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Nigerian Copyright Commission v. Ubi Bassey Eno & Ors

Federal High Court Calabar Judicial Division

Judgement delivered on Tuesday, December 12, 2006
Citation: 49 NIPJD [FHC. 2006] 31C/2003, Affirmed by CA/C/46/2007
Charge No. FHC/CA/31C/2003       Jurisdiction: Nigeria

Judgement delivered by Honourable Justice Ajakaiye, J.

Copyright Infringement, Illegal Re-broadcasting and Transmission, Possession of Equipment for Illegal Re-broadcasting and Transmission, Section 18 (1) – (3) Copyright Act 1990 — The court had to decide on the four charges brought against three accused persons for allegedly infringing copyright belonging to Multichoice Africa and Multichoice Nigeria.

I. FACTS

The 1st accused with two others, namely, Mr. Ota Bassey Eno (2nd accused) and Digital Entertainment Television (3rd accused), were arraigned before the Federal High Court, Calabar, on the four count charge as follows:

Count One:

That you (1) Ubi Bassey Eno “M”, (2) Ota Bassey Eno “M” and (3)  Digital Communication Network (Nig.) Ltd. all of No. 28, Akim Close, State Housing Estate, Calabar, Cross River State on or about the 8th day of September, 2003 within the Calabar Judicial Division of the Federal High Court did have in your possession two (2) Nos. Multichoice Satellite decoders and two (2) Nos. Multichoice smart cards being equipment/contrivances for the purposes of illegally re-broadcasting/transmission of the whole or substantial parts of Multichoice Programs (channels) in which Copyright subsist in favour of Multichoice Nigeria without the consent or authorization of the copyright owners and thereby committed an offence contrary to and punishable under Section 18(1)(c) of the Copyright Act (Cap 68) Laws of the Federation of Nigeria 1990 (as amended).

Count Two:

That you (1) Ubi Bassey  Eno “M”, (2) Ola Bassey Eno “M” and (3)  Digital Communication (Nig.) Ltd., all of No. 28, Akim Close, Stale Housing  Estate, Calabar, Cross  River State on or about  the  8th day of September, 2003 within the Calabar Judicial Division of the Federal  High Court  by way  of rebroadcasting and/or transmission through Digital Communication Network  (Nig.)  Ltd. did sell or let or hire or for the purposes of trade or business, exposed or offered for sale or hire the whole or substantial parts of Multichoice Nigeria Programs (Channels) in which Copyright in Broadcasts  subsist in favour of Multi-choice Nigeria, without the consent or authorization of the Copyright Owners and thereby committed an offence contrary to and punishable under Section 18(2)(a) of the Copyright  Act  (Cap 68)  Laws of the Federation of Nigeria 1990 (as amended).

Count Three:

That you (1) Ubi Bassey Eno “M”, (2) Ota  Bassey Eno “M” and (3) Digital Communications (Nig.) Ltd. all of  No. 2B, Akim  Close, State  Housing  Estate, Calabar, Cross River State on or about the 8th day of September, 2003 within the Calabar Judicial  Division of the Federal  High Court did have  in your possession other than for your private or domestic use two (2) Nos. Multichoice Satellite  decoders and  two (2) Nos. Multichoice Smart card properties of Multichoice Nigeria and thereby   committed an offence contrary to and punishable under Section 18(2)(c) of the Copyright Act (Cap 68) Laws of the  Federation of Nigeria 1990 (as amended).

Count Four:

That you Ubi Bassey Eno “M”,  Ota  Bassey  Eno “M” and Digital Communications (Nig,)  Ltd,  all  of  No, 2B, Akim Close, State Housing Estate, Calabar, Cross  River State on or about  the  8th  day  of  September, 2003 within the Calabar Judicial Division of the Federal High Court without the consent  of Multichoice Africa and Multichoice Nigeria, did distribute in public for commercial purposes by  way of re-broadcasting and for transmission Multichoice Programs (channels) through Digital Entertainment Television (DET) to wit: Movie Magic, Channel O,  M-Net, Super-Sports and Discovery Channels, etc, in which copyright in broadcast subsists by way of rental, lease, hire, loan or similar arrangement and thereby committed an offence contrary to and punishable under Section 18(3) of the Copyright Act (Cap 68) Laws of the Federation of Nigeria 1990 (as amended),”

The  charges  were  read  to  the  accused  persons. All the accused persons pleaded not guilty to the charges.

The prosecution called two witnesses to testify in support of the charge i.e. namely,  PW1,  Federick  Coeuraad, who is a staff of Multicholce Company and PW2, Elijah Johnny Akpan, a staff of the Respondent, Nigeria Copyright Commission.

PW1 testified at pages 13 and14 and cross-examined at pages 16 and 17 of the record. PW1, Frederick Coeuraad Jonker, testified at pages 13 and14 of the record as follows:

“Frederick Coeuraad Jonker, residing at 24 Gail Street, Roodepoo in South Africa. Employee of Multichoice Africa sworn on Holy Bible states as follows: My duties include investigation of  Copyright  violations against the Multichoice on the Africa Continent. I have been on this job for the past 4 years in the employment of Multichoice but I have been doing this type of work for many other Companies for the past 13 years i.e. anti-piracy job for the past 13 years. I know the Accused Persons and particularly the 3rd Accused.

Sometimes in September 2003, we received information that somebody is broadcasting our channels in Calabar.  We then filed a complaint at the Nigerian Copyright Commission regarding the matter in Calabar.   On 8/9/03, we proceeded with the Nigerian Copyright  Inspector  to Calabar.  We monitor the broadcast of D. E. T, (which is the subsidiary of the 3rd Accused). We confirmed that our programmes were broadcast by that channel i.e. D, E. T.  After identifying our channel, the   Nigerian  Copyright Inspector with me started to record the broadcast.  Multichoice Africa  is  a  pay  television  company i.e.  a customer  purchases  our  SMART CARD,  which enables them to view our programmes.  This enables the company to  monitor   its  programmes.  If  a  person  purchases   our Smart Card, he is able to view our programmes. If however he fails to pay his subscriptions, the  service is discontinued. This is done by the means of an Inscription technology device by a company  known as IRDETO.  It was through this device  that  we  were  able to  trace the Smart Card that was used to rebroadcast our programmes in this case.

In this case, the accused persons legally purchased our Smart Card. The accused persons  purchased the Smart Card for single use only as distinct  from use for example, Hotel or Club,  etc.  Even though the Accuseds’ Smart Card was purchased and registered for single use, the accused later used it for rebroadcasting operations. I want to say that if a subscriber wants to use our smart  card for commercial purpose, we usually enter into a specific agreement with that person   stipulating  the  terms  and conditions  for  which  the  smart  card  can  be  used  for  that purpose.

In this case,  there  was  no  agreement  between my company and the accused  persons  to use our channel for commercial purpose. I was able to identify the Accused’s Smart Card as engaging in illegal  rebroadcast of our  programme by the use of finger printing  technology i.e a command is sent by Multichoice Africa to all the Smart Cards. By this each Smart card will identify itself  with  a unique  code  and  that  unique  code  represents a unit smart card number. In this case, we received  the  relevant  code and  it  was  recorded  by  the Copyright Inspector. I can identify the code if the recording  is played.

On 9/9103, I in company of the copyright Inspector went to the Police Station to get the assistance of the police to carry out a raid on the spot from where the rebroadcasting operation originated. On getting there, I stayed back in the vehicle and the Copyright Inspector with the Police Officer went  into the place where the rebroadcasting took place. After sometime, I was called in to the broadcasting room of the rebroadcasting company. Upon entering into the rebroadcasting room, I saw two decoders connected  to the broadcasting equipment. The Smart Card identified by me a day before was the only Smart Card that was active in the decoder at that point in time.

I then took digital photographs of the Smart Card and the decoders photographs. The Smart Card  actively used for the rebroadcasting is Card No. 00061245189. I seek to tender the digital photographs in evidence.”

Under cross-examination,  PW1 testified at pages 16 and 17 of the record as follows:

“I want to say that a report of an alleged violation of our copyright was made by our agent  I moved in and got it confirmed the physical decoder and smart card is the property of the purchaser but the programme content remains the property of the Multichoice  Company  which  has  copyright  over  it. For  example  all the  channels which  constitute  the programme content belong to Multichoice. It is not permissible  to broadcast CNN programme through the channel of a company licensed to do so by CNN without authorization from that company……… I want to say again that the decoder (physical) was  lawfully purchased by the accused but what is wrong is the use of the smart card was put to…”

PW1 testified as to the monitoring and recording of the Appellant and co- accused.  He testified that Multichoice was able to trace the infringing broadcast through the means of an inscription technology known as IRDETO by which means the Smart Card used for the rebroadcasting was traced.  The tracing is usually done by identifying the unique code of every Smart Card by a command sent by the Multichoice Company to every Smart Card to identify itself.  It was through that means that the Smart Card by which the Multichoice programmes was broadcast by the 3rd accused was traced.  PW1 also testified that the use of a Smart Card for commercial purpose is usually subject of specific agreement between Multichoice and the purchaser and in the instant case there was no such agreement.

PW1, further testified that on getting to the business premises of the 2nd accused on 9/9103, the two transmitting decoders were found. The Smart Card earlier identified through the inscription technology was also found there and it was actively used for the rebroadcasting of Multichoice programmes by the 3rd accused, and the number of the smart card is 00061245189. Also, that the unique code number of the Smart Card as it appeared on the television  screen is BDlIKNPLSTU.

PW1 testified as to the monitoring and recording of the Appellant and co- accused.  He testified that Multichoice was able to trace the infringing broadcast through the means of an inscription technology known as IRDETO by which means the Smart Card used for the rebroadcasting was traced.  The tracing is usually done by identifying the unique code of every Smart Card by a command sent by the Multichoice Company to every Smart Card to identify itself.  It was through that means that the Smart Card by which the Multichoice programmes was broadcast by the 3rd accused was traced.  PW1 also testified that the use of a Smart Card for commercial purpose is usually subject of specific agreement between Multichoice and the purchaser and in the instant case there was no such agreement.

PW1, further testified that on getting to the business premises of the 2nd accused on 9/9103, the two transmitting decoders were found. The Smart Card earlier identified through the inscription technology was also found there and it was actively used for the rebroadcasting of Multichoice programmes by the 3rd accused, and the number of the smart card is 00061245189. Also, that the unique code number of the Smart Card as it appeared on the television  screen is BDlIKNPLSTU.  It is significant to  note  that  the  evidence  of  PW1 was not controverted or contradicted  in any material  particular.

PW2, Elijah Johnny Akpan, a Copyright Inspector with the Nigerian Copyright Commission, confirmed the evidence of PW1 about the report made and concerning the infringement of the Multichoice Company’s Copyright by the 2nd accused. PW2 at  page 19 – 22 of the record testified that he went to the premises of the 3rd accused where the rebroadcasting was confirmed and was even in progress. PW2, confirmed the discovery of the decoders and the Smart Card  in the  office premises of the 3rd accused. The  items recovered from the office of the 3rd accused were tendered by PW2 and they are as follows:

(1)    Exhibit A –  Copy of the inventory  of all the items seized.

(2)  Exhibits B & B1 – two Decoders.

(3)   Exhibits C & C1 – two Smart Cards.

(4)    Exhibit D – list of Subscribers of the Appellants for the year 2003.

(5)    Exhibits E & E1 – List of addresses of subscribers.

(6)    Exhibit F – Installation Forms.

(7)     Exhibit G – Appellants’ handbill.

(8)   Exhibit H – Appellants’ statement at the Police Station before PW2.

(9)    Exhibit J – Tape containing the rebroadcasts programmes of Multichoice by the 3rd accused.

Excerpts from PW2 at page 19 of the record are as follows:

“PW2: Elijah Johnny Akpan residing at No. 3 ldaha Ufon Street, Uyo, Copyright Inspector sworn on Holy Bible states as follows:

My duties include arresting those who are involved in Piracy of intellectual works. That is unauthorized use of another person’s intellectual work.  I know the accused persons. I remember  8th and 9th of September 2003.  Before the 8th of September 2003, Multichoice Company lodged a report  before the Copyright Commission complaining that the 3rd accused rebroadcast their channels without due authorization.

I wish to say that I know PW1. He  came in person to lodge the said complaint against the 3rdd accused. A letter was also written to that effect. 

I was assigned  to carry  out necessary investigation on the allegation made against the 3rd accused. On the 8 September 2003, PW1 and I came to Calabar to effect monitoring of  the alleged violation by the 3rd accused. We used Television Antenna to monitor the rebroadcasting. The channels we   monitored were K- World and CNN. I told PW1 to convince me that the channels were pirated. He called his office in South Africa (i.e. Multichoice Office). Thereafter some letters appeared on the television screen we were using for the monitoring exercise. I recorded the said letters as well as the  broadcast. I can identify the letters as recorded by me.”

In respect of Count 1, the evidence of PWs 1 and 2 proved clearly beyond reasonable doubt that the Appellant and his co-accused at the trial court had in their possession the Multichoice Satellite Decoders, Exhibits B and B1 and two Multichoice Smart  Cards, Exhibits C and C1, being equipments/contrivances for the purposes of illegally  rebroadcasting/transmitting of Multichoice Programmes (Channels) in which copyright subsist in favour of Multichoice Nigeria  without consent  or authorization of Multichoice Nigeria, the copyright owners, Contrary to section  18(1) of the Copyright  Act, Cap 68 LFN, 1990, as amended.

PW2, also testified that he was able to trace the coded smart card to its user through a computer data base and that  the Appellant confirmed the rebroadcast of the K-World and CNN programmes. The evidence of PW2 was not controverted or contradicted.

The 1st and 2nd accused persons testified in the defence. The 3rd accused being a corporate body did not testify.

II. JUDGEMENT

At the conclusion of the trial, the trial Judge convicted the 1st and 3rd accused persons for the offences under counts 1, 2 and 4. The 2nd accused was discharged and acquitted. Count 3 was struck out.

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