Copyright Infringement in Nigeria, vis-a-vis its Proof and Consequential Effect: The Legal Perspective By Gobir Habeeb Bolaji

The Nigeria copyright Act as we have it today, is one of the most efficient and significant mechanism, readily available to curb and limit the influx of copyright infringement that are to a large extent prevalent and rampant in our cotemporary world of today. The copyright Act, by it very nature is enacted primarily to serve as a shield in protecting the right of Authors of different works against all sort of plagiarism. However, be that as it may, the copyright Act, notwithstanding it importance in our legal system suffers some major set back and at the same time, not free from the bane of imperfection and critics.

This is evident on the fact that, a perusal of some of the sections contained in the Act will show that, they did not, to some extent conform with the dictate of justice. In other word, they are far behind what is ordinarily obtainable in our conventional laws and system. However, this writer is left unconcerned with all the lacunas that are visible in the Act, but rather, the center argument and point of importance of this writeup is centered basically on the provision of section 35 of the copyright act which from it wordings, placed the burden of proof of innocence on the offender.

It’s quite important, if not necessarily to make recap of what is obtainable in the Nigeria constitution in relation to section 35 of the Copyright act. The constitution of the federal republic of Nigeria(1999) provides for presumption of innocent of the accused person until proved otherwise. This presumption is well enshrined and circumscribed in the provision of section 36(5) of CFRN 1999 which provides that:

” Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”

From the wordings of the above section, it’s quite understandable that the constitution place the burden of proof on the prosecutor to prove the guilt of the accused person. This is premise on the assertion that he who assert must prove.

Having examined the stance of the Nigerian constitution, it will be of Paramount importance to peruse the provision of section 35 of the copyright act in relation to burden of proof. The section provides thus:

” In any action for an infringement of copyright in a work, the following shall be presumed, in the absence of any evidence to the contrary”

(a) the copyright subsists in a work which is the subject matter of an alleged infringement;

(b) that the plaintiff is the owner of copyright in the work;

(c) that the name appearing on a work purported to be the name of the author, is the name of such author;

(d) that the name appearing on a work purported to be that of a publisher or producer of a work is the name of such publisher or producer;

(e) where the author is dead, that the work is an original work;

(f) that it was published or produced at the place and on the date appearing on the work”

From the wordings of the above section, it’s crystal clear that the section presume the plaintiff to be the owner of copyright of any work in dispute in the absent of any contrary evidence. The implication of the above provision lies solely not only the fact that, it place the burden of proof on the defendant to prove his/her innocence, but also, it shows and depict a direct inconsistency with the provision of the constitution which presume the accused person to be innocent.

Flowing from the above, it’s arguable that the provision of section 35 of the copyright act is nothing but a direct contradiction with the position of the constitution. Ordinarily, in an action for copyright infringement, the substantive suit for the court to decide lies solely in determining the party who has or possess a better title to the subject matter in dispute. By the virtue of this, the court are expected to adopts the dictate of equity and fairness as a determinant in resolving the issue. I’m quite sure that, if the plaintiff who is bringing an action against the defendant is presumed by law to be the owner of the subject matter in question, then the dictate of fairness is totally neglected. The plaintiff who claims the ownership of a particular work should be saddled with the responsibility of proving same for his/her claim to stand.

When you institute an action against another person for copyright infringement, definitely, you must be in possession of either documentary or real evidence to prove the guilt of the defendant. Placing the burden of proof on the defendant who is by law, considered to be innocent under the constitution will not only be tainted to be against the spirit of equity and fairness, but also, a direct inconsistent with the constitution.

At this juncture, it’s important to state emphatically that, the constitution of Nigeria is considered to be the highest law in Nigeria and at the same time serve as a condition precedent to the validity of any other law enacted in Nigeria. Any enactment that goes contrary with the constitution are meant to be disposed off with. It’s also important to note here that our laws of today were to a large extent entrenched on pages of code, and as such, we are bound to face a lot of challenges both in enactment and application of our laws.

The Nigerian Copyright Act has made some provisions that call for the attention of legal practitioners and our courts. This type of legislation should attract the attention of practitioners for the simple reason that it is unconventional in criminal prosecution to place the burden of proof of innocence on the accused.

Gobir Habeeb Bolaji is a 300level law students in usmanu danfodiyo university, sokoto and also a campus journalist writing for pen press udus



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