Are foreign copyright works protected in Nigeria?

Abstract

Despite Nigeria's treaty obligations, Nigerian courts have, in the last quarter of a century, consistently but erroneously held that the Nigerian copyright statute does not protect copyright works of foreign persons. The purport of the decisions is that foreign persons cannot sue to protect their copyright in Nigeria. Given that the decisions of three trial courts and a Court of Appeal decision were never appealed to the Supreme Court, they arguably remain good precedent. The decisions suggest that foreign direct investors who need copyright protection are exposed in Nigeria. Relying on two of these cases, a leading intellectual property law text echoed this erroneous position. This article demonstrates that the decisions were reached in ignorance of applicable statute. As such, the decisions should not be followed by trial courts irrespective of the rule of binding judicial precedent. The article outlines various mechanisms within the copyright statute that extend the protection of the Nigerian copyright statute to foreign works. This article goes further than previous works. Unlike earlier works, this article suggests the path trial courts should tread, despite the rule of precedent, in distinguishing this line of cases to hold that foreign corporations incorporated in many treaty countries and foreign works emanating from many treaty countries are protected in Nigeria. Unlike earlier works, this article demonstrates that lower courts may refer this issue to higher courts for interpretation and guidance under the case stated procedure. Whilst other works made passing references to the Copyright (Reciprocal Extension) Order 1972 (the 1972 Order), that arguably extends copyright to foreign works under the Copyright Act 1970, none cited judicial authority that held that the 1972 Order made under the repealed Copyright Act 1970 is still valid under the current Copyright Act. None referred to the Interpretation Act that supports this judicial authority. Unlike previous work, this article reveals that if the Microsoft case that is the most significant of these cases is appealed to the Nigerian Supreme Court, the court will extend the time within which the Microsoft Corporation can appeal and reverse Microsoft and the line of cases identified in this article.