August 25, 2013 — About a month ago, the Nigerian Copyright Commission (NCC) released a list of 40 cases and convictions brought against persons involved in the sale and possession of pirated films, infringement of broadcast rights, book, software and sound recording piracy, and other related offences. Some of the convictions ranged from penalties of ₦2,200 up to ₦250,000 with the maximum prison sentence concurrently amounting to two years imprisonment.
While we were quick to commend the NCC for its investigative efforts and for making the initial arrests, we wondered whether or not some of the convictions would have any deterrent effect. Take for example, Case No. FHC/KD/8C/12, NCC v. Sunday Ayodele, where the highest financial fine amongst the 40 cases was issued, the accused was charged with possession and offering for sale 25,442 copies of fake optical discs, including CDs and DVDs worth over ₦1.5million (about $8,500) but was convicted and sentenced to 6 months imprisonment or the option of fine of ₦250,000 (approximately $1,500). Anyway, not having immediate access to the complete facts of each of the cases we could not draw a full conclusion as to how severely we should punish those who infringe copyright. So we turned to the copyright and anti-piracy laws as contained in the Copyright Act in Nigeria and here is what we found:
Under Nigeria’s Copyright Act (Section 20), if a person is convicted by the Federal High Court for the sale, possession or distribution of copyrighted material for purposes of trade or business, he or she is liable to a fine of ₦100 for every copy of the infringing work and/or to a term of imprisonment not exceeding two years.
If a person is convicted for the unauthorized rental, lease, hire or loan of copyrighted material to the public for commercial purposes, he or she is liable to a fine of ₦100 for every copy dealt with and/or imprisonment for six months.
After reading the above, we realized that on one hand a person could confidently argue that after making unauthorized sales of millions of copyright-protected material, having to pay a fine that does not come close to the amount of the sales/income generated from the unauthorized sale or the costs of the items seized, will not deter future infringement. Again, a person could literally interpret the provisions of the Act to mean that the financial penalty depends on the scale of infringement, such as the number of copies made (but won’t that amount to much more than ₦250,000 for the Sunday Ayodele case?).
On the other hand, we wondered if an amendment for stiffer penalties was the way to go (would law makers want to create resentment for copyright laws) or would creating a series of graduated sanctions beginning with lighter punishment for first-time offenders be the way to go? Would the initial notification of copyright infringement stop the crime in question from continuing since accused persons would know that they have been caught? And would a graduated sanctions system allow accused persons pay a fine for the initial infringement and mend their ways before stiffer penalties are imposed?
Interestingly, the Copyright Act also provides that a person who is convicted for making, causing to be made, or found in possession of any plate, master tape, machine, equipment for the purposes of making any infringing copy of a copyrighted work is liable to a fine of an amount not exceeding ₦1,000 for every copy dealt and/or to a term of imprisonment not exceeding five years.
This brings us to Case No. FHC/B/43C/2010, NCC vs. Mr. Godwin Kadiri (the accused received the highest prison sentence amongst the 40 cases), where the accused was not only charged, convicted and sentenced for the unauthorized sale, offering for sale and distribution for commercial purposes, copies of the whole or substantial part of Entertainment Highway Limited (HiTV) broadcast/channels but was convicted and sentenced for the unauthorized possession of equipment and contrivances for the purpose of illegal rebroadcast of the whole or part of HiTV channels. The accused was sentenced to six and a half years imprisonment (concurrently amounting to two years) without the option of fine.
But how severally should we punish those who infringe copyright?
How do we access who gets what punishment, how much fines would deter copyright infringement and should those who infringe copyright receive warning before actual prison sentences. We do not have the answers to these question but can only ask if the punishment fits the crime?
This article is intended to provide general information about the subject matter. Professional legal advice should be sought about specific circumstances.