Copyright Penalties and remedies: - Primary infringement, i.e. making, importation of or possession of materials for making infringing copies of work: fine not exceeding N1,000 per copy dealt with in contravention and/or term of imprisonment not exceeding five (5) years. - Secondary infringement i.e. sale, offering for sale, distribution, possession for purposes of trade of infringing copy of work: fine of N100 per copy dealt with in contravention and/or term of imprisonment not exceeding two (2) years. - Public distribution by way of rental, hire, lease, loan etc.: fine of N100 for every copy dealt with and/or imprisonment for 6 months. - Offences relating to anti piracy measures: Fine not exceeding N50,000, imprisonment not exceeding five (5) years, or to both such fine and imprisonment. - Making false entries in register: Fine not exceeding N10,000. - Making false entries pursuant to an Anton Piller order Fine of N1,000. - Infringement of performers' rights: in the case of an individual, to a fine not exceeding N10,000; in the case of a body corporate, to a fine of N50,000; in all other cases, to a fine of N100 for each copy dealt with in contravention or to imprisonment for twelve months or to both such fine and imprisonment. A court before which an offence under this section is tried shall order that the recording or any other part thereof be delivered to the performer. - Infringement of expressions of folklore: in the case of an individual fine not exceeding N100,000 or to imprisonment for a term of 12 months or to both such fine and imprisonment; and in the case of a body corporate fine of N500,000. A court before which an offence under this section is tried may order that the infringing or offending article be delivered to the Commission. - Obstruction of a Copyright Inspector in the performance of his duties: fine not exceeding N500 or to imprisonment for a term not exceeding 3 months or to both such fine and imprisonment. - Performance of duties of a collecting society without the approval of the Commission: fine of N1,000 on the first conviction and subsequently a fine of N2,000 or to imprisonment for a term not exceeding six (6) months or to both such fine and imprisonment. where the contravention is by a body corporate, it shall be guilty of an offence and liable on conviction to a fine of N10,000 on the first conviction and N2,000 for each day on which the offence continues. - It need be noted that where an offence under the Act is committed by a body corporate, the body corporate and every person who at the time the offence was committed was in charge of, or was responsible to the body corporate for the conduct of the business of the body corporate shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. But this shall not render any person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. Also, where an offence under the Act is committed by a body corporate and it is proved that the offence was committed with the consent or connivance of, any director, manager, secretary or other officer of the body corporate, such as director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. For this purposes, "body corporate" includes a firm or other association of persons; and "director" in relation to a firm includes a partner in the firm. - Where an article has been seized by a police officer or an authorized officer in connection with a suspected offence a court may on the application of the attorney general of the federation or owner of the copyright in connection with which such offence is suspected to have been committed, order that the article be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit, notwithstanding that no person has been charged with the suspected offence. Industrial property Please see the answer to question 21 above.
[Answer 21: Copyright Criminal procedures and penalties are available for the copyright infringement where a person does any of the following with the requisite mens rea: - making or causing to be made for sale, hire, or for the purposes of trade or business any infringing copy of a work in which copyright subsists; - importing or causing to be imported into Nigeria, a copy of any work which if it had been made in Nigeria would be an infringing copy; - making, causing to be made, or having in one’s possession, any plate, master tape, machine, equipment or contrivance for the purposes of making any infringing copy of any work. These are primary infringements and it is good defense that the accused person did not know and had no reason to believe that the copy concerned was an infringing copy. The Act further provides for secondary infringements i.e. dealing in illegitimate copies. A person is guilty of an offence if he: - sells or lets for hire or for the purposes of trade or business, exposes or offers for sale or hire any infringing copy of any work in which copyright subsists; - distributes for the purposes of trade or business any infringing copy of any such work; - has in his possession other than for his private or domestic use any infringing copy of any such work; or - has in his possession, sells, lets for hire or distribution for the purposes of trade or business or exposes or offers for sale or hire any copy of a work which if it had been made in Nigeria would be an infringing copy. It is a defense for the accused if he can prove to the satisfaction of the court that he did not know, and had no reason to know, that the copy dealt with was an infringing copy of the work concerned. In addition to the above the Act also provides for criminal liability against any person who sells, rents, hires, offers for sale, rent or hire or has in his possession a work that is in contravention of the prescription for the use anti-piracy devices. Similarly it is an offence to deal in machines or other contrivances intended for use in the production of a prescribed anti piracy device. There are also provisions for criminal infringement of performers' rights, unauthorized exploitation of expressions of folklore, failure to keep producers' register or to make false entries therein or to knowingly give false information in execution of the inspection and seizure (Anton Piller) provisions of the Act. Industrial property The Merchandise Marks Act Cap 223 Laws of the Federation of Nigeria 1990, is an Act relating to fraudulent marks on merchandise. This Act deals with criminal offences arising from infringements of intellectual property rights. The High Courts and Magistrate Courts in the states have jurisdiction to adjudicate on these criminal offences arising from infringements of intellectual property rights. Sections 2 and 3 of this Merchandise Marks Cap 223 stated below listed the criminal offences and penalties awarded by the Courts. "Section 2 (1) - In this Act, unless the context otherwise requires "false trade description means a trade description which is false or misleading in a material respect as regards the goods to which it is applied, and includes every alteration of a trade description whether by way of addition, enforcement, or otherwise where that alteration makes the description false or misleading in a material respect; and the fact that a trade description is a trademark, or part of a trademark, shall not prevent such trade description being a false trade description within the meaning of this Act;" Section 3(1) - Criminal offences as to trademarks and trade descriptions. "(a) Every person who forges any trade mark; or (b) Falsely applies to goods any trade mark or any marks so nearly resembling a trade mark as to be calculated to deceive; or (c) Makes, disposes of, or has in his possession any die, block, machine or other instrument for the purpose of forging or of being used for forging, a trade mark; or (d) Applied any false trade description to goods; or (e) Cause any of the things above in this section mentioned to be done, shall subject to the provisions of this Act and unless he proves that he acted without intent to defraud, be guilty of an offence." Selling goods to which false trade marks or description applied (2) Every person who sells or exposes for, or has in his possession for, sale, or any purpose of trade or manufacture any goods or things to which any forged trademark or false trade description is applied, or to which any trade mark or mark so nearly resembling a trademark as to be calculated to deceive is falsely applied, as the case may be shall, unless he proves either; (a) That, having taken all reasonable precautions against committing an offence against, this Act, he had, at the time of the commission of the alleged offence, no reason to suspect the genuineness of the trade mark, or trade description and that on demand made by on behalf of the prosecutor, he give all the information in his power with respect to the persons from whom he obtained such goods or things. (b) That otherwise he had acted innocently; be guilty of an offence against this Act. (3) Every Person who is guilty of an offence against this Act shall be liable: (a) On conviction before a High Court to imprisonment for two years or to a fine, or to both. (b) On summary conviction before a magistrate to imprisonment for six months or to a fine of one hundred Naira. (c) In any case, to forfeit every chattel, articles, instrument or thing by means of or in relation to which the offence has been committed. Forging trademark 4. A person shall be deemed to forge a trademark who either (a) Without the assent of the proprietor of the trade mark, makes that trademark or a mark so nearly resembling that trade mark as to be calculated to deceive; or. (b) Falsified any genuine trade mark, whether by alternation addition, effacement, or otherwise, and any trademark or mark so made or falsified is in this Act referred to as forged trade mark; Provided that, in any prosecution for forging a trademark the burden of proving the assent of the proprietor shall lie on the defendant. Section 11(2) - Forfeiture of infringing goods in the absence of the defendants who could have been convicted if found. (3) Disposal of goods forfeited: the goods may be destroyed or otherwise disposed of in such a manner as the court may direct. Cost of defense or prosecution Section 12 - On any prosecution under this Act, the court may order costs to be paid to the defendant by the prosecutor or to the prosecutor by the defendant, having regard to the information given by and the conduct of the defendant and prosecutor respectively. An offence of infringement of copyright is committed under the provisions of Section 14(1) of the copyright Act Cap 68 Law of the Federation of Nigeria 1990. Under these provisions, a criminal offence is committed under generally the same circumstances as when an act of copyright becomes actionable as a civil matter, provided the article of which complaint is one which the defendant knows or has reason to believe is an infringing copy of a copyright work. It is equally an offence to make or have in his possession an article specifically designed or adapted to making copies of a particular copyright work or to perform, play, or show in public a literary, dramatic or musical work a sound recording or a film.]