Copyright Infringement in Nigeria: Elements, Defences and Burden of Proof

An Afrobeats producer samples a two-bar percussion loop from a 1974 highlife recording and builds an entirely new track around it. A fashion blogger reposts a photographer’s image on Instagram with a different watermark and no credit. A printing shop reproduces fifty copies of a Nigerian textbook for a group of university students. In each scenario someone has used a copyrighted work without permission. The question this article answers is what the copyright owner must prove to succeed in an infringement action, what the defendant can argue in response, and how the burden of proof operates in proceedings before the Federal High Court.

Infringement is the hinge on which all copyright law turns. The rights identified in Economic Rights of Copyright Owners in Nigeria only have practical force to the extent that a rights holder can identify when they have been infringed, assemble the necessary evidence, and bring a successful claim. Getting the elements right matters enormously: an infringement suit that fails because the claimant cannot establish causal connection is indistinguishable in its practical result from a suit where no copyright exists at all.

1. The Statutory Basis: Section 36 of the Copyright Act 2022

Section 36(1) of the Copyright Act 2022 provides that copyright is infringed by any person who, without the licence or authorisation of the copyright owner, does any of the acts that the copyright owner has the exclusive right to do, or who does any such act in relation to any adaptation of the work.¹ Section 36(2) clarifies that the doing of any such act must be in relation to the whole of the work or a substantial part of it, either in its original form or in any form recognisably derived from the original.²

Reading section 36 alongside sections 9 to 13, which define the exclusive acts for each category of work, produces the analytical framework for every infringement claim. An infringement occurs when: a person does an act that falls within the exclusive rights for the relevant category of work; without the licence or authorisation of the copyright owner; in relation to the whole or a substantial part of the work.

The threshold is strict liability in the sense that primary infringement does not require the claimant to prove that the defendant knew they were copying a protected work, or intended to infringe.³ Knowledge and intention are relevant not to liability but to remedy: they affect the level of damages the court may award, and they are central to the innocent infringement provision discussed in section 7 below.

2. Pre-Conditions: What the Claimant Must Establish First

Before the three elements of infringement can be analysed, two pre-conditions must be satisfied. The claimant must establish that copyright subsists in the work, and that the claimant has standing to bring the claim.

Copyright subsistence requires the claimant to show that the work is eligible, qualifies under sections 5 to 8, has been fixed, and that the copyright period has not expired. The statutory presumption in section 43 of the 2022 Act assists claimants who have registered their work with the Nigerian Copyright Commission: a registration certificate is prima facie evidence of copyright subsistence and authorship, shifting the evidential burden to the defendant to rebut.⁴ Where no registration exists, the claimant must prove subsistence through other evidence, including original drafts, production records, or the testimony of witnesses who can attest to the work’s creation.

Standing requires the claimant to be the copyright owner, an assignee, or an exclusive licensee of the rights allegedly infringed.⁵ A non-exclusive licensee has no standing to sue for infringement in their own right. An exclusive licensee has standing in relation to the specific rights covered by their exclusive licence, but where the copyright owner and the exclusive licensee bring concurrent infringement proceedings in respect of the same infringement, the one who proceeds first may not do so without the leave of court unless the other is joined as a plaintiff or added as a defendant.⁶ This concurrent standing rule prevents double recovery and ensures that related claims are adjudicated together.

3. First Element: The Causal Connection Requirement

The first element of infringement that a claimant must establish is that the defendant’s work was derived from the claimant’s work, not independently created. Copyright does not protect against independent parallel creation. If two poets independently write a poem that turns out to be substantially identical, neither infringes the other’s copyright, because there is no causal derivation between the works.

The causal connection does not need to be direct. In CBS Inc. and Others v. Intermagnetic Co. Ltd and Another (1977-1989) 2 IPLR 355, the court held that the causal connection required is between the works, not necessarily between the parties themselves.⁷ Where the defendant did not personally copy the plaintiff’s work but used an intermediate copy that itself derived from the plaintiff’s work, the causal chain is not broken. This principle is directly relevant to Nollywood and Afrobeats piracy chains, where a master copy may pass through several hands before becoming the version that an end infringer distributes, and each link in the chain is connected causally to the original.

In practice, causal connection is often proved by inference rather than direct evidence. Where the claimant’s work precedes the defendant’s in time, the defendant had the opportunity to access the claimant’s work, and the similarities between the two works are too detailed or idiosyncratic to be attributable to coincidence or common source material, a court will draw the inference of copying. The more distinctive, original, or unusual the features shared between the two works, the more readily the inference will be drawn.

The most important defence at this first stage is independent creation: the defendant may prove that they created their work without any knowledge of or access to the claimant’s work. Independent creation is a complete defence to any causal connection argument, regardless of how similar the resulting works turn out to be. The logical premise is that two people can arrive at the same or similar expression by chance, and copyright law does not monopolise expression to the point of penalising coincidence.

4. Second Element: Substantial Taking

Having established causal connection, the claimant must then prove that a substantial part of the copyrighted work was taken by the defendant. Section 36(2) makes clear that infringement can occur in relation to the whole or a substantial part of the work, so taking less than the entire work is not automatically a defence.

The test for substantiality is qualitative rather than quantitative. The leading Nigerian authority confirms that what matters is the quality and significance of what was taken, not merely its proportion of the original.⁸ The practical implication is that taking a small portion of a work can still constitute infringement if that portion is the most original, distinctive, or commercially recognisable part. Taking a large portion of a work that is itself largely formulaic or derivative may not constitute a substantial taking if the portion taken contains little that is original.

A few illustrations help anchor this principle. A journalist who reproduces three paragraphs from a twenty-chapter Nigerian novel has taken a small quantity, but if those three paragraphs are the climactic revelation scene around which the entire novel’s narrative is constructed, the court is likely to find a substantial taking. In Okilo v. Dick France and Another (2003-2007) 5 IPLR 243, the court found infringement of a musical work where the defendant had duplicated the most recognisable melodic material of the plaintiff’s composition, even though the full extent of the copying did not reach the whole of the work.⁹ In a separate example from a news broadcast context, a court held that the use of a twenty-second portion of a four-minute musical work in the background of a news clip amounted to substantial copying, because the portion used was the most recognisable part of the work.¹⁰

The “heart of the work” formulation is the most useful way for students to remember this test: has the defendant taken the heart of the claimant’s work? If what was taken is the most original, most identifiable, or most commercially valuable element of the work, that is a substantial taking even if it represents a small percentage of the total.

Two additional points refine the substantial taking analysis. First, what was taken must itself be original, part of the expression protected by copyright, not merely a reproduction of pre-existing material that the claimant happened to incorporate into their work. Second, the idea-expression dichotomy discussed in Works Eligible for Copyright in Nigeria Under the Copyright Act 2022 applies here: taking the idea that underlies a work is never an infringement, however central that idea is to the work’s commercial or artistic value. Copyright protects the specific expression, and the substantial taking must be a taking of expression.

5. Secondary Infringement: Section 45 and the Knowledge Requirement

Section 45 of the Copyright Act 2022 creates liability for acts of secondary infringement, which are distinguished from primary infringement by the requirement that the defendant had knowledge, or constructive knowledge, of the infringing character of the copies they dealt with.¹¹

Acts of secondary infringement include importing into Nigeria infringing copies for purposes other than private or domestic use; selling, renting, offering for sale or hire, or exhibiting in public any infringing copy in the course of trade; distributing infringing copies otherwise than in the course of trade but to such an extent as to affect prejudicially the owner of the copyright; permitting a place of public entertainment to be used for an infringing public performance where the person permitting had reason to know the performance would infringe; permitting reproduction of a copyright work within the infringer’s premises; and performing a work in the course of trade or business without authorisation.

The critical element that distinguishes all of these from primary infringement is that the defendant must have known or had reason to believe that the copies were infringing. A market trader in Alaba International who sells DVDs without knowing they are pirated copies is not, strictly speaking, a secondary infringer if they genuinely had no reason to suspect the copies were infringing. Once they are told the copies are pirated, or once the circumstances are such that any reasonable person would have investigated, constructive knowledge is established and they become liable. This is why the Nigerian Copyright Commission and rights holders routinely serve notices on market operators: the service of such a notice destroys any later claim of innocent secondary infringement.

6. Online and Intermediary Infringement: Safe Harbour and Its Limits

Part VII of the Copyright Act 2022 introduces, for the first time in Nigerian copyright law, a framework for the liability of online service providers, modelled on the safe harbour provisions of the US Digital Millennium Copyright Act.¹² Under this framework, an online service provider is not liable for copyright infringement occurring through their platform if they meet specified conditions: they must have no actual knowledge of the infringing activity; they must act expeditiously to remove or disable access to infringing content when they receive a valid takedown notice; and they must not have received a financial benefit directly attributable to the infringing activity where they had the right and ability to control it.

A service provider who fails to comply with a valid notice-and-takedown request loses safe harbour protection and may be held liable for infringement to the same extent as the person who placed the infringing content on the platform. This is the provision that most directly addresses the Nollywood and Afrobeats piracy reality of Nigerian content appearing on social media platforms and video-sharing services without the rights holder’s consent: a Nigerian rights holder who has filed a takedown notice under section 28 of the Act, and whose request is then ignored by the platform, now has an independent legal basis to sue the platform as well as the person who posted the infringing content.

7. Innocent Infringement and Its Effect on Remedies

Section 37(3) of the Copyright Act 2022 provides that where the defendant proves they did not know and had no reason to believe that copyright subsisted in the work at the time of the infringement, the court shall not award damages against the defendant in respect of that infringement.¹³ This is the innocent infringement provision, and it is important to understand both what it does and what it does not do.

Innocent infringement is not a defence to liability. A finding of innocent infringement means the defendant infringed copyright but did so without any basis for knowing that copyright existed in the work. The infringement is still established; the court simply declines to award damages. The claimant remains entitled to other remedies: an injunction to restrain future infringement, an account of the defendant’s profits earned from the infringement, and delivery up and destruction of infringing copies. Only the damages element is denied.

This distinction matters practically. A large-scale distributor who sells thousands of pirated discs, but genuinely had no basis to know the content was protected, may escape a damages award while facing an injunction and being stripped of all profits from the distribution. The injunction is often the more commercially important remedy anyway, because a rights holder who cannot recover damages can still stop the ongoing harm.

The innocent infringement defence also creates an interesting strategic dimension in Nigerian IP litigation. Where a rights holder has not registered their copyright with the NCC, and where the work has not been widely commercially publicised, the defendant has a stronger evidential basis for claiming they did not know and could not have known copyright subsisted. This is one of the reasons why registration with the Nigerian Copyright Commission, while not required for copyright to subsist, is strongly advisable in practice: a registered copyright gives rise to the statutory presumption under section 43 that copyright subsists, and makes any innocent infringement defence significantly harder to sustain.

8. Defences to Copyright Infringement

Beyond causal connection and substantial taking as foundational elements the claimant must establish, defendants have a range of specific defences available.

Fair dealing is the most widely applicable and commercially significant defence, addressed in detail in Fair Dealing in Nigerian Copyright Law: What Changed Under the 2022 Act. A defendant who establishes that their use falls within the open fair dealing provision of section 20(1)(a), assessed against the four-factor test, is not liable for infringement regardless of whether causal connection and substantial taking are otherwise established.

Independent creation is a complete answer to the causal connection element: the defendant who can prove they created their work independently, without access to or knowledge of the claimant’s work, bears no liability even where the resulting work is substantially similar to the claimant’s.

Licence operates as a permission that transforms what would otherwise be an infringement into an authorised use. Where the defendant holds a valid licence, express or implied, the claimant’s case fails because the unlicensed use element of section 36(1) is not established. The licence need not be exclusive; even a non-exclusive oral licence, if established, is a complete defence to the infringement claim. An implied licence arising from the copyright owner’s conduct under section 30(4) of the Act is equally effective as a defence.

Copyright not subsisting or expired operates at the pre-condition stage: if the work is not eligible, does not qualify, or the copyright period has expired, there is nothing to infringe.

Specific statutory exceptions under sections 20 to 27 of the Act create a range of particular defences beyond fair dealing, including acts for educational instruction or examination, archival and library uses, accessible format copies for print-disabled persons, and the transient copies exception for technological processes.

The public domain defence is effectively the same as copyright having expired, but students should understand that it is possible for a claimant to assert copyright in a work that has actually entered the public domain, either because the term has expired or because the claimant is not actually the copyright owner at all, and this is an argument the defendant needs to advance affirmatively with evidence.

9. The Idea-Expression Dichotomy as a Structural Constraint on Infringement Claims

The idea-expression dichotomy, established in Plateau Publishing Co. Ltd v. Adophy as the foundational principle of Nigerian copyright doctrine, functions as a structural constraint on what can ever constitute actionable infringement. Because copyright protects only the specific form of expression and not the underlying idea, a defendant who has taken only the idea behind a work, however clearly and directly, has not infringed. This principle protects several categories of activity that rights holders sometimes wish were infringement but are not.

A rival Nollywood studio that makes its own film about a corrupt Lagos police officer has not infringed the copyright of an earlier film on the same theme. A competing musician who writes lyrics about heartbreak, using common imagery like rain and distance, has not infringed the copyright of an earlier song on the same subject using similar imagery, if the specific words and melodic contours are different. A competing textbook author who writes a new chapter explaining the same legal principle the claimant has explained in their textbook has not infringed, provided they have expressed the principle in their own words rather than reproducing the claimant’s specific sentences.

The challenge for courts is the spectrum between pure idea and fully particular expression: at some point between the broadest thematic abstraction (“a story about corruption”) and the most specific narrative detail (“the precise sequence of scenes, dialogue, and plot developments”), there is a line where copyright protection begins. Setting that line in any particular case requires fact-specific judgment, and it is not always clear where it falls. The more specific, detailed, and original a claimant’s expression, the more protection they receive; the more their work consists of common forms, stock characters, and familiar structures, the thinner their copyright and the narrower the zone of expression that can be infringed.

10. The Constitutional Dimension: Strict Liability and Section 36 CFRN

The strict liability character of primary copyright infringement sits alongside the constitutional protections in section 36 of the 1999 Constitution.¹⁴ For civil copyright infringement, the absence of a knowledge or intention requirement does not conflict with section 36(5) of the Constitution, which presumes innocence of criminal offences: civil liability operates on a different standard, and strict civil liability is a well-established common law concept unaffected by the criminal presumption of innocence.

For criminal copyright infringement under section 44 of the 2022 Act, the position is different. Criminal liability requires the prosecution to prove a mental element consistent with the section 36(5) presumption. Section 44 of the Act does require proof of purposive conduct: the criminal acts specified, including making or importing infringing copies for sale or trade, or distributing infringing copies for commercial purposes, involve conduct that is inherently purposeful, and a court would be expected to require proof that the defendant knowingly engaged in the specified conduct even where the statute does not expressly require proof of knowledge of the infringing character of the copies.

11. Problem Question Framework

When an examination question raises copyright infringement, work through the following sequence.

Establish pre-conditions first. Does copyright subsist in the claimant’s work? Is it eligible, qualifying, fixed, and within the copyright period? Does the claimant have standing as the copyright owner, assignee, or exclusive licensee?

Identify the act allegedly done. Which of the exclusive acts in sections 9 to 13 has the defendant done? Is it reproduction, performance, communication to the public, the making-available right, broadcasting, distribution, or adaptation? A use that does not engage any of these exclusive acts is not infringement regardless of how closely it resembles the original.

Apply the three elements in sequence: first, causal connection; second, substantial taking; third, absence of licence or authorisation. Address each separately. Do not collapse them.

Apply the substantiality test carefully. Identify what precisely was taken, assess its qualitative significance to the original work, and articulate specifically why it is or is not the “heart” of the original.

Consider defences. Is fair dealing available under section 20? Has the defendant established independent creation? Is there evidence of a licence, express or implied? Does the innocent infringement provision under section 37(3) apply, bearing in mind it affects only damages and not other remedies?

For online or platform infringement, apply the Part VII safe harbour analysis. Has the platform received a valid takedown notice? Did it comply expeditiously? If not, secondary liability may attach.

12. Common Student Mistakes

Treating primary infringement as requiring knowledge or intention. Knowledge and intention are not required to establish primary infringement. They are relevant to remedies through the innocent infringement provision, not to liability itself.

Confusing the causal connection element with similarity. Similarity between two works does not automatically prove causal connection. The claimant must establish derivation, that the defendant’s work was taken from theirs rather than independently created. Works can be similar by coincidence, and coincidence is not infringement.

Applying the substantiality test quantitatively. The test is qualitative: the quality and significance of what was taken matters, not the percentage of the original that was reproduced. An answer that concludes there is no substantial taking because only ten percent of the work was copied has misapplied the test.

Treating ideas as protectable by copyright. The idea-expression dichotomy means that taking an idea, theme, plot concept, or factual information from a copyrighted work is never infringement. Only the taking of the specific original expression is actionable.

Treating innocent infringement as a full defence. Innocent infringement eliminates the right to damages but does not defeat the infringement claim. The defendant who proves innocent infringement can still face an injunction, an account of profits, and an order for delivery up. Treating it as a get-out-of-jail-free card is an error.

Failing to distinguish primary from secondary infringement. Primary infringement is strict liability. Secondary infringement requires knowledge or constructive knowledge of the infringing character of the material. Where a problem question involves a distributor or market trader rather than the person who made the infringing copies, the secondary infringement analysis with its knowledge element is what applies.

13. Quick Reference Table

14. Key Cases

Plateau Publishing Co. Ltd v. Adophy (1986) 4 NWLR (Pt. 34) 205 remains the foundational Nigerian authority on originality and the idea-expression dichotomy, establishing that copyright protects the specific form of expression, not the underlying idea, and that originality lies in expression rather than the novelty of the concept expressed. These principles govern the entire framework for analysing whether a taking is actionable.

CBS Inc. and Others v. Intermagnetic Co. Ltd and Another (1977-1989) 2 IPLR 355 confirmed that the causal connection required in a Nigerian copyright infringement claim is a connection between the works, not necessarily between the parties personally, and that indirect derivation through an intermediate copy does not break the causal chain.

Okilo v. Dick France and Another (2003-2007) 5 IPLR 243 applied the qualitative substantial taking test in the context of a musical work, holding that duplicating the most recognisable melodic material of a composition is a substantial taking notwithstanding that the defendant did not reproduce the entire work.

Multichoice (Nig) Ltd v. MCSN Ltd/Gte (2020) 13 NWLR (Pt. 1742) 415 is the leading modern Nigerian decision on copyright infringement in the broadcasting context, establishing the scale of damages available, confirming the standing of an exclusive licensee to sue, and demonstrating how courts approach infringement claims where the defendant is a large commercial broadcaster rather than an individual pirate.

Footnotes

¹ Section 36(1), Copyright Act 2022; LawGlobal Hub, ‘Section 36 Nigerian Copyright Act 2022’ (2024), providing the full text of the provision.

² Section 36(2), Copyright Act 2022.

³ Mondaq, ‘Copyright Comparative Guide: Nigeria’ (2025), noting that infringement may occur without intention, as knowledge is not a requirement for primary infringement but is relevant to secondary infringement.

⁴ Section 43, Copyright Act 2022.

⁵ Section 37(1), Copyright Act 2022.

⁶ Section 37(2), Copyright Act 2022.

⁷ CBS Inc. and Others v. Intermagnetic Co. Ltd and Another (1977-1989) 2 IPLR 355; IPOsgoode, ‘Copyright Infringement and Remedies in Nigeria’ (2022), discussing the causal connection requirement.

⁸ Banwo & Ighodalo, ‘Copycat or Coincidence: Establishing Copyright Infringement in Similar Literary Works’ Lexology (2020), confirming that substantiality refers to quality and significance, not quantity.

⁹ Okilo v. Dick France and Another (2003-2007) 5 IPLR 243; IPOsgoode (n 7).

¹⁰ Banwo & Ighodalo (n 8), citing an example of a 20-second portion of a 4-minute musical used in a news broadcast being found to be a substantial taking.

¹¹ Section 45, Copyright Act 2022; Mondaq (n 3), summarising secondary infringement and the knowledge requirement.

¹² Part VII, Copyright Act 2022; Mondaq (n 3), describing the safe harbour conditions for online service providers.

¹³ Section 37(3), Copyright Act 2022.

¹⁴ Section 36(5), Constitution of the Federal Republic of Nigeria 1999.