In our opening discourse, copyright was stated as been mainly a private right which can be enforced by copyright owners/licensees in the courts of law. For this purpose, the issue of jurisdiction arose, where it was made clear that Copyright Act gives exclusive jurisdiction to the Federal High Court for the trial of offences or disputes under the Nigerian Copyrights Act. We had examined closely the provisions of section 251(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), section 46 in contrast with section 16(1) of the Nigerian Copyright Act, with some relevant decided cases. That the various divisions of the Federal High Court across the Federation are only established for administrative convenience, and not separate from one another, was one of our main points. You may read this up here.
As promised last week, let’s closely examine the civil actions and remedies available for the judicial enforcement of copyright in Nigeria.
(ii) Civil Action and Remedies for the Enforcement of Copyright                     
Civil action is one of the options available to the copyright owner in pursuing the action for infringement of his copyright.[1]There are wide reparatory remedies available where a civil proceeding is instituted.[2]Remedies in civil action for the enforcement of copyright remain the widest and most attractive option. Civil actions are remedial, thus it is aimed at making right a wrong that has been done to another. To this end, it particularly provides the copyright owner with the opportunity of getting reparatory awards meant to restore him, as practicable as possible, to his original position if the infringement had not occurred. Most claimants employ the civil process for certain reasons.
 
Where the case is proved, it affords the assertion of private rights which attracts reparatory remedies in favour of the claimant in contradistinction to criminal punishments against the offender. Secondly, the standard of proof in civil proceedings is less burdensome to the claimant since it is based on a balance of probabilities, not the criminal standard of proof beyond reasonable doubt. Thus, in Federal Republic of Nigeria (FRN) v. Asika,[3]the court discharged the 1st accused person for failure to prove the charge against him beyond reasonable doubt that he was aware that the books he was marketing at the material time were pirated. Apart from the standard of proof in civil proceedings, it also affords the plaintiff the timely opportunity of arresting the continued infringement of his copyright work through the injunctive orders he might obtain pending the final determination of the suit.[4]The available civil remedies are:
 
(a)  Injunction;
(b)  Damages;
(c)  Account of Profits;
(d)  Delivery Up; and
(e)  Conversion Right
Injunction                                                                                                                  
An author, musician, artist, film maker or broadcaster including a performer whose copyright in a work has been infringed by an unlicensed or unauthorised person can apply to the court for an order of injunction to protect his work.[5]An equitable remedy which is subject to the discretion of the court, injunction is the most important and assailable remedy for copyright infringement. It is a court order requiring a party to litigation to act or refrain from acting in a certain manner. This is why it is futuristic in nature.

In the field of intellectual property, injunctions are often prohibitory since it operates to stop the infringer from continuing the wrongful act.[6]A violation of injunctive order amounts to contempt of court and could result in summary trial of the contempt against the individual or legal person.[7]This could result in criminal sanctions by way of fine or imprisonment for individuals, and fine or sequestration for legal persons.[8]
 
Essentially, an injunction may be interim, interlocutory or perpetual. Pending the final determination of the plaintiff’s action for copyright infringement, an injunction may be granted interim/interlocutory. In Mothercare v. Robson,[9]the court stated all the universal conditions attached to the grant of an injunction thus:                                   
                                           
(i) that the applicant must show that there is a serious question to be tried i.e. that the applicant has a real possibility not a probability of success at trial;
(i)      that the applicant must show that the balance of convenience is on his side i.e. that more justice will result in granting the application than in refusing;
(ii)      that the applicant must show that the mere ward of damages will be inadequate to compensate the claimant; and
(iii)     that the claimant undertake to pay damages to the defendant where his application is unfounded or his claim is vexatious and frivolous.
 
Therefore, in the case of Harman Pictures, NV v. Osborne,[10]the court ordered for an interlocutory injunction so as to maintain the status quo and protect the plaintiff’s property pending the final determination of the action.
 
Interim injunction is granted ex parte after which the defendant must be put on notice for the hearing of the application seeking to interim order to be made interlocutory pending the determination of the case. When at the end of the civil proceedings the alleged infringement is proved, the order may then be made perpetual.
 
This is how far we can go this week. Join me next week when we will be considering one of the most rewarding civil remedies upon a successful institution of action against copyright infringements – damages!


[1] S. 24 of the Copyright Act
[2] These remedies include injunction, damages, account of profits, delivery up and conversion right. See S. 16(1),(3)  and s. 18.
[3] (unreported) FHC/A/2CR/92
[4]Such injunctive orders include the search order for inspection (Anton Piller order) originated in the locus     classicus Anton Piller KG v. Manufacturing Processes (1976) 1 All ER 779; freezing order for the retention of     assets (Marevainjunction) applied in Mareva Compania Naviera v. International Bulk Carriers (1980) 1 ALL ER    213; disclosure, interrogatives and inspection as applied in Printers & Finishers v. Holloway (1964) 3 All ER 54;     and discovery of names (Norwich Pharmacal action) which originated from Norwich Pharmacal v. Commissioner of Customs & Excise (1974) RPC 101 HL. Each of these injunctive orders is sought for the purpose of proof of infringement. The application for any of these procedural orders would be made in camera as such ex parte application enables the copyright owner spring a surprise on the infringer to secure to prove his case successfully.
[5] The application may also be made by the collecting society protecting the interest of the copyright owner of the   infringed work, or their assignee or exclusive licensee.
[6]An injunction may be granted quiatiment against a proposed course of action that will infringe the plaintiff’s    rights, if there is a strong probability that the injury will be committed. See Halsbury’s Laws of England (4thed.)    Vol. 24, S. 932
[7] Attorney-General v. Newspaper Publishing (1987) 3 ALL ER 276 CA.
[8] Director-General of Fair Trading v. Smith’s Concrete (1991) 4 All ER 150 CA
[9] (1979) FSR 466; cf Cream Holdings v. Banerjee (2005) 1 AC 253 HL
[10] (1967) 2 All ER 324.

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