Section 28 of the Copyright and Neighbouring Rights Act 2000 makes serious commercial infringement a crime.
Section 28(1) — the offence
A person who infringes a right protected under this Act, if done wilfully or by gross negligence and for profit-making purposes, is guilty of an offence.
Penalty: imprisonment for a term not exceeding ten years, or a fine not exceeding K100,000.00, or both.
Wilfully or by gross negligence. Ordinary infringement is not an offence. The prosecution must prove either wilfulness — deliberate infringement — or gross negligence, which is more than carelessness: a serious disregard of an obvious risk.
And for profit-making purposes. This is a separate, cumulative requirement. Infringement that is deliberate but not commercial — copying for a friend, for a community group, out of enthusiasm — is a civil wrong under section 27 but not an offence under section 28.
The combination targets commercial piracy: the manufacture and sale of unauthorised copies, the operation of infringing distribution services, and dealing in decoders and circumvention devices.
The offence is not confined to copyright. It covers the moral rights in section 7, and the neighbouring rights of performers, producers and broadcasters in sections 21, 22 and 24.
It also covers the wrongs in section 29, because section 29(2) provides that any illicit act referred to in section 29(1) shall be treated as an infringement of copyright or neighbouring rights to which the civil remedies and criminal sanctions provided for in sections 26, 27 and 28 are applicable.
So manufacturing or importing circumvention devices or unauthorised decoders for sale, or stripping electronic rights management information, can be prosecuted under section 28 where done wilfully or by gross negligence for profit.
The penalty in context
| Provision | Consequence |
|---|---|
| Section 28(1) — wilful or grossly negligent infringement for profit | Up to 10 years’ imprisonment, or a fine up to K100,000, or both |
| Section 27(8) — continuing to infringe in breach of a cease order | Fine up to K100,000, in addition to any other penalty |
| Section 31 — using an expression of folklore without the competent authority’s consent | An offence, and liability to the competent authority for damages, injunctions and any other remedies the Court thinks fit |
| Section 26 — conservatory measures | Available under the Court’s civil and criminal jurisdiction |
It places commercial copyright piracy among the more seriously punished economic offences. For comparison, the most severe penalty tier in the Companies Act 1997 — used for false statements and fraudulent trading — is a fine of K200,000 or five years’ imprisonment, or both.
Note that the section states a single penalty for the offence, without tiers. The Court’s discretion in sentencing does the calibrating.
Section 28(2) — civil measures in criminal proceedings
The Court may apply the measures and remedies referred to in sections 31 and 32 in any criminal proceedings under subsection (1), provided that no decision has yet been taken on such remedies in a civil proceeding.
The reference to “sections 31 and 32” sits oddly with the rest of the Act: section 31 deals with infringement of folklore and section 32 with international treaties. Read in context — and consistently with section 26(1), which confers the conservatory powers under the Court’s civil and criminal jurisdiction, and with section 29(2), which makes the remedies in sections 26, 27 and 28 applicable together — the evident intention is that the measures and remedies in sections 26 and 27 may be applied in a prosecution.
The practical effect is that a criminal court dealing with a piracy prosecution may also order injunctions, impounding, destruction of infringing copies, and destruction or surrender of implements, rather than leaving the right holder to bring separate civil proceedings.
The proviso prevents double relief. The measures may be applied only where no decision has yet been taken on such remedies in a civil proceeding. A right holder who has already obtained civil orders cannot have them made again in the prosecution.
Practical points
- For right holders. Most infringement is dealt with civilly. Section 28 matters where the infringer is a commercial operation — a manufacturer of unauthorised copies, a seller of pirated discs, a supplier of unauthorised decoders. Evidence of scale and profit is what moves a matter from section 27 to section 28, which is why the section 26(1)(c) power to impound documents, accounts and business papers is so valuable.
- For businesses. The combination of “gross negligence” and “for profit-making purposes” means a commercial user cannot rely on not having checked. Where material is used in a business — music in a venue, images in advertising, software across an organisation — the prudent course is a written licence complying with section 20.
- For anyone accused. The defence usually lies in the elements: was the act within a free use in sections 8 to 16, or within the section 25 limits; was it wilful or grossly negligent; and was it for profit-making purposes? All three must be established.
- Search and seizure. Under section 26(2) the search and seizure provisions of the Criminal Code Act (Chapter 262) apply to infringements under this Act, and under section 26(3) the customs provisions on illegal goods apply to articles and implements used in infringement.
Sources
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.