Nigerian Copyright Commission v. Vitalis Ikukuoha

Law Cases and Principles

Nigerian Copyright Commission v. Vitalis Ikukuoha

Case InformationDetails
NIPJD CitationNIPJD/FHC/MG/2006/001
Case NameNigerian Copyright Commission v. Vitalis Ikukuoha
Short TitleN.C.C. v. Vitalis Ikukuoha
CourtFederal High Court of Nigeria, Maiduguri
JudgeHon. Justice S. Yahuza
Date of Judgment14 March 2006
Charge No.FHC/MG/CR/36/03
ComplainantNigerian Copyright Commission
AccusedVitalis Ikukuoha
Area of LawCopyright Law; Criminal Law
Subject MatterCopyright infringement; pirated textbooks; offering infringing copies for sale; distribution of infringing copies
Legislation ConsideredCopyright Act, Cap. 68, LFN 1990, as amended
Relevant ProvisionsSections 18(2)(a) and 18(2)(b)
DecisionAccused convicted on the first count under section 18(2)(a); discharged and acquitted on the second count

Facts and Background

Vitalis Ikukuoha, a bookseller in Maiduguri, was prosecuted by the Nigerian Copyright Commission on two counts concerning infringing copies of textbooks. The prosecution alleged that he offered for sale and distributed 1,451 infringing copies of textbooks in which copyright subsisted in favour of publishers including Longman Plc, Heinemann, Latent and University Press.

Three witnesses testified for the prosecution. The evidence included testimony from a police officer who investigated the case, a copyright inspector involved in the enforcement operation, and a representative of Longman who had dealings with the accused.

The prosecution’s evidence was that pirated textbooks were found at the accused’s place of business. The copyright inspector testified about differences between original and pirated copies, including differences in printing, binding, cover quality and price.

The accused testified in his own defence. He maintained that he was a bookseller rather than a manufacturer and that he purchased books from publishers and other booksellers. He tendered receipts relating to some of his purchases and disputed that the books tendered as Exhibit B were the books taken from him.

Issues for Determination

The defence formulated five issues for determination:

  1. Whether there was evidence that the accused distributed the alleged infringing books.
  2. Whether the prosecution proved that copyright subsisted in respect of Exhibit B.
  3. Whether Exhibit B admitted at trial was actually recovered from the accused.
  4. Whether the absence of an inventory of the materials recovered from the accused was fatal to the prosecution’s case.
  5. Whether there was evidence showing that the accused knew the books were pirated.

Court’s Findings

  • Distribution. The Court distinguished distribution from ordinary retail selling. It did not accept the prosecution’s contention that every act of selling an infringing copy necessarily constituted distribution for purposes of the separate distribution charge. This ultimately resulted in the accused’s acquittal on the second count.
  • Subsistence and registration of copyright. The Court rejected the argument that the prosecution had to prove registration of copyright in the textbooks. It found no provision of the Copyright Act requiring registration before copyright could be claimed and concluded that copyright subsisted in the works tendered as Exhibit B.
  • Recovery of the infringing copies. The Court accepted the prosecution witnesses’ evidence identifying the books tendered as Exhibit B as books recovered from the accused. It also relied on aspects of the accused’s own evidence and statement.
  • Absence of an inventory. The Court held that failure to produce an inventory signed by the accused was not fatal to the prosecution where the books had been counted and identified as infringing copies.
  • Knowledge. The Court rejected the accused’s argument that he could not distinguish original books from pirated copies. Of particular importance was his statement to the police acknowledging that some books he bought from Onitsha were not original. The Court therefore found that he knew he was selling pirated copies.

Decision / Holding

The Federal High Court held that the prosecution had proved its case beyond reasonable doubt in relation to the offence of offering infringing copies for sale for purposes of trade or business. The accused was found guilty and convicted under section 18(2)(a) of the Copyright Act, Cap. 68 LFN 1990, as amended.

The Court, however, held that the second count had not been proved. The accused was therefore discharged and acquitted on the charge under section 18(2)(b) relating to distribution.

Legal Principles

This decision is useful for several propositions under Nigerian copyright law:

  • Copyright protection does not depend on registration before the copyright owner may assert copyright.
  • In a criminal copyright prosecution, the prosecution may establish that infringing copies were recovered from an accused through witness testimony and other evidence even where an inventory signed by the accused was not produced.
  • Knowledge that copies are pirated may be inferred from the accused’s statements and the surrounding evidence.
  • Offering infringing copies for sale and distributing infringing copies constitute distinct statutory allegations and must be independently proved.

Significance

The case is particularly useful in understanding the evidentiary requirements for criminal prosecution of book piracy under Nigeria’s former Copyright Act. It also provides an early Federal High Court interpretation of the distinction between selling or offering infringing copies for sale and distributing infringing copies.

The Court’s treatment of copyright registration is also significant: it rejected the proposition that a copyright owner must first register a work before copyright can subsist or be enforced.

JUDGMENT

(Delivered by YAHUZA, J)

The accused person in this case was charged and brought to this Honourable Court on two counts on 20/11/2003, for offering for sale for the purposes of trade or business a total of 1451 infringing copies of textbooks in which copyright subsists in favour of various publishing companies such as Longman Plc, Heineman, Latent etc ??? and thereby committed an offence punishable under section 18(2)(a) of the Copyright Act Cap. 68 LFN 1990 as amended.

He was also charged for distributing 1451 infringing copies of textbooks for the purpose of business or trade in which copyright subsists in favour of various publishers such as longman Plc, Heineman, Lantent, University Press etc and thereby committed an offence contrary to and punishable under section 18(2)(b) of the Nigerian Copyright Act Cap. 68 LFN 1990 as amended.

In the course of trial, in this case three witnesses testified for the prosecution while several exhibits were tendered and admitted. However the defence also presented one witness being the accused person himself and tendered some exhibits and close his defence.

PW1 was one police office with Force No. 92989 Benti Sati. He said he is attached with State C.I.D. Maiduguri.

He told the Court that he knew the accused person and he came to know him in connection with sales of pirated books. He said that after the arrest led by one Samuel Musa Shalldaka, a regional officer of the copyright commission in charge of this Zone, he said he was detailed to investigate the case.

PW1 said that in the course of conducting the investigation, he administered caution statement in writing in English language and the accused said he understood and he signed.

PW1 said that the accused volunteered to give his statement which PW1 recorded in English language. After completion of the statement, he read the statement to the accused and the accused understood it before he signed. He said he too signed.

If the statement is shown to him, he could recognize it by his handwriting and his signature. The statement of the accused to the police was received as Exhibit A.

PW2 was one Samuel Musa Shalldaka. He said he is a copyright Inspector in charge of North East with his head office at Yola in Adamawa State. He said he oversees six states and Borno State is one of them.

He said his duties as the copyright Inspector include administration and enforcing copyright law against violators of the copyright law. He also works hand-in-hand with copyright owners.

He said he came to know the accused person in the dock when they visited his shed selling pirated textbooks. He said prior to that time some copyright owners like Longman Plc, Evans, Macmillan, Heineman etc had complained to the Commission about the activities of pirates in Maiduguri area.

He said he was in company of some policemen from Borno State Police Command.

The publishers or their representatives identified the pirates in their places of business and we arrested them. At the time they met the accused in his shed, they met him displaying and selling pirated books.

PW2 said that at first they asked the accused why he was selling pirated books. The accused replied them that he was not aware. And that he had no pirated book in his store. PW2 then showed the accused an example of a pirated book. Thereafter they packed all the pirated books.

PW2 said that based on his experience with the publishers, and the training he got from the copyright commission he can be able to identify original from the pirated copy. The sum total of 1450 copies said to have been pirated copies of difference (sic) publishers are received in evidence as exhibit B.

PW2 described the original copy as distinguished from a pirated copy and the witness said that the original cover has the inner cover white and shinny. The original has a clear print and has no mutilated ink. In some of the drawings and lines in the original works are coloured while the pirated is usually black and white.

The binding is usually far better than the pirated one and usually well stempled(sic), while the pirated is binded by gum.

Six copies of the original works are received as exhibit C.

The accused person usually sells pirated at lower price while original works cost more.

One way to know that these books are pirated according to PW2 is that the accused persons usually hide the pirated copies. Sometimes they display few pirated copies but hide most of them. They also refuse to disclose their source of supply of pirated books.

On cross-examination, PW2 told the Court that at the time of arrest he was guided to the shops of the accused persons by the representative of Longman who also act as representative of the Nigerian Publishers Association. He said further that at the time they confiscated the books they carted away the pirated as well as the original copies.

PW3 was one Hassan Salisu Bala. He said he lives at Bulumkutu Abuja in Maiduguri. He said he is an agent of Longman covering Borno and Yobe States.

He said that his primary function is to sell the books published by his Company to its customers such as Schools and Bookshops. He said that it is also his duty to report day-to-day developments in the markets to the management of his Company.

PW3 said that they have working relationship with the Nigerian Copyright Commission. He said that as publishers sometimes their books are pirated. In such situation, we report to Copyright Commission, PW3 said that the accused person was his customer. Accused used to sell books. But he is no longer his customer. PW3 said he started business with the accused in 2001. And terminated in 2002, the accused stopped buying books from him but he continued to visit the shed of the accused to see how he faired in the business.

He said that his Company wrote letter of complaint to the copyright commission.

PW3 said further that when he noticed that the accused was no longer buying books from him but selling pirated books he tried to advice him to stop selling pirated books but the accused refused. The accused continued to patronize pirated books because he was making more money than selling original books.

PW3 said that it is untrue to say that the accused did not know pirated books. He usually displays pirated book as well as original, when a customer comes to their shop the accused usually shows him the original and its price and the pirated which is lower in price.

The difference between pirated and original ones are many, said PW3 but the prominent ones are (1) the cover design is not as sharp as that of the original (2) the printing quality is not as good as the original. Pirated ones are sometimes not readable the quality of the paper is sometimes of lower grade.

On cross-examination PW3 said that he cannot recollect if the accused and his colleagues bought books from him a week earlier before the raid. PW3 said further that he collected some payments from the accused on Saturday preceeding the arrest. He said that whenever he ran out of stock he used to phone his regional office in Jos and consignment is usually received the following day. And liberty bookshop Maiduguri is his contact point.

PW3 said that he represents all the publishers through the Nigerian Association of Publishers. He said at the time of arrest he was with members of the Copyright Commission and some policemen.

Upon a ruling of having case to answer, the accused person presented his defence by testifying as DW1.

DW1 gave his name as Vitalis Ikukuoha. He said he lived in Gwange ward, Maiduguri. He said he is a trader dealing in books. He said he sells in an open air at post office area Maiduguri under a shed of tree. He said his academic background is primary two.

DW1 said that he does not manufacture books but sells books. He said he receives supplies from the publishing companies such as Heineman, University Press, Longman and Lantang (sic) etc. He also buys from Edidas bookshop here in Maiduguri. He said he also buys from Maghul publishers.

He said whenever he buys books from Heineman, he used to receive receipt. He said his business is HONESTY Bookshop.

Six receipts from Heineman publishers were received as exhibit D1-D6.

However, four receipts alleged to have been received from University Press Publishers were rejected.

However, receipts from Maghul publishers four in number were admitted in evidence and marked exhibit E1-E4. Likewise, receipt from Adidas Bookshop four in number were received as Exhibit F1 to F4.

DW1 said that he knows PW3 as he is his customer, he used to supply accused with books (Longman books). However, he was not used to issuing him with receipts. He used to say that since he was in mobile sales he could not issue receipts. DW1 said that all the books in his shed he used to buy from these publishers, which includes PW3. He said he even bought some from him on Saturday preceeding the operation.

DW1 said on that day at about 11:00a.m., he was in his shed when he saw some people coming to him along with some policemen. They exchanged greetings with the accused and one of them asked him to pack his books. He asked them the reason and one of them replied him that they were from Longman. He then packed all his books and carried the books himself to C.I.D. Police Station on reaching there the police asked him why he was there. Then PW3 told the police that we were selling pirated books. He then told them that he did not know anything about pirated books. He was then locked in the cell.

DW1 said that these books in exhibit B are not his books as he has observed that none of them carry his initial which he used to write with biro on each copy. DW1 said that the police carted away all his books which was(sic) more than 1751. Police did not take inventory of what they took away from him. He said he does not know the number of books carried away but they took away 18 bags of Ghana must go.

On cross-examination, DW1 said that he had been in the business of selling and buying books for about three years ago.

DW1 said that E1-E4 and F1 to F4 are books purchased from retailers not publishers and he does not know if these retailers sell pirated books.

DW1 further stated that he did not tell the police in Exhibit A that some of the books he sells he used to buy them from Onitsha and they are not original. DW1 then admitted that he did not tell the police that the books he sells carried his initial.

These were the evidence adduced from either side in this case.

Written addresses were ordered in lieu of oral addresses by Counsel.

Learned Counsel for the accused formulated five points or issues for determination of the Court namely:

  1. Whether there is evidence that the accused person distributed the alleged infringing books.
  2. Whether the prosecution proved that there was subsisting copyright in respect of Exhibit B.
  3. Whether exhibit B admitted at the trial was actually recovered from the accused person.
  4. Whether lack of inventory of what was recovered from the accused was not fatal to the prosecution’s case.
  5. Whether there is, anything evidenced at the trial to show how that the accused did know that those books were pirated assuming but not conceding that the books were pirated.

Issue Number One

The word distribute has not been defined by the Act. It is submitted on behalf of the accused that the prosecution has not adduced evidence, which showed that the accused distributed or sold any of the materials displayed.

However, learned Counsel for the prosecution maintained that every act of selling infringing copies is an aspect of distributing for the purpose of business or trade. If this is the situation then section 18(2) (a) and 18(2) (b) are identical. Oxford Advanced Learner’s Dictionary 6th Edition defined the word distribute as meaning to give things to a large number of people, to share something between a number of people. It means to supply or deal. This connotes handling a large number as distinguished from retail. The accused was not caught distributing or selling these infringing materials. He should therefore deserve to be discharged and acquitted.

Issue Number Two

It is submitted that there was no proof that there was a subsisting copyright duly registered in respect of Exhibit B, in whose favour it was registered and when it was registered. I have closely perused the content of the law i.e. copyright law and I have not seen any section, which requires registration of any right material before the owner claims copyright. Therefore registration of material is not a criterion before the owner claims right once the owner is known and has put the following statement as a caveat thus: –

“All right reserved. No part of this book (publication) may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical photocopying, recording or otherwise without the prior permission of the copyright owner.”

Therefore, copyright subsists in these works now referred to as exhibit B.

Issue Number Three and Four

Whether exhibit B was actually recovered from the accused having regard to the fact that there was no inventory taken and accused denied exhibit B has not been recovered from him as he claimed he used to write his initial on each copy he sells. PW2 identified these books in Court as books recovered from the accused person. This statement is further corroborated by the evidence of PW1 and PW3. Even the accused himself admitted in both his statement to the police and in his evidence in chief that he was caught with some books, which he called Onitsha copies. Accused did not state in his statement that he used to write initial of “Honesty” on each copy he sells. It is equally not the requirement of the law that an inventory must be signed by the accused once the number of books are counted and are identified to be infringing copies which is the case in this case, then the accused cannot be heard to deny their existence. Therefore, it is not fatal to the prosecution’s case that an inventory duly signed by the accused is not produced in Court.

Issue Number Five

It is submitted that the accused used to carry on his business in an open place at Post Office area and not at Bulumkutu Abuja. Accused testified and tendered exhibits showing that he used to purchase his books that were carted away from bookshops and publishers. And his education is limited to primary six or two. Therefore, he cannot distinguish between a pirated copy and original.

Even this defence cannot hold water. The accused wrote his statement at the police station wherein he admitted that some of his books were Onitsha copies. “And it is a fact that some of the books I buy from Onitsha are not original.”

Accused did not deny that he did not make a statement to the police or that the statement was not voluntary. I therefore accept the fact that the accused knew that he was selling pirated copies of materials which copyright exists in favour of Longman Plc and other publishers.

All in all I can say is that the prosecution has proved it’s case beyond reasonable doubt against the accused and is therefore found guilty and convicted under section 18(2)(a) of the Copyright Act Cap. 68 LFN 1990 as amended.

However, the accused is hereby discharged and acquitted in respect of the 2nd count because the offence was not proved.

Related Cases