Copyright

• Pages: 545-562

545 Copyright law Paras. 1201-1203

COPYRIGHT LAW

(1) COPY RIGHT LAW

1201. Function of the Copyright Law.

“As it has been often stated, the function of Copyright Law is to protect from annex-

ation by other people, the fruits of another’s work, labour, skill or taste and the defen-

dant having a monetary benefit from such an annexation is a secondary consider-

ation.” – Per Belgore, J. in Oladipo Yemitan v. The Daily times (Nig.) Ltd. & Anor.

Suit No. fhc/l/1/1980; (1980) F.H.C.R. 186 at 190.

(2) EXCLUSIVE LICENCE TO PUBLISH

1202. Exclusive licence to publish.

“An exclusive licence, having regard to the provisions of the Act, is a licence in

writing signed by the owner or by the person duly authorised by the owner in that

behalf authorising the grantee, to the exclusion of all other persons, including the

grantor, to exercise the right which by virtue of the Copyright Act, 1970 would (apart

from the licence) be exercisable exclusively by the owner of the copyright.” – Per

Adio, J.C.A. in Adenuga v. Ilesanmi Press Suit No. CA/I/49/89; (1991) 5 N.W.L.R.

(Pt. 189) 82 at 98.

1203. Onus of proving the exclusive licence to publish.

“The submission in the appellant’s brief was that the onus was on the respondent to

prove that it had authority to publish the book in the manner recognized by law. It was

further submitted that as the licence which the respondent alleged that it had was an

exclusive licence which under Section 10(3) of the Act must be in writing, the re-

spondent did not discharge the onus on it and, for that reason, judgment should have

been given for the appellant. The submission in the respondent’s brief was that the

learned trial Judge was in order to infer from the alleged conduct of the appellant that

the appellant granted a non-exclusive licence to the respondent to publish the book.

As what the respondent averred in paragraph 13 of the Statement of De-

fence that what it had was an exclusive authority or exclusive licence to publish the

book the onus was on it to lead evidence to establish the averment. An exclusive

licence, by virtue of Section10(3) of the Act must be in writing and could not be

inferred from conduct as in the case of non-exclusive licence. Failure of the respon-

dent to prove the averment in paragraph 13 of the Statement of Defence in the

manner recognised by law meant that it did not have the exclusive licence which it

claimed that it had. For that reason, the learned trial Judge should have entered

judgment for the appellant. It was an error in law for the learned trial Judge to hold

that the respondent had a non-exclusive licence to publish the book when what the

respondent claimed in its Statement of Defence that it had was an exclusive licence.”

– Per Adio, J.C.A. in Adenuga v. Ilesanmi Press Suit No. CA/I/49/89; (1991) 5

N.W.L.R. (Pt. 189) 82 at 98.

Paras. 1204-1206 Vol. 5: COPYRIGHT LAW 546

(3) INFRINGEMENT OF COPYRIGHT

1204. A person knowing or suspecting that copyright exists and makes a

mistake as to the owner is liable under an action for infringement.

“It is undoubtedly true that 1st and 2nd appellants who are the publishers of the

infringing article were not, and did not at any time claim to be in any other manner

responsible for the infringement. They claim that the article was the literary produc-

tion of 3rd appellant. Their evidence was that they had the authority of 3rd appellant

to publish the article. The evidence was not intended to demonstrate and they did not

succeed in establishing that they were not aware of and had no reasonable grounds

for suspecting that the copyright of the article they were publishing was in someone

else and not 3rd appellant. They believed that the copyright was in 3rd appellant. – See

John Lane, The Bodley Head Ltd. v. Associated Newspapers Ltd. (1936) 1 K.B.,

at p. 721. In this, the Court held they were in error and were nevertheless liable.

Section 8 of the Copyright Act of 1911 of England relied upon by the defendants is in

pari materia with our Section 12(2) of the Copyright Act, 1970 relied upon by the

appellants in this case.” – Per Karibi-Whyte, J.S.C. in Plateau Publishing v. Adophy

Suit No. S.C. 131/1985; (1986) 4 N.W.L.R. (Pt. 34) 205 at 232.

1205. An account of profit in an action for infringement of copyright was

originally an equitable remedy.

“The plaintiff will only be awarded account of profits, which in its origin was an

equitable remedy. In Colburn v. Simms, (1843) Ha. 543 at p. 560 the principle upon

which account for profits is awarded is stated as follows: - “It is true that the Court

does not, by an account, accurately measure the damage sustained by the proprietor

of an expensive work from the invasion of his copyright…….. The Court, by the

account, as the nearest approximation which it can make to justice, takes from the

wrongdoer all the profits he has made by his piracy, and gives them to the party who

has been wronged. In doing this the Court may often give the injured party more, in

fact, than he is entitled to………. The Court of equity, however, does not give any-

thing beyond the account.” Now although it is question of law that account for profits

will be awarded once the provisions of subsection (2) of section 12 of the Copyright

Acts, 1970 are satisfied.” – Per Uwais, J.S.C. in Plateau Publishing v. Adophy

Suit No. S.C. 131/85; (1986) 4 N.W.L.R. (Pt. 34) 205 at 224 - 225.

1206. An order of injunction may be granted to restrain a continuing breach

of copyright.

“I do not agree with Mr. Arthur-Worrey that the Copyright Decree 1970 No. 61 does

not give right of authorship to any one. I have already referred to Sections 4 and 11 of

the Decree. Section 4 stipulates for conferment of copyright. Section 11 provides for

what constitute infringement of the copyright and Section 12 states where action

would be instituted when the right of copyright is infringed “Ubi jus ibi remedium”