FROM 'SUFFICIENT' TO 'SOME': THE IMPACT OF THE COPYRIGHT ACT 2022 ON THE NIGERIAN | Clementina E. Ukiri, Esq.

Entertainment Industry

The Nigerian entertainment industry, a dynamic and globally recognised force, has long operated within a legal framework that often struggled to keep pace with its rapid evolution. With the enactment of the Copyright Act 2022, a significant yet subtle change has been introduced that has the potential to redefine the landscape of intellectual property in Nigeria. This pivotal shift is the replacement of the term "sufficient effort" with "some effort" as the standard for a work to be deemed original and, consequently, eligible for copyright protection.

This seemingly minor linguistic change has profound implications, particularly for creators engaged in the creation of remixes, adaptations, and works that build upon existing ideas. This article conducts a comparative analysis of the old and new originality standards, examines the practical effects of this change on the creative community, and hypothesises on the potential for a new era of copyright claims and litigation.

A Comparative Analysis: The Old and New Standard

Under the repealed Copyright Act of 2004, a literary, musical, or artistic work was only eligible for copyright if "sufficient effort has been expended on making the work to give it an original character" [1]. This standard placed a burden on the creator to demonstrate a substantial level of creative investment. The courts were tasked with the subjective and often difficult job of determining what constituted "sufficient effort" in each case. This created a high bar for works that were not entirely new, such as remixes, covers, or works heavily influenced by a previous piece.

The new Copyright Act 2022, however, lowers this bar. Section 2(2) states that a work is eligible for copyright if "some effort has been expended on making the work, to give it an original character" [2]. The keyword here is "some." This change marks a deliberate departure from the previous, more stringent requirement. It suggests that even a minimal creative effort, one that demonstrates a unique contribution, no matter how small, may now be enough to secure copyright protection [3].

The Practical Effects on Nigerian Creators

This change has a direct and immediate impact on various segments of the Nigerian entertainment industry:

1. Musicians: The music industry thrives on remixes, samples, and covers. Previously, a musician creating a mash-up or a remix had to prove "sufficient effort" to secure a new copyright for their version. Now, the "some effort" standard could mean that even minor alterations, new arrangements, or the addition of a unique beat could be enough to grant a new copyright. This could encourage a wave of innovative, derivative works but also blur the lines between inspiration and infringement.

2. Filmmakers and Digital Artists: In the visual arts, creators often draw inspiration from existing media. A digital artist creating a new work based on a famous meme or a filmmaker adapting a popular folklore story with a modern twist would find the "some effort" standard more accommodating. This new provision seems to acknowledge the creative process of re-imagination and adaptation, which is a cornerstone of modern art.

3. Content Creators and Online Influencers: The new Act is particularly relevant for the digital space, where content is constantly being remixed, repurposed, and shared. A TikTok user who adds a unique voiceover to a trending video or a YouTuber who creates a reaction video with original commentary could now more easily argue for copyright protection on their derivative work. This aligns with the Act's broader aim of addressing the challenges of copyright in the digital age [4].

Interpreting "Some Effort": A New Frontier for Courts

The vagueness of "some effort" is both its greatest strength and its most significant challenge. With no specific definition provided in the Act, the interpretation of this term will fall to the Nigerian courts. Legal analysts and practitioners are already hypothesising on how this will play out [5]:

1. Lowered Threshold for Protection: The most likely outcome is that courts will adopt a more liberal interpretation of originality. They may shift the focus from the quantity of effort to the quality of the unique contribution, however small. For a court, the question may no longer be "was enough effort made?" but rather, "was any creative effort discernible at all?" [3].

2. Increased Litigation and Disputes: A lower bar for copyright could lead to a surge in copyright claims. As more works become eligible for protection, the potential for disputes over ownership and infringement will rise. Creators who previously operated in a grey area may now find themselves on both sides of a lawsuit, either as a plaintiff or a defendant.

3. The "Floodgates" Argument: There is a real concern that a "floodgate" of new copyright claims could open. This might particularly affect industries like music and social media, where derivative works are the norm. The lower bar may be seen as a welcome development by some, but it could also create a climate of legal uncertainty and constant vigilance for those who build on or are inspired by existing content.

Conclusion: A Bold Step with Unpredictable Consequences

The change from "sufficient effort" to "some effort" in the Nigerian Copyright Act 2022 is a bold and progressive move that acknowledges the realities of the modern creative process [6]. By lowering the originality bar, the Act seeks to empower a wider range of creators and protect a greater volume of creative work.

However, this change is not without its risks. The ambiguity of the new standard places a new burden on the Nigerian legal system to interpret its meaning and scope. As the courts begin to handle cases under this new provision, their decisions will shape the future of originality in Nigeria's entertainment industry. While the Act promises to be a boon for creators, it is also a catalyst for a new and complex era of copyright litigation, where the lines between a tribute and an infringement may be thinner than ever before.

References

[1] Federal Republic of Nigeria. Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004, Section 1(2)(a).

[2] Federal Republic of Nigeria. Copyright Act 2022, Act No. 8, Section 2(2)(a).

[3] Lynda Alphaeus, "The Nigerian Copyright Act 2022: An Overview," NIALS Journal of Intellectual Property, 2024. https://journal.nials.edu.ng/index.php/njip/article/download/45/44/81.

[4] Olaniwun Ajayi LP, "A Review of the Nigerian Copyright Act 2022," S.P.A. Ajibade & Co., 2023. https://spaajibade.com/a-review-of-the-nigerian-copyright-act-2022/.

[5] G. Elias, "A Review of the Nigerian Copyright Act, 2022," G. Elias & Co., 2023. https://www.gelias.com/images/Newsletter/A_Review_of_the_Nigerian_Copyright_Act_2022.pdf.

[6] Tope Adebayo LP, "A Review of the Copyright Act of 2022," Tope Adebayo LP, 2024. https://topeadebayolp.com/wp-content/uploads/2024/01/89_A-REVIEW-OF-THE-COPYRIGHT-ACT-OF-2022.pdf.