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right holder may take separate legal actions.
What should you do if your rights are
likely to be or have been violated?
The burden of enforcing copyright and
neighbouring rights falls mainly on the right
owner. It is up to you to identify any violation
of your rights and to decide what measures
should be taken to enforce your rights.
A copyright lawyer or law firm would provide
information on the existing options and help
you to decide if, when, how and what legal
action to take against infringers, and also how
to settle any such dispute through litigation or
otherwise. Make sure that any such decision
meets your overall business strategy and
objectives.
If your copyright is infringed, then you may begin
by sending a letter (called a “cease and desist
letter”) to the alleged infringer informing him/
her of the possible existence of a conflict. It is
advisable to seek the help of a lawyer to write
this letter. In some countries, if someone has
infringed your copyright on the Internet, you
may have the option:
•
To send a special cease and desist letter
to an Internet Service Provider (ISP) requesting
that the infringing content be removed from
the website or that access to it be blocked
(“notice and take-down”); or
•
To notify the ISP, which in turn notifies its
clients of the alleged infringement and thereby
facilitates resolution of the issue (“notice and
notice” approach).
Sometimes surprise is the best tactic. Giving
an infringer notice of a claim may enable him to
hide or destroy evidence. If you consider the
infringement to be willful, and you know the
location of the infringing activity, then you may
wish to go to court without giving any notice
to the infringer and ask for an ex parte order
that allows for a surprise inspection of the
infringer’s premises and the seizure of relevant
evidence.
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The law in Nigeria allows the court to issue
an interim injunction by which the court may
order, pending the final outcome of the court
case, the alleged infringer to stop his infringing
action and to preserve relevant evidence.
Bringing legal proceedings against an infringer is
advisable only if: (i) you can prove that you own
the copyright in the work; (ii) you can prove
infringement of your rights; and (iii) the value
of succeeding in the legal action outweighs the
costs of the proceedings.
Under Nigerian law, infringement or likely
infringment is actionable at the suit of the
owner, assignee or an exclusive licencsee of the
copyright. The court responsible for copyright
matters in Nigeria is the Federal High Court
exercising jusrisdiction in the place where the
infringement occurred.
The remedies that courts may provide to
compensate for an infringement include
damages, injunctions, conversion rights, orders
to account for profits, and orders to deliver up
infringing goods to right holders. The infringer
may also be compelled to reveal the identity
of third parties involved in the production and
distribution of the infringing material and their
channels of distribution. In addition, the court
may order, upon request, that infringing goods
be destroyed without compensation.
The Copyright Act also imposes criminal
liability for making or commercially dealing
with copies of infringing works. The penalties
for infringement may be a fine or even
imprisonment.
In order to prevent the importation of pirated
works, you should contact the national customs
authorities. Nigeria has order enforcement
measures, which allow copyright owners and
licensees to request the detention of suspected
pirated and counterfeit goods.
The owner of a copyright in any published
literary, artistic or musical work or sound
recording, may give notice in writing to the
Department of Customs and Excise that he
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is the owner of the copyright in the work and
that he requests the Department during the
period specified in the notice, to treat copies of
the work (which if it had been made in Nigeria,
would be an infringement copy of the work) as
prohibited goods.
What are your options for settling
copyright infringement without going
to a court?
In many instances, an effective way of dealing
with infringement is through arbitration or
mediation. Arbitration generally has the
advantage of being a less formal, shorter and
cheaper procedure than court proceedings, and
an arbitral award is more easily enforceable
internationally. An advantage of both arbitration
and mediation is that the parties retain control
of the dispute resolution process. As such, it
can help to preserve good business relations
with another enterprise with which your
company may like to continue to collaborate
or enter into a new licensing or cross licensing
arrangement in the future. It is generally good
practice to include mediation and/or arbitration
clauses in licensing agreements. For more
information, see the website of the WIPO
Arbitration and Mediation Center at: arbiter.
wipo.int/center/index.html.