WILMAP: Nigeria


LEGISLATION

Nigerian Copyright Act, Cap C28, 2004
 
[The Act does not contain provisions specifically dedicated to Internet intermediaries. However, provisions that may be relevant for intermediary liability are listed below. Also, amendments to the law to include intermediary liability provisions are under discussion (see below). 
 
(1) Article 6 provides that copyright infringment can be enforced only through judicial injunctions: "infringement of copyright shall be actionable at the suite of the owner, assignee or an exclusive licensee of the copyright, as the case may be, in the Federal High Court exercising jurisdiction in the place where the infringement occurred; and in any action for such infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available in any corresponding proceedings in respect of infringement of other proprietary rights."
 
(2) According to Article 20, "Any person who-(a) sells or lets hire or for purpose of trade or business, exposes or offers for sale, or hires any infringing copy of any work in which copyright subsists; or (b) distributes for the purposes of trade or business any infringing copy of any such work; or (c) has in his possession other than for his private or domestic use, any infringing copy of any such work, shall, unless he proves to the satisfaction of the court that he did not know and had no reason to believe that any such copy was not an infringing copy of any such work, be guilty of an offence under this Act and shall be liable on conviction to a fine of an amount not exceeding N 1,000 for every copy dealt with in contravention of this section or to a term of imprisonment not exceeding two years or in the case of an individual to both such fine and imprisonment."
 
(4) According to Article 21, the Copyright Commission shall have the power to enact regulations or other anti-piracy measures. This power may expand the jurisdiction of the Commission to intermediaries.
 
(3) Article 22(1) provides for the liability of firms or other associations of persons: "Where an offence under this Act has been 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 shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. Provided that nothing contained in this subsection shall 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.]
 
 
[Repealing a previous Act of 1992, which introduced the Nigerian Communications Commission (NCC). The Act governs the operations of the telecommunications regualtor and provides the NCC with competence on oversighting the operations of Internet Service Providers. If Nigeria will implement intermediary liability legislation, the NCC will contend to the Nigerian Copyright Commission the role of regulatory entity in the field.]

BILLS AND PENDING PROPOSALS

Copyright Amendment Bill, An Act to Amend the Copyright Act Cap. C28 Lpn 2004 for the Purposes of Making Provisions for Technological Measures in Protecting Copyright and for Other Related Matters, SB.03, 2011
 
[The Copyright Amendment Bill seeks to amend the Copyright Act of 2004 and focuses primarily on the role of new technologies in the infringement of copyright, with provisions on Internet Service Providers’ (ISPs) liability, including ISPs exemptions for storing infringing material, for caching, a notice and take down regime and a termination for repeated infringers regime. Apparently, the Bill does not include a mere conduit exemption.
 
(1) Section 3 provides that ISPs must have a termination policy for their Internet service subscribers that repeatedly infringe copyright. In particular, the Bill states that: (i) "An Internet Service Provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet Service Provider of a repeat infringer"; (ii) "This provision applies if a person infringes the copyright in a work [ . . . ] without the consent of the Copyright owner." The Bill does not specify how many times an infringer should violate copyright law to be tagged as a repeated infringer nor provides a right of appeal for people whose access rights are terminated.
 
(2) Section 4 provides for a hosting/storing exemption for ISPs. (i) ISPs are exempted from liability for copyright infringment if they store infringing materials uploaded by a user, unless (a) they know or have reasons to believe that the material infringed copyright in the work, and (b) do not promptly prevent access to the infringing materials as soon as becoming aware of them. (ii) Knowledge of infringment can be proved in court by all relevant means, including whether the Internet Service Provider has received a notice of infringement. (iii) ISPs must promptly give notice to the user that the material has been deleted or access to it prevented.
 
(3) Section 6 provides for a caching exemption for ISPs. As long as ISPs do not modify the material that they store temporarily for the purpose of allowing faster access by users, they are not liable, unless certain conditions apply (6(2)(a)-(c).]
 
Electronic Transaction Bill, An Act to Facilitate Electronic Transactions in Nigeria; and for Related Matters, HB.03, 2011
 
[The Electronic Transaction Bill does specifically focus on internet intermediaries but includes provisions imposing obligations on intermediaries. 
 
(1) Section 16 provides that an accredited certification authority is liable for the certificates it issues especially electronically and therefore responsible for any breach of its obligations: "An accredited certification authority shall be liable for any breach of its obligations and shall pay fines as may be specified in the specification administration guidelines.
 
(2) Intermediaries may be liable if they do not comply with data protection obligations included in the bill. The "Data Holder" is responsible for any damages caused as a result of contravention of any of the requirements in the Act: "An individual who suffers damage by reason of any contravention by a data holder of any of the requirements of this Act is entitled to compensation from the data holder for that damage." (Section 21, par. 3). Additionally, the ‘Data Holder’ must implement measures for the security of the data in its possession: "A data holder must implement appropriate technical and organizational measures and exercise reasonable care to protect personal data against accidental or unlawful destruction or accidental loss and against unauthorized alteration, processing, disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing." (Section 23, par. 1).]

DECISIONS

[There are currently no known decisions on the issue of intermediary liability.]

OTHER RESOURCES

Alex Comninos, The Liability of Internet Intermediaries in Nigeria, Kenya, South Africa and Uganda: An Uncertain Terrain (Association for Progressive Communications, Intermediary Liability In Africa Research Paper No. 3, October 2012)
Gbenga Sesan, Intermediary Liability in Nigeria (Associarion for Progressive Communications, Intermediary Liability In Africa Research Paper No. 3, October 2012)
Nicolo Zingales, Internet intermediary liability: Identifying best practices for Africa (Association for Progressive Communications, November 2013)

CONTRIBUTORS

Abikoye Olufemi, Gbenga Sesan and Oshone Anavhe
Paradigm Initiative Nigeria
Email: info at pinigeria.org and femi.abikoye at pinigeria.org

FEEDBACK

Please use this form to provide your feedback or suggest any amendments or updates to this page.