Jennifer is a digital illustrator who earns a living from selling her unique illustrated designs to companies and individuals.
One day, Jennifer stumbles on an Instagram page run by Tosin that is selling her illustrations in portrait form claiming them to be his work.
Fortunately for Jennifer, all her illustrations have been registered and copyrighted with the Nigerian Copyright Commission.
What steps can she take against Tosin legally and to stop his infringement right away?
REMEDIES FOR COPYRIGHT INFRINGEMENT
Most of the actions available to Jennifer in this case are mostly civil in nature, meaning they mostly do not lead to jail term for the offender but rather more of compensation of damages, court orders etc.
Civil actions that can be taken include damages, injunction, account of profits and delivery up.
Here are what Jennifer’s options look like:
There are civil remedies…
This is the most important civil action that a copyright owner can take. This literally means getting the court to give an order restraining the infringer from ever repeating the offence of violating that copyright.
This immediately limits whatever risks or losses the copyright owner may incur but ongoing or future production of the illegal materials.
Jennifer can also claim damages. This basically means she is entitled to recover damages or monetary loss for the infringement of her copyright which must have taken certain business away from her.
Unlike the rendering of account remedy below, this doesn’t deal with profit made by the offender, just actual monetary loss resulting from the infringement.
INSPECTION AND SEIZURE
The Copyright Act also allows for Jennifer to search and seize any infringing copy or material in Tosin’s possession or anywhere on her property.
To get this however, Jennifer must have a sworn affidavit showing reasonable evidence that Tosin has infringed or intends to infringe on her copyright.
This is also another civil remedy, if is non-monetary, meaning that no monetary compensation is made to Jennifer if this is the case. It involves an order made by the court directing for all infringing materials in Tosin’s possession to be delivered to the Jennifer , specifically to be destroyed
This can be done in addition to a claim for consequential damages.
Delivery up is limited to articles only in Tosin’s possession not from other third parties such as his independent distributors.
RENDERING OF ACCOUNT
This is a remedy that can be gotten if the infringing materials have made some profit already.
In such a case of maybe pirated records of Jennifer’s that have made a profit, the court will use Tosin’s accounts to make the best estimation of profit and give to Jennifer all of it.
As a criminal remedy to having her copyright violated, Jennifer can by legal redress, according to the copyright, S.20 of the Act get Tosin to serve a term of imprisonment not exceeding two years if it’s proved he did it unknowingly.
However if he did it intentionally, S. 491 of the Criminal Code clearly shows that Tosin is to be fined at not exceeding N4 for each copy dealt with or a maximum of N100.
N.B Some remedies are mutually exclusive and cannot both be claimed by Jennifer, for example, she cannot obtain both the rendering of account remedy and damages at the same time.
In all, Jennifer has many options, and what she chooses depends on the damage done so far by Tosin’s actions and what is best for her business.
To have an option such as Jennifer when such arises, you need to have copyrighted your work in the first place. Let’s help you avoid this drama and take that first step.