This is the concluding part of what has been an interesting discourse on the various civil remedies available to copyright owners and licensees through the courts. We have looked at the knotty issue of jurisdiction, narrowed down to injunctions and damages proper with relevant statutory and judicial authorities.
If you also strongly think that no one must be allowed to reap from another person’s labour; or not be allowed to go away with the equipment and tools used for producing infringing materials; and that the copyright violator’s properties and entitlements in relation to the copyright infringement automatically becomes that of the copyright owner, we are on the same page. Respectively, these civil remedies are known as accounts of profits, delivery up and conversion rights. They will form the basis of our discourse in this concluding post.
Account of Profits
As an equitable remedy, the fundamental principle behind account of profits is that the infringer must not be allowed to reap from another person’s intellectual sweat through his illicit enterprise. One man cannot unjustly enrich himself to the detriment of another. Therefore, an award of account of profits entitles the plaintiff to the profit illegally made by the defendant from the act constituting the infringement.
Account of profits is an option to damages. A plaintiff cannot be granted the remedy of account of profits in addition to damages because a claim for account of profits implies that the infringement has been condoned by the plaintiff.[1]In some cases, account of profits may even be more than the damage suffered by the plaintiff.[2]Where an author, musician, artiste, film maker, broadcaster or performer etc, discovers that his work has been infringed on and can has sufficient evidence to prove that profits has generated from these infringing copies against his own pecuniary interest, he can institute a suit against the alleged infringers and ask the court for the remedy of account of profits rather than the award of damages. This option is particularly advisable where the plaintiff cannot specifically prove the damage done to him and the infringing act is not flagrant.[3]        
However, section 16(3) of the Copyright Act is material in determining whether account of profits is applicable in an action for infringement. The subsection provides:
Where in an action for infringement of copyright, it is proved or admitted that an infringement was committed but that at the time of the infringement, the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement, whether or not any other relief is granted under this section.    


The implication of the above provision is that the court cannot award account of profits if the infringement was committed without knowledge of subsisting copyright in the work or the infringer had no reasonable suspicion that it is a work of copyright. Thus, in Plateau Publishing Co. v. Adophy,[4]the Supreme Court held that the remedy of account of profits was inapplicable to the case as the respondents were not innocent infringers. To award the remedy, the respondents must be proved to lack knowledge of the copyright in subsistence in the infringed work or at least have reasonable suspicion that it was protected by copyright. Therefore, damages were awarded against the infringers since the wrong done was intended.
Delivery Up
Although more closely related to criminal proceedings,[5]delivery up order is also applicable in civil actions. In the exercise of the discretion of the court, the judge may order that all infringing copies of the work, together with all the equipment used in their production be delivered up to the owner of the copyright. Alternatively, the court may choose to have all the infringing copies and the equipment used in their production destroyed.[6]    
According to Odion and Ogba, the delivery up order in an action for infringement is:
 
…a veritable remedy for the copyright owner provided he did his homework well and is able to pinpoint locations where the offending copyright violator stores the infringing materials and copies; or where they are produced. [7]
In American Motion Pictures Export Co. v. Minnesota Nigeria Ltd.,[8]the plaintiff had sought, among other remedies, delivery up of the infringing copies of the article which was the subject-matter of the action. The court ordered delivery up of the items for the purpose of preventing the copyright violator from benefiting from its illegal action.
Conversion Right
Section 18 of the Act of the Copyright Act provides that the party instituting action for copyright infringement is entitled to the recovery of possession in respect of the conversion – the subject-matter of the infringement and all equipment and materials used in producing it. The copyright owner must not be indolent in the exercise of this right of action so as to avoid a situation where the infringing party is not given the advantage of either destroying the infringing copies or moving it along with the equipment and contrivances out of jurisdiction of the court.
The remedy of conversion rights ensures that the copyright owner does not suffer a loss from the injurious act of the violator. Practically, the copyright violator’s properties and entitlements in relation to the copyright infringement automatically becomes that of the copyright owner:
All infringing copies of any work in which copyright subsists, or of any substantial part thereof, and all plates, master tapes, machines, equipment or contrivances used, or intended to be used for the production of such infringing copies, shall be deemed to be the property of the owner, assignee or exclusive licensee, as the case may be, of the copyright, who accordingly may take proceedings for the recovery of the possession thereof or in respect of the conversion thereof.
 
In Onovovwo v. Daily Times of Nigeria Ltd.,[9]The defendant’s news magazine published the plaintiff’s article without any authorisation to do so. In upholding the conversion right of the plaintiff, the court held that though thoughts and words are incapable of conversion, the article itself which contains the thoughts and words is an appropriate object of conversion under the extant Act.        
 
Having examined the enforcement of copyright under civil action for copyright infringement which entitles the owner to the equitable remedies which we have been discussing these few weeks, it must be re-emphasised that these civil proceedings may be instituted simultaneously with criminal proceedings[10]against the alleged infringer.


[1]Hon. Justice Tajudeen Adewale Odunowo, “The Owner and the User of Copyright Works: The Role of the Judiciary in the Enforcement of Copyright”, a paper presented at the special seminar on the administration of copyright cases held at Federal High Court, Lagos on Thursday, May 27, 1993, 57
[2] Rose Records v. Motown Records (1983) FSR 361
[3] Specific proof of damage entitles the plaintiff to special damages, while the flagrancy of the act entitles him to some exemplary or punitive damages which altogether may be a more rewarding compensation for the plaintiff. General damages are often relatively not very adequate.
[4] (1986) 4 NWLR (pt. 44) 265.
[5] S. 20(4)(5) of the Copyright Act
[6] See the last limb of s. 20(4) of the Act which gives the court this discretion.
[7] Odion J. O. and Ogba N. E. O., op cit 51
[8] (1981) FHCLR 64
[9] (unreported) Suit No. FHC/L/CS/98/93
[10] Infra.

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