Nigerian IP: 'Sir Jude
Nnam v Five Star Music Ltd & Ors (aka) the E-money- “Som Too Chukwu”
Copyright Case: Reliance on Civil Procedural CYAs by Nigerian Judges?
Samuel
Samiái Andrews [1]
In the
Federal High Court of Nigeria, in the Lagos Judicial Division on the 30th of
September 2024, Justice K. O. Ogundare gave with due respect an erroneous
judgement, in my opinion in the mostly copyright infringement case before him
between Sir Jude Nnam (Plaintiff) and Five Star Music Ltd and two other defendants (Mr.
Emeka Okonkwo aka E-Money and Mr. Kingsley Chinweike Okonkwo (aka KCEE) (defendants), the
case I will herein refer to as the E-Money-"Som Too Chukwu"
Case (ES case).
Stating the case in brief, the plaintiff sued the defendants for copyright infringement for the unauthorized use of the song "Som Too Chukwu," which he claimed composition rights, ownership and authorship among other claims, and which said song was surreptitiously included in the music album of the KCEE titled "Cultural Praise Vol. 1." by the defendant, KCEE. The Plaintiff also claimed copyright including composition rights/ownership to the songs titled "Otito Diri Chineke' and 'K' Anyi Jee N' Ulo Chukwu," which were surreptitiously included in the music album titled "Cultural Praise Vol. 4. by the defendant, KCEE.
I took
time to read the more than 96 pages judgement, and I concluded that it is high
time, like yesterday, we in the intellectual property spaces especially the
experts, professionals, academics and policy institutions intervene to save the
Nigerian judiciary by enhancing their capacity and understanding of
intellectual property subjects.
For a
while now, I have been tracking judgements, Orders, Rulings, and Conclusions of
Nigerian Judges with scholarly interest. Most Nigerian judges' conclusions in
these contemporary era (1990-2024) reflects limited knowledge and understanding
of intellectual property laws particularly of the digital era and the evolving
fourth industrial revolution. An enhanced knowledge and understanding capacity for
Nigerian judges is even more fundamental under current Nigerian laws including
the Copyright Act 2004 (Nigeria), and the Copyright Act 2022 (Nigeria) because
of the controlling intersection of digital and traditional
creative-innovative infrastructures.[2] In 2021, a Nigerian judge
ruled that because a plaintiff did not register his copyright in a work, he had
no protection under the Nigerian Copyright law.[3] This example of the
erroneous positions in law and fact by a judge (I have records of several
instances of legal errors) heightens my concerns for the future of the Nigerian
IP practice, management and protection, particularly around copyright creations.[4]
In the E-Money
and ‘Som Too Chukwu’ (ES) copyright dispute that is the primary focus of this
thesis, Justice Ogundare spent more than ninety-eight per cent (98%) of his 96 pages judgement elucidating the pristine and glorious
qualities of Civil Procedural Rules and court traditional norms and practices
to come to a conclusion that is contrary to the Nigerian copyright law under existing
jurisprudences and global best practices, laws and policies of copyright
jurisprudence.[5]
Justice
Ogundare’s judgement was interspersed with arcane civil procedural, technical
legalese and abstracts that failed to answer the core issues: Whether there was
any intellectual property rights (copyright, trademark, trade secret, etc.) as
pleaded by the parties before him in the subject matter in dispute. Who is/was
the owner/author of such IP rights that was/were created. Whether such IP
rights was/were infringed? And by whom? And how?
Positive
IP laws including the Nigerian Copyright Act of 2004 and the current law,
Copyright Act 2022 have laid out the perimeters of how to answer these and
other legal questions/issues. International Treaty regimes, which Nigerian is a
party to are also available to assist the Nigerian courts and judges to arrive
at fair, just and legally appropriate conclusions but something is lacking.
Looking at
existing IP Positive laws (copyright) in Nigeria the fundamental question in
resolving the ES case should have been to focus on whether the song, music,
musical works and sound recording etc. are copyrighted works under the Nigerian
work and in particular the song “Som Too Chukwu” whether it conforms with the
fundamental requirements of copyright originality and copyright creativity.
Thereafter, the discovery and investigation as to who created the work and who
infringed, who copied or used the song unauthorized could have followed. My
reading of the judgement shows that the judge failed to take those steps. The
controlling law on this case is the Nigerian Copyright Laws. The
investigation and analysis of other IP rights if at all they existed in the
dispute could come after resolving the copyright question.
[1]©2024.
Dr. S. Samiái Andrews, SJD., is a
United States Ambassador’s Distinguished Scholar and Professor of Intellectual
Property Law. A former Professor of Intellectual Property Law at the University
of Gondar, School of Law, Ethiopia. He was formerly Teaching Assistant and a Lecturer
in the SJD Doctoral Degree Program of Suffolk University Law School, Boston
Massachusetts USA. He is currently a faculty at The College of Law, Al Yamamah
University-Al Khobar, Eastern Province of The Kingdom of Saudi Arabia.
[2] Olufunmilayo B. Arewa, Disrupting
Africa-Technology, Law, and Development (Cambridge
University
Press 2021)
[3] Paul Allen Oche v Nigerian Breweries Plc
and three others, FHC/ABJ/CS/145/2019 (Nigeria)
(Holding
on 25 June 2021 in Abuja that a copyright owner under Nigerian law must
register her
copyright
to acquire ownership); perhaps this court taking the cue from the government’s
institution
like
the Nigerian Copyright Commission erroneously following the trend of
requirement for
copyright
formality in registration.
[4] TV Xtra Production Limited and
another v National University Commission and Zain Nigeria FHC/ABJ/CS/680/2008, 6 May 2020; Raconteur
Productions Limited v Dioni Vision Entertainment Limited and others
FHC/L/CS/401/2017 (delivered 2 May 2019) at p 17-18 (citing erroneously
Feist Publications Inc v Rural Telephone Service to support the Nigerian
copyright originality doctrine, with the Feist doctrine relying on a modicum of
originality in a creation, while Nigerian copyright law still relies on the
‘sweat-of-the-brow’ doctrine of originality); Distinct Universal v Bong
Nigeria Limited (1997-2003) 4 LPLR 44; Microsoft Corporation v Frankie
(2012) 3 NWLR [PT.1287] 301 (p 99 of record of appeal) (upholding the lower
court’s decision that Microsoft, not being a Nigerian corporation, could not
seek the court’s protection to enforce its copyright because the court lacked
jurisdiction to hear Microsoft on issues of infringement of its software
programs, which the court acknowledged is an eligible subject matter for
copyright protection under Nigerian law); Raconteur Productions Limited v
Dioni Vision Entertainment Ltd and others FHC/L/CS/401/2017 (holding that
the plaintiff had failed to adduce sufficient and credible evidence to prove
authorship and ownership of the screenplay of the feature film and did not have
any copyright to the film); Violet Johnson, ‘Omoni Oboli Wins “Okafor’s Law”
Movie Ownership Battle’ The Guardian (London, 8 May 2019)
<https://guardian.ng/life/omoni-oboli-wins-okafors-lawmovie-ownership-battle/>
accessed 14 November 2024.
[5] Samuel Samiai Andrews, “Developing
Copyright Curriculum for Nigerian Universities for the
Creative
Space” (2021) GRUR International https://doi.org/10.1093/grurint/ikab157 accessed.
14 November
2024.
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