Remedies for Copyright Infringement in Nigeria: Civil and Criminal Action

In 2020, the Court of Appeal in Lagos Division upheld an award of N5.4 billion against Multichoice Nigeria for using copyrighted musical works across its DSTV platform without licence or payment. It is, to date, the largest published copyright damages award in Nigerian legal history, and it did not happen because Multichoice was a careless or unsophisticated operator. It happened because the company failed to ensure it held valid licences for the works it was broadcasting, and because the rights holder had the means and the determination to pursue the full range of remedies the law makes available.

Understanding remedies is not optional knowledge. It is where the entire body of copyright doctrine becomes practical. An infringement that a rights holder cannot remedy is legally meaningless. An infringement that a defendant cannot properly respond to carries disproportionate commercial risk. This article maps every civil and criminal remedy available under the Copyright Act 2022, explains when each one is available, what a court must find to award it, and how the remedies interact with each other.

1. Jurisdiction: Federal High Court Only

Section 37(1) of the Copyright Act 2022 establishes that copyright infringement is actionable in the Federal High Court exercising jurisdiction in the place where the infringement occurred.¹ The Federal High Court has exclusive original jurisdiction over all copyright, patent, and trade mark matters by virtue of section 251(1)(f) of the 1999 Constitution and the relevant provisions of the Federal High Court Act.²

This exclusivity has a practical procedural consequence that students frequently misstate: a copyright infringement suit filed in a State High Court is not merely irregular, it is fundamentally incompetent. The State High Court has no jurisdiction to entertain it, and the suit will be struck out rather than transferred, leaving the claimant to start again in the correct court. The venue rule, that the action is filed in the Federal High Court sitting at the location where the infringement occurred, is separate from the jurisdiction rule: infringement that occurs in Kano is actionable in the Federal High Court sitting in Kano, not in Lagos, though in practice many copyright disputes are filed in the Lagos Division of the Federal High Court given its volume of commercial activity.

The Allen Oche v. Nigerian Copyright Commission controversy is worth flagging here. A trial court decision in that case held, controversially, that registration of a copyright with the NCC is what confers locus standi to sue, not the existence of the copyright itself.³ This reasoning contradicts the clear structure of the Copyright Act 2022, which gives standing to the copyright owner, assignee, or exclusive licensee under section 37(1) regardless of registration, and which treats the section 43 register as creating evidentiary presumptions rather than creating rights. The decision has been criticised and does not represent the mainstream judicial interpretation of the standing provisions, but students should be aware of it precisely because it illustrates the kind of judicial misreading that can arise when a court conflates the evidentiary benefit of registration with the substantive rights to which registration merely provides access.

2. Civil Remedies: The Statutory Framework

Section 37(2) of the Act provides that in any civil action for infringement, all such relief by way of damages, injunction, accounts, or otherwise shall be available as is available in corresponding proceedings in respect of infringement of other proprietary rights.⁴ This is a deliberately open-ended provision that incorporates by reference the full range of remedies available for the infringement of any property right under Nigerian law, not merely those expressly listed.

The civil remedies are:

Damages. The primary compensatory remedy. Damages are assessed to place the claimant, so far as money can do it, in the position they would have been in if the infringement had not occurred. Courts have awarded both general damages, reflecting a reasonable royalty for the unauthorised use calculated by reference to market rates for similar licensed uses, and special damages where the claimant can specifically prove quantifiable losses such as lost sales or diverted revenue.⁵

Account of profits. An alternative to damages, not an addition to them. An account of profits requires the defendant to disgorge the net profit they earned from the infringing activity. The claimant who elects an account of profits gives up any claim to damages from the same infringement; they cannot recover both.⁶ An account of profits is most strategically valuable where the defendant has earned significantly more from the infringement than the claimant has lost: a piracy operation that has sold millions of bootleg copies at low cost may have made far greater profits than the rights holder lost in corresponding legitimate sales, and an account of profits would capture the full profit rather than merely the lost sales.

Injunction. An equitable remedy requiring the defendant to stop the infringing activity. A permanent injunction is granted after a full trial finding of infringement and is the standard remedy alongside damages in a successful infringement action. An interlocutory injunction can be granted before trial where the claimant demonstrates a serious question to be tried, shows the balance of convenience favours restraint, and shows that damages would not be an adequate remedy if the court waits until trial. The Nollywood and Afrobeats context gives the interlocutory injunction particular commercial importance: if a pirated version of a new film or album is not stopped before or at release, the market damage that occurs in the first days and weeks of distribution may be irreversible even if the claimant eventually wins at trial.

One express limitation on injunctions deserves note. Section 37(5) of the Act provides that no injunction shall be issued in proceedings for copyright infringement that would require a completed or partly completed building to be demolished or prevent the completion of a partly completed building.⁷ This provision protects third parties who have acquired interests in a building that incorporates, for example, an architectural work that infringes copyright, from having their investment destroyed to satisfy a remedy that is disproportionate to the original harm.

Delivery up and forfeiture. Section 40 of the Act allows the court to order that infringing copies and any equipment used specifically to make them be delivered up to the copyright owner or destroyed.⁸ In the Alaba International piracy context, delivery up means physical seizure and destruction of the pirated discs, digital files, and duplicating equipment. For online infringement, its equivalent is the takedown and disabling order provided in Part VII.

Order for inspection and seizure. Section 38 of the Act allows the court, on the application of the copyright owner or exclusive licensee, to issue an order authorising the inspection and seizure of infringing copies and equipment used to make them, before or during proceedings.⁹ This is the civil equivalent of a search order and is most practically valuable where the defendant is likely to destroy or disperse evidence if given advance notice of a standard court application.

3. Damages vs Account of Profits: Strategic Choice and Election

The election between damages and account of profits must be made no later than the point at which judgment is given, and in practice it is a decision that requires careful analysis of the evidence available. A rights holder who cannot prove quantifiable loss but knows the defendant earned substantial profit from the infringement will generally prefer an account of profits. A rights holder who can prove significant market damage from the infringement, exceeding what a profit calculation would yield, will generally prefer damages.

The election is irrevocable once made. A claimant who elected an account of profits, receives a disappointing profit calculation from the defendant’s disclosure, and then attempts to revert to a damages claim is not permitted to do so. This is why, in complex copyright litigation involving large-scale commercial infringement, claimants typically request full financial disclosure from the defendant before electing, allowing the evidence to inform the strategic choice.

Courts in Nigeria have shown willingness to make substantial awards under both heads. The Multichoice v. MCSN award of N5.4 billion, principally on a damages basis, demonstrates that Nigerian courts will not limit copyright damages to nominal or token amounts where the evidence supports a finding of large-scale commercial infringement.¹⁰ The size of that award also reflects the statutory principle that copyright is a proprietary right, and that its infringement should attract the same level of compensatory response as the infringement of any other valuable commercial asset.

4. Flagrant Infringement and Additional Damages

Section 37(4) of the Act gives the court discretion to award additional damages, beyond ordinary compensatory damages, where it is satisfied that the infringement was flagrant.¹¹ Flagrant infringement is infringement carried out with full knowledge of its character, in circumstances that demonstrate callous disregard for the rights holder’s legitimate interests. A large broadcasting organisation that continues to use copyrighted works after receiving formal legal notice from the rights holder, or a distributor who resumes infringing activities after receiving and ignoring a court injunction, would be candidates for an additional damages award.

Additional damages serve a deterrent function alongside compensation. They signal to commercial actors that treating copyright infringement as merely a cost of doing business, to be quantified as royalties-avoided rather than as a legal liability to be managed, carries a legal risk that exceeds the value of the royalties they failed to pay. In the Nigerian market context, where the institutional deterrent of criminal prosecution is inconsistently applied, the availability of significant civil additional damages is an important part of the enforcement architecture.

5. Criminal Liability: Section 44

Section 44 of the Copyright Act 2022 creates criminal copyright offences with significantly expanded and enhanced penalties compared to the repealed 2004 Act.¹² The principal criminal acts include: making or importing infringing copies for sale or hire or for purposes of trade or business; making or possessing equipment specifically designed for making infringing copies; performing a copyright work for trade purposes without authorisation; and communicating or making available a copyrighted work without authorisation.

The Act provides that a corporate body may be found guilty of a criminal copyright offence, with liability attaching to the corporate officers who authorised or failed to prevent the offending conduct.¹³ This corporate criminal liability provision is important for the Alaba International and online piracy context, where infringing activity is frequently organised through corporate structures precisely to diffuse personal liability.

Criminal penalties under the 2022 Act have been substantially increased compared to the old Act. Individuals convicted of criminal copyright infringement face custodial sentences and substantial fines. The Act also empowers the Nigerian Copyright Commission to compound offences by accepting a financial payment in place of prosecution, a form of plea bargain that gives the Commission a practical enforcement tool that avoids the delay and expense of criminal prosecution where the offender is willing to pay and the case is appropriately suited to compounding.¹⁴

One significant extension in the 2022 Act is the express criminalisation of circumventing technological protection measures (TPMs), such as breaking the digital locks on encrypted content, and the removal or alteration of rights management information, such as stripping watermarks and embedded metadata from digital files. These offences, governed by sections 50 and 51, were entirely absent from the old Act and directly address the digital piracy patterns most relevant to Nollywood and Afrobeats, where film files are routinely stripped of watermarks and re-uploaded without attribution after initial distribution.¹⁵

6. Border Measures: Customs Seizure Under Section 53

Section 53 of the Act empowers a copyright owner or exclusive licensee to give notice in writing to the Nigerian Customs Service identifying a copyright work and requesting that the Customs Service treat as prohibited goods any infringing copies of that work being imported into Nigeria.¹⁶ The notice may remain in force for a period not exceeding five years, renewable by fresh notice. This border measure does not require prior court authority; it activates the Customs Service’s existing powers to seize prohibited imports at the point of entry.

The border measure is practically significant for the large volume of counterfeit and pirated physical goods, including DVDs, branded merchandise, and physical consumer products with copyright-protected labels and packaging, that enter Nigeria through its seaports and land borders. Its limitation is that it depends on the Customs Service’s capacity and willingness to act on the notice, which in practice varies significantly across different ports of entry.

7. The NCC’s Own Enforcement Powers

Beyond the court-based remedies available to individual rights holders, the Nigerian Copyright Commission has its own enforcement powers that operate in parallel. Section 86 of the Act empowers copyright inspectors appointed by the Commission to enter premises, inspect, search, and seize suspected infringing copies and equipment with or without a warrant in urgent circumstances.¹⁷ The Commission can initiate criminal prosecutions in its own right, and it regularly conducts enforcement raids on markets, printing establishments, and distribution hubs where infringing activity is suspected.

The NCC’s enforcement function creates an important practical option for rights holders who cannot afford the cost of civil litigation. Reporting an infringement to the Commission and requesting an enforcement action is a lower-cost route to stopping infringing activity than commencing a Federal High Court action, though it offers less control over the outcome and does not generate damages or an account of profits for the rights holder.

Students should also note section 104(2) of the Act, which requires a pre-action notice before commencing proceedings against the Nigerian Copyright Commission itself.¹⁸ This provision protects the Commission from being sued without prior warning, giving it an opportunity to settle or respond before litigation commences. It is not relevant to actions against private infringers, but it is a trap for a claimant who sues the Commission without observing this procedural prerequisite.

8. Performers’ Rights Remedies: A Separate Regime

Section 66 of the Act, governing performers’ rights, creates its own remedies framework running parallel to but distinct from the copyright remedies in Part IV. A performer whose rights have been infringed is entitled to damages, an injunction, an account of profits, and conversion.¹⁹ The conversion remedy, which treats infringing copies as the performer’s property and allows recovery of their value, is not expressly listed in the main copyright remedies provision and represents an additional head of relief specifically available for performers’ rights claims.

Where an unauthorised recording of a performance is in the possession, custody, or control of a person in the course of trade, the performer is additionally entitled to an order that the recording be forfeited and delivered up to them.²⁰ This forfeiture remedy is distinct from the main copyright forfeiture under section 40, and students should keep the two regimes separate: performers’ rights remedies arise under the Part VIII performers’ rights provisions, while the main copyright remedies arise under Part IV.

9. The CMO Standing Restriction: Section 39 Limitation

An important procedural limitation embedded in section 39(9) of the Act directly affects the ability of collective management organisations to bring copyright infringement proceedings. The provision states that no action for the infringement of copyright shall be commenced or maintained by any person carrying on the business of negotiating and granting licences, collecting and distributing royalties, or representing more than fifty copyright owners in any category of works, unless they are approved under the Act to operate as a CMO.²¹ An unapproved CMO cannot sue for copyright infringement regardless of the merits of the underlying claim, a restriction that was central to the MCSN-COSON dispute discussed in Economic Rights of Copyright Owners in Nigeria.

This restriction does not affect individual copyright owners bringing their own claims, and it does not affect an entity that has received an outright assignment of copyright (as distinct from merely representing the owner as an agent or intermediary). The distinction between owning the copyright and representing the owner for collection purposes is the critical line: an owner suing in their own right is not subject to the CMO registration requirement; an organisation acting as an intermediary between owners and users is.

10. The Constitutional Dimension: Property Rights and Proportionality

The remedies framework sits directly within the section 44 constitutional property rights guarantee. Because copyright is expressly deemed movable property under section 30(1) of the Act, the remedies for its infringement must be proportionate to its status as a full property right rather than merely a statutory privilege. The N5.4 billion award in Multichoice v. MCSN is consistent with this constitutional characterisation: the court treated the infringement of the right to receive remuneration for broadcast use of musical works as the infringement of a property right deserving full compensatory vindication, not a token licensing fee retrospectively imposed.

Section 36 of the 1999 Constitution, which protects the right to fair hearing, is also engaged in the remedies context. The order for inspection and seizure under section 38, which can be granted without notice to the defendant in urgent cases, is an exception to the fair hearing principle that the courts have been careful to confine to genuinely urgent circumstances. A without-notice search order made on insufficient grounds is susceptible to challenge on both statutory and constitutional bases, and Nigerian courts have emphasised that ex parte relief of this kind must not become a routine tool for applicants who simply prefer not to give the defendant prior notice.

11. Problem Question Framework

When a problem question asks you to advise a claimant on remedies, work through this sequence.

Confirm that infringement has been established. Remedies only arise on the finding, or the assumed finding in a problem scenario, of a primary or secondary infringement.

Confirm jurisdiction. The Federal High Court exercising jurisdiction where the infringement occurred. Flag the standing issue if the claimant is a non-exclusive licensee.

Identify what the claimant’s primary objective is. Is the priority to stop the infringement immediately (injunction first, including interlocutory relief), to recover money (damages or account of profits), to destroy the infringing copies (delivery up and forfeiture), or to gather evidence of the scale of infringement (inspection and seizure order)?

Address the damages/account of profits election. Advise the claimant to obtain the defendant’s financial disclosure before electing. Explain that the election is mutually exclusive and irrevocable. Flag the availability of additional damages if the infringement was flagrant.

Consider whether criminal action is worth pursuing. Is the infringement on a commercial scale, suggesting criminal liability under section 44? Is the NCC likely to act on a complaint? Would compounding the offence under the NCC’s plea bargain power serve the claimant’s interests better than full prosecution?

For performers’ rights claims, apply the separate Part VIII remedies regime. Include conversion and forfeiture of unauthorised recordings if the facts involve the unauthorised capture or distribution of a live or recorded performance.

12. Common Student Mistakes

Treating an account of profits as an addition to damages. It is an alternative. The claimant must elect one or the other. An answer that awards both damages and an account of profits from the same infringement has misapplied the law.

Failing to address the interlocutory injunction in time-sensitive scenarios. Where a problem involves an ongoing or imminent infringement, advising only on final remedies at trial understates the available options. The interlocutory injunction, with its American Cyanamid-style test for serious question, balance of convenience, and adequacy of damages, is often the most urgently practical relief available.

Omitting forfeiture and delivery up as distinct remedies. Students often list damages and injunction and stop. Delivery up under section 40, seizure under section 38, and the border notice under section 53 are additional remedies that a complete answer should identify.

Assuming a non-exclusive licensee can bring proceedings. Only the copyright owner, assignee, or exclusive licensee has standing under section 37(1). A non-exclusive licensee must persuade the copyright owner to sue, or bring a different type of claim, but cannot sue for copyright infringement in their own right.

Confusing civil and criminal proceedings. Civil infringement proceedings aim at compensation, injunction, and delivery up. Criminal proceedings aim at punishment and are initiated by the NCC or the prosecution, not by the private rights holder. A private rights holder can report to the NCC and encourage prosecution but does not control the decision to prosecute.

Ignoring the CMO standing restriction. Where a problem question involves a collecting society claiming royalties, the first question is whether it is registered with the NCC. An unregistered CMO has no standing to sue regardless of how valid the underlying copyright claim would be.

13. Quick Reference Table

14. Key Cases

Multichoice (Nig) Ltd v. MCSN Ltd/Gte (2020) 13 NWLR (Pt. 1742) 415 is the landmark Nigerian decision on the scale and seriousness of civil copyright remedies. The N5.4 billion damages award for the unauthorised broadcast of musical works demonstrates the willingness of Nigerian courts to make substantial compensatory awards proportionate to the commercial scale of the infringement, and confirms that copyright damages are not capped at a notional licensing fee. The case also addresses the standing of an exclusive licensee, the role of CMO registration in infringement proceedings, and the importance of evidence of the scope and duration of the infringing use in quantifying the award.

NCC v. Tony Okoroji and Ors confirms the procedural consequences of operating a collecting society without NCC approval, establishing that a CMO whose licence has been suspended cannot maintain infringement proceedings in respect of the rights it purports to manage during the suspension period.

Zain Nigeria v. TV Xtra Productions addressed the basis for calculating damages in a Nigerian copyright infringement case involving the unauthorised use of a television programme format, with the court examining both the market value of the work and the commercial gain made by the infringer as relevant factors in the assessment.

Footnotes

¹ Section 37(1), Copyright Act 2022.

² Section 251(1)(f), Constitution of the Federal Republic of Nigeria 1999.

³ Allen Oche v. Nigerian Copyright Commission, discussed critically in Aluko & Oyebode, ‘Nigeria Copyright Act 2022’ (2023), noting the court’s controversial holding that registration confers locus standi.

⁴ Section 37(2), Copyright Act 2022; Lexology, ‘In brief: copyright infringement and remedies in Nigeria’ (2024), confirming the range of remedies available under section 37(2).

⁵ Banwo & Ighodalo, ‘Copycat or Coincidence’ Lexology (2020), discussing the basis for copyright damages in Nigeria.

⁶ Mondaq, ‘Copyright Comparative Guide: Nigeria’ (2025), confirming that an account of profits is an alternative to damages, not an addition to it.

⁷ Section 37(5), Copyright Act 2022.

⁸ Section 40, Copyright Act 2022.

⁹ Section 38, Copyright Act 2022.

¹⁰ Multichoice (Nig) Ltd v. MCSN Ltd/Gte (2020) 13 NWLR (Pt. 1742) 415.

¹¹ Section 37(4), Copyright Act 2022.

¹² Section 44, Copyright Act 2022; Mondaq, ‘A Review of the Nigerian Copyright Act 2022’ (2023), noting that the Act introduces copyright offences with enhanced penalties including criminalisation of communication and making-available without authorisation.

¹³ Section 46, Copyright Act 2022.

¹⁴ Mondaq (n 12), describing the NCC’s power to compound offences by accepting a financial payment not exceeding double the maximum fine.

¹⁵ Sections 50 and 51, Copyright Act 2022; S.P.A. Ajibade & Co, ‘A Review of the Nigerian Copyright Act 2022’ (2023), identifying circumvention of TPMs and removal of rights management information as new criminal offences.

¹⁶ Section 53, Copyright Act 2022.

¹⁷ Section 86, Copyright Act 2022.

¹⁸ Section 104(2), Copyright Act 2022; Lexology (n 4), noting that section 104(2) provides for a limitation on actions against the NCC through a pre-action notice requirement.

¹⁹ Section 66, Copyright Act 2022; Lexology, ‘Nigerian Copyright Act’ (2024), confirming that performers are entitled to damages, injunction, account for profit, or conversion.

²⁰ Section 66, Copyright Act 2022.

²¹ Section 39(9), Copyright Act 2022.