. PMAN was one of Nigeria's strongest hot beds of brilliant ideas and deep thoughts. There was nothing we did without deep strategic thinking behind it. As I watch the kind of people currently engaged in what appears to be a death struggle, the banality of their fight to control the once great PMAN and the gutter language they splash all over the place, I am saddened. They clearly do not understand the reason behind the PMAN struggle. Permit me to ask: is the hunger in the land so bad that Nigeria has degenerated to the point where everything is about a meal ticket? In this case, I verily agree with the saying, 'nemo dat quod non habet'. You cannot give that which you do not have.

As you may know, I superintended over the building of an outstanding Nigerian institution called COSON which many said could never see the light of day. When the COSON House was commissioned nearly four years ago, a lot of people were surprised that there was not one Naira of government money in the magnificent building, no donor dollar from anywhere, no bank loan and no debt of any type. Thank God, the building continues to stand tall and to sparkle and many superb young Nigerians continue to work within it.

I have also written before that for close to eleven years, not one of the highly trained staff of COSON has received his or her salary one day late. No COSON member entitled to royalties was ever denied money due to him. Not until some meddlesome interlopers went to court behind our backs in a typical example of the famous Nigerian 'bad belle', to shut down the bank accounts of COSON. It might surprise many to know that no COSON member has ever paid any registration fee, monthly dues or subscription of any type yet every COSON member is entitled to some income every year. 

I also worked with others to construct the Nigerian Copyright Commission. With the help of great Nigerians like the recently departed Prince Tony Momoh, the unforgettable late Prof Vincent Chukwuemeka Ike and the living legend, Prince Bola Ajibola, the NCC was set up. I helped in writing the law creating the institution and with the unassailable Prof Egerton Uvieghara and Bayo Aiyegbusi, a straight- shooting public servant, drafted the first amendment to the law. Unfortunately, like several of Nigeria's badly led institutions, the NCC has left its main purpose and made the pursuit of Tony Okoroji its key objective.

My dedication to the intellectual property cause has never been because of a title or because of personal wealth. It is my way of serving the Almighty and my nation. That is the way I pay my tithe and praise the Lord.

Over and over again, I have been counted out by men who do not understand the concept of giving and of sacrifice. They have tried every which way to count me out. Each time they think they have finally succeeded, something new happens. They are confused and cannot understand why the good Lord has refused to count me out. I work for Him.

I have repeatedly emphasized that I drive on a full tank of faith. I serve a living God who by all measures is not finished with me. The work I do is to the glory of the Almighty. The power I use is not mine but His.

You might face trials upon trials like I have, but like Job, you will prevail. I advise that you do not worship men or money. Worship the Almighty and take care of the needs of His children. Do not fret about how you will survive. You will.

Please do not take credit for that which the Almighty does through you. It is not by your power. All glory and honour belong to Him. Drive on a full tank of faith with your tires pumped with love and do not listen to anyone who tells you that your dreams are impossible. The word, impossible, belongs to the devil.

See you next week.

EXCEPTIONS FROM COPYRIGHT CONTROL

In the last three weeks, we have examined the limits of copyright and established that while the owner of copyright has a large basket of exclusive rights, his rights are not limitless.  We have seen that in many cases, copyright does not last forever because of the terms of copyright in different works. There are also 19 exceptions from copyright control created by the second schedule to the Nigerian Copyright Act which also limit the exclusive rights of the owner of copyright.

Of the 19 exceptions, "fair dealing" appears to be one of the most misunderstood and most misused. The exception of 'fair dealing' is not a carte blanch exception. It is limited to use of the work in four clearly stated situations: research, private use, criticism and the review or reporting of current events. The exception of 'fair dealing' therefore will not protect a user against liability outside of the four mentioned situations. For instance, it is doubtful if the exception of fair dealing will protect a social club at the University of Lagos which holds a dance party at which gate fees are charged, unlicensed music is performed and unlicensed poetry is recited.

What exactly is fair dealing? The world famous jurist, Lord Denning in the English case of Hubbard v. Vosper tried to answer this question using a literary work context. He said: 

"It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportion. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression the tribunal of fact must decide"

Fair dealing, which may be a successor to the earlier term, 'fair use' appears to be targeted at the promotion of research and learning, for the benefit of the entire society and not for private gain. This exception applies to all the six categories of works protected by copyright: literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts.

It must be repeated that any public use of a protected work, whether fair or unfair, which is not accompanied by an acknowledgment of the title of the work and its authorship is an infringement of the moral rights of the author and such infringement is actionable.

Apart from "fair dealing", where a protected work is used by way of parody, pastiche or caricature, it may not constitute an infringement of copyright. In other words, members of Nigeria's current sassy generation of stand-up comedians like Ali Baba, Basketmouth, Gbenga Adeyinka, Klint Da Drunk, Gordons, Lepacious Bose, Koffi Da Guru, Okey Bakassi, Mandi Uzonicha, I Go Die, A.Y., Julius Agwu, etc., who use bits and pieces of protected songs in their rib cracking jokes may not have too much to worry about. Their hilarious acts may indeed qualify as exceptions from copyright control.

It is also not an infringement of copyright if an artistic work situated in a place where it can be viewed by the public, is included in a cinematograph film or broadcast.

For instance, if Mr. Prolific, the recently departed Chico Ejiro, while shooting a movie on the Lagos Marina, included Ben Enwonwu's great sculptural work "Sango" situated in front of the NEPA building in his movie, would he have infringed copyright? "Sango" is situated in a place where the public can view it and if the public is already free to view the work, no harm is really done by including it in a movie.

Similarly, it is not an infringement to reproduce or distribute copies of any artistic work permanently situated in a place where it can be viewed by the public.

My favorite photographer is a guy based in Ekiti, known as Femi Adagunodo. Femi is an incredibly gifted sharpshooter with eagle eyes.. What if Femi took a photograph of Ben Enwonwu's "Sango" and decided to produce post cards with the photograph for distribution or sale, it is doubtful if any action for infringement of copyright can be sustained against Femi. "Sango" is already available to the public to enjoy as much as the public pleases. However, the photograph by Femi Adagunodo will be protected by copyright because it is a creative work on its own. Any unauthorized reproduction of the postcard should therefore be an infringement of the copyright of Femi Adagunodo..

If an artistic work is incidentally included in a film or broadcast, it will not constitute an infringement. Whether the inclusion of an artistic work in a film or broadcast is incidental or fundamental, of course would be a question of fact.

There are also exceptions to copyright control with respect to educational broadcasts, use of works in educational institutions, sound recordings of previously recorded works, reading or recitation of an extract of a published literary work, non-commercial use of a work by the government, public libraries, etc.

I hope that our tour of the limits and exceptions to copyright control has been informative. I promise that going forward, there will be more tutorials on the intricate subject of copyright.

See you next week.

THE LIMITS OF COPYRIGHT (2)

Last week, we examined the limits of copyright and found that while the owner of copyright has a wide range of exclusive rights which he does not share with anybody, his rights are not limitless. For instance, we learnt that in many cases, copyright does not last forever.

For instance, copyright in a sound recording expires fifty years after the end of the year in which the recording was made. It must be noted that it is irrelevant when a sound recording is published, the term of copyright is calculated from the time the recording was made.

In the music industry, it is traditional to release some recordings of popular artistes long after they have been made. The effect of this is that the effective term of copyright is shortened. Suppose Ivory Music Ltd discovers a previously unreleased recording of the late great Ozzidi King, Sonny Okosun which recording was made by Ivory's predecessor-in-title, EMI. The copyright in the recording would have started 'ticking' when the recording was made, before the death of Okosun. Therefore, the period within which the company can exclusively exploit the recording will become severely limited.

In fact, the copyright in most of the great sound recordings made by EMI in the early seventies, immediately after the Nigerian civil war, such as the recordings of the Strangers of Owerri, the Wings, Funkees and Apostles of Aba, Joni Haastrup's Monomono, Peacocks International Band and the early recordings of Fela Ransome Kuti should all be falling into the public domain soon, because they would all be fifty years old.

Similarly, the different owners of copyright in the great sound recordings of Ebenezer Obey's Board Members, Prince Nico Mbarga's Sweet Mother, Victor Uwaifo's Joromi, the early hits of Oriental Brothers, etc., should be on the look out as the term of copyright in these recordings come to an end.

Unlike a cinematograph film or photograph, it is indeed possible for the copyright in a sound recording to expire before the work is published.                                             

It is not clear what the philosophical underpinning is to this dichotomy in the law between the term of copyright in a sound recording and the term of copyright in a cinematograph film or photograph.

The term of copyright in a sound recording must be distinguished from the term of copyright in the musical or literary work embedded in the recording. The copyright in the sound recording may have expired while the copyright in the musical work still subsists. The practical consequence is that shortly, it will be possible for a radio station in Nigeria to broadcast any of the early 1970 sound recordings of EMI without obtaining a licence. The station may however still need to get the licence of the owners of the copyright in the songs embedded in the recordings. If the station does not, it will be liable for copyright infringement.

The term of copyright in a broadcast appears to be straight forward. Copyright in a broadcast expires fifty years after the end of the year in which the broadcast first took place.

Beyond the limitations set out by the different terms of copyright in different works, there are nineteen exceptions to the rights of the owner which are provided in the second schedule to the Copyright Act. What this means is that any of the nineteen acts listed in the second schedule may be done without the authorization or licence of the copyright owner. The doing of such acts will therefore not constitute copyright infringement.

It is important to examine the exceptions carefully, especially "fair dealing", to fully understand to what extent they can truly immunize a user from the liability of copyright infringement. Next time, we shall attempt such examination.

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

THE LIMITS OF COPYRIGHT

Anyone may be justifiably frightened by what appears to be the unlimited powers of the copyright owner. Indeed, it may appear that regardless of one's best efforts, it is impossible not to be a copyright infringer. That is not absolutely correct.

There are restrictions to the rights of the copyright owner. These restrictions attempt to find a compromise between the desire to protect the rights of creators of intellectual property; the need to ensure that the rules are not such that make life very inconvenient for the average person; and the desire to ensure that the creations of members of the society are of benefit to the entire society.

It has been said that the rights conferred by copyright are monopoly rights. Every monopoly confers benefits on some and burdens on others. The benefits of copyright are conferred on the copyright owner and the burden on the members of the public who may wish to use the work. To strike a balance therefore, the Copyright Act sets out limitations to the rights of the copyright owner.

You may have believed that the rights conferred by copyright are enjoyed forever. No. Apart from the moral rights, which are perpetual, the rights conferred by copyright expire after a period set out by law. This period known as the term of copyright depends generally on the nature of the work in question.

With the exception of photographs, all literary, musical and artistic works enjoy copyright protection from the time of creation of the work to the end of seventy years after the end of the year in which the author dies.

The question may then be asked, when will the copyright expire in "Shakara", "Lady", "I no be Gentleman", "When Trouble Sleep", "Suffering and Smiling" and all the other great compositions of the Abami Eda, Fela Anikulapo Kuti?

Since Fela died in August 1997, the term of copyright in his songs will end seventy years after December 31, 1997. Therefore, the successors-in-title to Fela should continue to have exclusive rights to his great works up to December 31, 2067. It then follows that from January 1, 2068, Fela's works should enter the public domain. In other words, anyone may be able to exploit those works without being held for any copyright infringement, provided the moral rights of Fela, which are perpetual, are respected.

"Identity" is arguably one of the most popular songs ever composed in Nigeria. The sudden death of the creator of the song, Oliver De Coque in 2008 does not make "Identity" the property of everyone. Oliver's heirs or assignees should continue to enjoy exclusive rights to the song, "Identity" and his other hit songs such as "Ibiri Kam Mbiri" and "Peoples Club" until December 31, 2078. Thereafter, all of Oliver's songs will enter the public domain.

Some of the implications of the rule discussed above are that for literary, musical or artistic works (except photographs), the copyright in all the works belonging to an author expire at the same time, regardless of when the works were made. In a case where the copyright has been transferred, assigned or sold, the expiration of the copyright depends on the death of the author and has nothing to do with the death of the eventual owner of copyright.

We have so far looked at the term of copyright in literary, musical or artistic works (other than photographs) in cases where the author of the work is a biological person. There are times when the law considers an institution, organization or corporate body as the author of a literary, musical or artistic work. Since such an author is not a biological person, it will be illogical to fix the term of copyright, in such cases, based on the time of the death of the author. In a case where an institution, government or a corporate body is the author of a literary, musical or artistic work, the copyright expires seventy years after the end of the year in which the work was first published.

Copyright in a cinematograph film or photograph, on the other hand, expires fifty years after the end of the year in which the work was first published.

While copyright in a literary, musical or artistic work other than photograph cannot expire during the lifetime of the author, it is practically possible for copyright in a cinematograph film or photograph to expire while the author is still active, especially if his productive career took off early in his life.

Copyright in Jab Adu's movie, "Bisi, Daughter of the River", which starred the beautiful Nigerian actress and singer, Patti Boulaye, should expire in the year 2027. If Jab Adu who passed on in 2016 had lived longer, the copyright may have lapsed during his lifetime because the movie was published in 1977 when Jab was quite active.

Similarly, copyright in some of the earlier photographs of Sunmi Smart-Cole may be running out. This is because Sunmi, the all-round artiste, embraced photography early in his life.

"The Gardener", the sweet home video movie produced and directed by Patrick Doyle which had gentleman singer and actor, Tunde Obe as the lead character was published in 1998. Copyright in "The Gardener" should expire on December 31, 2048. Therefore, from January 1, 2049, any broadcasting station may be able to broadcast "The Gardener" as much as it wants, without infringing the copyright of Patrick Doyle or his assignee or licensee as the work would have fallen into the public domain.

I promise that we will continue with this intriguing subject, the limits of copyright, in subsequent weeks. I thank you for being part of Saturday Breakfast.

See you next week.

PRINCIPLES GUIDING THE GRANTING OF AN ANTON PILLER ORDER.

Three weeks ago, we started a discussion in Saturday Breakfast of the famous Anton Piller Order deployed by litigants in Intellectual Property matters to take suspected infringers by surprise. As we have shown, there are serious arguments for and against the the Anton Piller Order. There is no question that the order which is obtained ex-parte can be very intrusive. As a result, some have gone as far as saying that it is unconstitutional.

The Anton Piller Order is part of our common law heritage. Efforts have however been made in Section 25 of the Nigerian Copyright Act to give the order statutory flavour within our country.

Because of the peculiar nature of the Anton Piller Order, certain principles have been developed to ensure that the order is not granted indiscriminately.

In England, a Consultation Paper on the Anton Piller Order published by the Lord Chancellor in 1992 set out certain principles that must be considered before an Anton Piller order is granted. A study of the practice in Nigeria suggests that the principles are the same. I wish to summarize the principles in this piece.

Just as it is the practice in most applications for practically any ex-parte order in Nigeria, an application for an Anton Piller Order must come with a prima facie case against the defendant before a judge may grant the order. It ought not to be forgotten that an Anton Piller Order is granted to enable the plaintiff obtain evidence suspected to be in the custody of the defendant which the plaintiff needs to prove his case in an intellectual property matter. It therefore means that if there is no triable case against the defendant, the order ought not be granted. The order should also not be an end in itself but a means to an end.

The danger to the plaintiff to be avoided by the grant of an Anton Piller Order must be serious. If there is an application for an order to prevent the destruction of evidence, it must be clear that the evidence is major if not critical to the case of the plaintiff. The onus therefore is with the plaintiff to show through affidavit evidence why this intrusive order should be granted.

The risk of destruction or removal of evidence must be a good deal more than merely possible. There must be reason to believe that if an injunction was granted against the defendant to preserve the evidence in question, the defendant will disobey such an injunction.

A judge granting the order would ensure that the harm likely to be caused the defendant or his business by the execution of the order must not be excessive or out of proportion to the legitimate object of the order.

Once again, as it is the practice in practically all ex-parte applications for injunction, the plaintiff would be required to give an undertaking to pay damages to the defendant if at the end of the day, it is determined that the order should not have been granted.

Justice Tajudeen Odunowo, then of the Federal High Court, restated some of these principles in Musical Copyright Society Nigeria (Ltd/Gte) v. Details Nig. Ltd. He went further to emphasize the absolute necessity of full disclosure of relevant facts. In other words, an applicant for the order must not suppress or fail to disclose any fact which is relevant to the granting of the order.

Musical Copyright Society Nigeria (MCSN) had on 8th May 1995 obtained a Section 25 order against Details Nig. Ltd. The defendant applied to discharge the order on the ground that it was obtained fraudulently. According to the defendant, relevant facts were not disclosed to the court before the order was granted. Justice Odunowo agreed with the defendants. In discharging the order, he made the following statement:

"Until the defendant raised the issue in their further and better affidavit in support of the present application, the plaintiff did not allude to the fact that they had applied for registration as a collecting society and that their application had been rejected by the Nigerian Copyright Council._If it has been brought to my attention that there was a pending controversy as to the status of the plaintiff company, I would certainly have been most reluctant to grant the ex parte order as I was virtually misled to do on that occasion. Now that all the full facts have been exhumed, there is no basis for continuing to sustain the said order which I have now discovered to have been granted under a misapprehension of material facts."

Dear readers of Saturday Breakfast; I hope I have not wasted your time in our lengthy discussions on the Anton Piller Order which I consider very important in the fight against copyright infringement. In our future tutorials, we will dwell on other aspects of the domestic and international dimensions to copyright and related rights.

See you next week.

BYE-BYE DONALD TRUMP!

I first served this piece in Saturday Breakfast of November 7, 2020, over two months ago. With the events in Washington DC this week, I am compelled to suspend our tutorials on copyright and serve the piece again because there are monumental lessons to be learnt from the Donald Trump Tragedy. Please humour me by reading this piece to the end and leaving a comment...  

I did not think that a man with the obvious character flaws of Donald J.Trump would ever be elected President of the United States of America. I thought that Americans are too smart to fall into such a hole.  I was wrong.

Let me confess that the election of Donald Trump left me devastated. It made nonsense of everything I believed in. I was terribly confused. For weeks, after that crazy Tuesday in November 2016, I refused to watch any TV news and weaned my addiction to my once favourite website, politico.com. The idea of seeing Donald Trump addressed as President of the United States was too much for me to bear.

I am an event organizer and love big theatre. Which theatre in the world is bigger than the inauguration of the President of the United States of America? Which show has ever attracted a live audience that big? Which big sporting event attracts a worldwide TV viewership that massive? I did not watch the inauguration of Donald Trump as President of the United States. For the first time, I was not interested in big theatre.

You are damn right if you say that I was acting like a jilted lover. True. Americans jilted me. I was going through that kind of pain and emptiness you feel when the one you love suddenly walks out on you. I love America. I am inspired by its ability to manage its diversity and use its coat of many colours to produce the most beautiful garment the world has ever known. I love the boldness of America that screams at you, "nothing is impossible!". I am awed by the intricacy of the New York Subway, the audacity of the Lincoln Tunnel, the sheer dizziness of the Manhattan skyline.  

I have been to Hollywood and marvelled at the depth of thought that conceived the gargantuan Universal Studios and the almost indescribable Disneyland.

Today, I spend practically all my time promoting the Nigerian creative industry and daring it to be bold. That surprises a lot of my family and friends who know that I am a science guy with an 'A' in Physics, Chemistry, Biology, Mathematics and Additional Mathematics. They do not understand how I ended up making music for a living. You think I understand it?

The truth is that despite all the metamorphosis in my life, I remain a great believer in empiricism. I am a plus this minus this equals this kind of guy. If you cannot explain it to me, I do not believe you. That is why I am convinced that 'juju', 'jazz', 'ogun', 'otumokpo' and all their brothers are all a big scam, a scam that has warped the thinking of Africans and left us bewildered as the rest of the world is splitting atoms, querying genes and probing Mars. In Africa, we still want to eat omelettes without breaking eggs.

You may then understand why I am shocked that people as smart as Americans could not see-through Donald Trump and understand that this guy is the king of 419. If thousands of miles away, I could see that this guy lies and lies, practically every time he speaks, why did Americans think that he would tell them the truth? If I could see that there had to be a sinister reason why this guy would not present his tax returns to his people, how come the brilliant Americans could not see it? If from Lagos Nigeria, I could see that this man-child who cannot keep his fingers off his smart phone, is a danger to everyone, how did the Americans come to the conclusion that they could trust him with their nuclear codes?

As Donald Trump turned the once proud White House into the set of a permanent reality show, even the Russians, the mortal enemies of America were openly laughing and openly mocking America. Vladimir Putin must have had a time of his life as he played Donald Trump like an acoustic guitar.  Donald Trump has fought everybody around him, firing everyone who did not agree with him. This apprentice in the Whitehouse without the intellect to understand diplomacy, thought he was on TV.

I hope the world has learnt a critical lesson. The skills required to build a skyscraper are different from the skills required to lead a free people in a democracy. The profit motive is driven by extreme self-centeredness, the kind that the Donald has in abundance. To lead a free people, you need to have extreme selflessness, the kind that Nelson Mandela had in abundance and which Donald Trump cannot understand.

This week, Americans woke up from their four-year old nightmare. They fired Donald J. Trump. Tired of the commotion and endless tweets and the thousands of Americans dying from the coronavirus, Americans have voted for a different way of doing things.

Donald Trump in typical fashion is unlikely to walk away from the Whitehouse like a gentleman. He will throw tantrums. He will curse everyone. He will kick. He will manufacture every conspiracy theory imaginable. Oh! the election has been stolen from him even though he is President and controls all the levers of power! In every direction, he will cause trouble and destroy the institutions even though his opponent received about seven million more popular votes across the country and won far more electoral college votes than him.

I know many Nigerian Christians who think Donald Trump is one of them and think they have to support him. No!            

The Donald Trump problem however is not just an American problem. It is a challenge to the entire humanity. How did this guy with absurd ego and obvious lack of self-control come to be in control of the world's biggest arsenal of nuclear weapons? If it does not bother you, it bothers me.

The world is a better place without a Donald Trump at the Whitehouse. There is a lot of a work to be done to bring humanity together and all hands need to be on deck. The first part of the job has been done by Americans who have looked at the Donald in the face and said to him, "you are fired!"

See you next week.

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