Microsoft Corporation  v Franike Associates Ltd – An Error Reaffirmed on Appeal.

                                       - Olumide Ekisola

The afternoon was sunny and very bright when the chamber’s litigation clerk brought into my office about two or three copies of the “latest“  law reports. As I usually do, I scanned the covers of the law reports to see if anything interesting was reported and my eyes immediately fixed on “COPYRIGHT”. My interest was kindled right away  as I have always had a bias for this area of law coupled with the fact that there are quite a number of cases that the chambers is handling in that area of law. I availed myself the opportunity provided and quickly read the case report up. When I was done I had this uneasiness in me, something about this decision does not seem right.  I straightaway called upon some of my colleagues with biases for this area of law. We all seem to agree that something was amiss. Then commenced my curiosity.  The effect of this decision was aptly described in Businessday Law pages of Thursday 14th June 2012 Edition where the caption was: the Copyright Act : A Threat to Foreign Investment ? Let me say here now that the Act is not a threat but the Court’s interpretation and decision may however be. 

Before I go ahead let me quickly give a factual and historical background to the matter in the said case. The Appellant instituted an action at the Federal High Court Lagos claiming that the Respondent was  infringing on her copyright in her software particularly “WINDOWS”  operating system for personal computers. The Appellant filed for and obtained an ex-parte injunction. The Respondent subsequently filed a Motion on Notice challenging the court’s jurisdiction and seeking an order vacating the earlier ex -parte order granted to the Appellant. . The ground of the Respondent’s application was that the program having being registered and emanating from the United States Of America can only enjoy reciprocal protection in Nigeria if there had been a Gazette issued by A Minister permitting such reciprocal  protection . It was further contended that such Gazette not having been pleaded by the Appellant denies the Court of its jurisdiction  since the Jurisdiction of the Federal High Court is limited to Copyright established pursuant to a Federal enactment. The Copyright being sought to be protected here not having been such established by a Nigerian Enactment (Federal ) but a foreign  law  could not enjoy protection from the court , more particularly  that the Appellant has not showed such foreign copyright  to be a subject of a Federal Gazette issued by the relevant Minister enjoining reciprocal protection  .  The position of the Respondent was upheld both in the Court of first instance and the Court of Appeal.

The positions of the Federal High Court and the Court of Appeal were what agitated my mind.  The agitation becomes obvious when one considers the ramification of the decisions. Copyright protects all works of art be it music, literary, audiovisual and so on. The meaning of these decisions is that all foreign works (especially) those from the USA are not protected in Nigeria. This raised a red flag in my consciousness.  Will the USA and other   countries have agreed to this arrangement? Will these Countries have agreed and kept silent on the matter and allowed their works to be infringed with impunity. Knowing what premium these countries place on innovation and art, my mind was always of the view that this position cannot be and these countries will not agitate to  have the right thing done?. After much rumination I submit   that the position of the Courts both in the first instance and on Appeal is not representative of the statutory law in Nigeria.  I am fortified in my view by the provisions of   S: 52(3) of the Copyright Act, Laws of the Federation of Nigeria 2004 and also of S: 3 (3) of the Fifth Schedule of the same Act . The Sections of the law talk of Repeals and Transitional, etc , Provisions and states that  

           “The Transitional and Savings Provisions of The Fifth Schedule to this Act  shall have effect notwithstanding subsection (1) of this section and any other Provisions of this Act”

The Fifth Schedule in its S: 3(3) goes further to say

        “any subsidiary legislation made under the Repealed Act which was in force immediately before the commencement of this Act , shall remain in force , subject to any necessary modifications , as if it had been made under this Act and may be added to , amended, revoked or varied accordingly “

As innocuous as the above provisions of The Copyright Act are, therein lies the solution to the otherwise inconvenient situation we would have found ourselves going by the decisions of the courts in this case.  In 1972 the then Federal Commissioner for Trade (who was the supervising Minister over Copyright Matters ) had  by a Copyright (Reciprocal Extension ) Order of 1972 listed 57 Countries whose Citizens or works should  enjoy reciprocal  Copyright Protection In Nigeria.  It is gratifying to note that the United State of America is listed in that Order. The effect of the Order and the above cited provisions of the Copyright Act 2004 is that Microsoft   the Appellant in this case has and had always had reciprocal protection of her Copyright in Nigeria. It is important to note that the Order of 1972 was not cited to the Courts by either counsel in these instances. We submit that the position that such Order or gazette not being pleaded robbed the court of its jurisdiction cannot be tenable as no one by the rules of Pleadings is always expected to plead the law. We are of the view that the Courts are expected to take judicial notice of all the Laws in Nigeria and as such we only as advocates are expected to nudge the memory of the court in respect of the laws of the land. Thus it was not necessary that the said Order be pleaded, if the order had been brought to the Courts’ attention we are sure the decisions both at the first instance and on Appeal would not have gone the way they went.  We only hope that the matter has gone to the Supreme Court so this inconvenience created by the decisions of the two lower courts will be remedied. 

To recapitulate, we submit that the works of Microsoft and her compatriots are protected in Nigeria by virtue of the Copyright (Reciprocal Extension) Order of 1972 made pursuant to The Copyright Act of 1970 .