Friday, 1 May 2020

THE IMPORTANCE OF CERTIFICATE OF REGISTRATION OF COPYRIGHT IN A COPYRIGHT INFRINGEMENT SUIT: COMPARISON BETWEEN NIGERIA AND UNITED STATES JURISDICTIONS.


THE IMPORTANCE OF CERTIFICATE OF REGISTRATION OF COPYRIGHT IN A COPYRIGHT INFRINGEMENT SUIT:

INTRODUCTION

Copyright as the name implies, simply means the right to copy. It can be defined as the exclusive right and protection given to a creator of a creative work exclusively to protect his work. Copyright helps you prevent others from using your work without your permission. The consent rights conferred to a creator includes: (a)Right to reproduce the work (b) Distribute copies of the work (c)Perform the work publicly (d) Make a derivative work. Thus, a third party cannot exercise any of the above rights in regards a work without the consent of the creator or the copyright holder.  Various countries have enacted their individual Copy right Act to protect creatives within their jurisdiction and also works that were published within their jurisdiction. Under these copyright enactments, the common features include: (i) The definition of what entails copyright infringement (ii) The penalties for this Copyright infringement (iii) The right of the copyright holder to an action in court for enforcement.
However, there has been a lot of uncertainties in regard the importance of a certificate of registration to instituting copyright infringement cases. The common practice in copyright infringement suits in all jurisdictions is the ability of the plaintiff to prove two basic elements, (a) That the work is an original composition of the creator (b) And that it was presented in a tangible form through a medium that is generally known to the society.
INSTITUTION OF COPYRIGHT SUIT IN THE UNITED STATES OF AMERICA
Traditionally, for an aggrieved party to bring an action for copyright infringement in the United States, the basic practice was that he needs to prove certain elements and they include:
  • ·         That the work was copyright-able. To be classified as such, the work has to be an original work and not copied from another composition. This test is subjective and is decided on a case to case basis. Rentmeester v. Nike, Inc, 883 F.3d 1111 (2018).
  • ·         It must be in a tangible form.
  •       The plaintiff must be able to prove striking similarities between his work and that of the defendant. In most cases, the court contracts the service of a musicologists to determine this.
  • ·         Failure to prove this striking similarities means the plaintiff is required to prove substantial similarities. And this element requires proving that the defendant has access to your work. And in this technological era, it is not difficult to prove this again.

IMPORTANCE OF CERTIFICATE OF REGISTRATION IN THE UNITED STATES
Previously, the importance of certificate of registration of copyright was not clearly stated. While some legal scholars states that there is a need to register the copyright with the Copyright office before filing such suit.  Some scholars posed a different opinion, they claim that certificate of registration is not substantial for a copyright holder to bring a suit for infringement. The rationale behind their opinion is that copyright comes with every work provided the two basic ingredients are proven, original composition and tangible form. This opinion was supported by the decision of the Supreme Court in Reed Elsevier, Inc v, Muchnick, 559 U.S. 154 (2010). Where the court held that failure to register a copyright under section 411(a) of the United States Copyright Act does not limit a Federal Court’s jurisdiction over claims of infringement regarding unregistered works. Section 411(a) of the Copyright Act provides that: “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title”. Thus, an aggrieved party can bring an action of copyright without prior registration or certificate of registration.  

Recently, this controversy has been laid to rest by the Supreme Court decision in Fourth Estate Public Benefits Corp. v. Wall-Street.com 17 U.S.C 411(a) 2019, where the court asserted that certificate of registration of copyright is fundamental to all copyright suit and that copyright holders should register their copyright with the U.S Copyright Office before instituting the action, mere application for registration will not suffice. The exceptions to this decision includes: ‘moral right suits’ and ‘foreign works’. In these two cases, a copyright holder of such work can institute the action even though the copyright has not been registered. The court further defined ‘registration’ of copyright as "the effective date of registration, once the registration is actually processed by the Copyright Office and not when the application is filed with the Copyright Office". This means that though an artiste does not need money on copyrighting his work, as creative works enjoy automatic copyright protection, if he plans to sue someone or enforce such copyright, there will be a need to register the work with U.S Copyright office and have a certificate of registration. Note that the originality requirement and the fact that it must be put in a fixed or tangible medium of expression was also considered in this case.


INSTITUTION OF COPYRIGHT SUIT IN NIGERIA
 Just like in other jurisdictions, the works that are subject to copyright protection includes: (a) musical works (b) literary works (c) cinematographic works (d) artistic works (e) broadcasts (f)sound recordings.  However, section 1(2) of the Nigeria Copyright Act states that for an artistic, literary or musical work to be eligible for copyright protection, it must contain two basic elements (a) It must be an original composition (b) It must be in tangible medium from which it can be perceived or reproduced. From the provision, this entails that for other works like cinematography, broadcasts and sound recordings, there is no need to prove whether the work is an original composition or in tangible form. This a provision that needs to be resolved to state clear the actual requirements.


IMPORTANCE OF CERTIFICATE OF REGISTRATION IN NIGERIA
The relevance of certificate of registration in the institution of a suit is not stated nor mentioned. However, the Act makes provision for a presumption that copyright subsists in any work which is an alleged subject of infringement and that the plaintiff is deemed to be the owner of the copyright work (section 35[a, b]).
CONCLUSION
While the legal framework of the United States has made it clear in regards the relevance of a certificate of registration to a copyright infringement suit, hence, putting to death the earlier controversy that existed. Nigeria Copyright Act did not make any reference to certificate of registration as seen in Section 411 of the Copyright Act of the United States nor did it state what role such document plays in a copyright infringement suit. Hence, there are lot of lessons that Nigeria jurisdiction needs to learn from the United States procedural structure when it comes to relevance of certificate of registration in a copyright suit.
In the writers’ opinion, although registering a work in the copyright office isn’t a prerequisite to enjoy copyright protection, the advantages of registering a work are numerous; so it is advised that a person seeking to enforce his rights either now or in the future should take the required steps to get the work copyrighted. This also mean that the Copyright Act of Nigeria should be amended to state categorically the duties, importance and value attached to a certificate of registration especially as it relates to copyright infringement suits.

Article written by:
 UBANI, OBINNA & WUKU, AYEBAFIRIMOTE

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