INTELLECTUAL PROPERTY
COPYRIGHTS
INTRODUCTION
Intellectual Property simply means the legal rights which may be asserted in
respect of the product of the human intellect. It is a private property right which
protects the creation of the human mind and human intellect. These legal rights
are infringed upon when the same rights granted to the right holder are exploited
by a third party without the owner’s consent or permission. Therefore, like every
other legal property rights, the infringements on intellectual property rights are
enforceable in a court of law as well as other procedures. There are several
enforcement mechanisms a right holder can employ in enforcing his rights.
The society keeps evolving and the changing dynamics provides novel areas.
Technology provides a massive spring board for those with ideas. Several years
back, the available professions were law practice, medical practice, engineering
and the like. Today, people make a lot of money from Content creating, Social
media influencing and the like. Some years back, one cannot make an
educational video or lecture or grant an interview without the help of the TV
stations, but today the reverse is the case with the availability of phones and
the internet.
Intellectual Property provides the right protection for these intellectual
inventions/creations.
COPYRIGHT
“Copyright” literally means the right to copy. Copyright is a form of protection
given to the authors of “original works of authorship,” including literary,
dramatic, musical, artistic, and certain other works. This protection is available
“automatically” to both published and unpublished works.
Copyright is simply the exclusive right granted to an originator of creative work
to reproduce the work for a limited period. The Copyright Act seeks to protect
the creative works of authors, artistic works, songwriters, music publishers,
cinematograph films, photographers, and all round creative works.
Copyright is a class of intellectual property rights which protects literary,
musical and artistic works. These include writings, music, works of fine art
and computer programs. Copyright protection grants the author of such works
exclusive control over the distribution, publication, reproduction or adaptation
of the work within the territory. Not all works can be copyrighted.
HISTORICAL DEVELOPMENT OF COPYRIGHT
Nigeria being a former colony of Britain, owes the origin of most of its laws to
Britain. Consequently, Copyright in Nigeria owes its existence and evolution to
the English Laws.
The first true Copyright law was called the Statute of Anne and was enacted in
1709. This Law gave birth to the English Copyright Act of 1911 which was
extended to apply to the Protectorates of Northern and Southern Nigeria in 1912.
Copyright law developed in England because there was a need to regulate the
publishing of literary works, occasioned by the invention of printing technology
in the Second half of the Fifteenth century. This technology made it possible to
have literary works produced in multiple copies, faster and cheaply done.
As is the practice, the Publisher (called Stationers then) would acquire the
manuscripts of literary works from the Authors, then invest in the printing and
selling of the published works. These Stationers then lobbied the Crown (British
Monarchy) demanding for some form of regulation so that others will not print
the same literary works to the detriment of the Stationer who has the authority
of the Author. The Crown readily granted the request for regulation since the
Crown was also concerned about preventing the publication of heretical
materials for political and religious appropriateness. The Crown therefore
granted the Charter to the Stationers Company in 1556, making it unlawful to
engage in the act of publishing without a licence. Subsequently, the Statute of
Anne was promulgated. By the Statute of Anne, Authors and their assignees are
granted the Sole Right to print books for a term of 14 years, and at the end of
the 14 years, if the Author was still alive, he was entitled to a second term of 14
years.
The British Copyright Law thereafter further progressively evolved to extend the
duration of the protection and further widened the scope beyond literary works
to accommodate other types of work, including artistic, musical and dramatic
works, and sound recordings. These changes were incorporated into the
Copyright Act of 1911, which harmonized the laws dealing with other aspects of
copyright.
The British Copyright Act of 1911 was replaced by the first indigenous Copyright
Law in 1970. In 1970, the Copyright Decree (No. 61) of 1970 was promulgated
and remained in force until repealed by the Copyright Act of 1988 with an
amendment by the Copyright (Amendment) Act No. 98 of 1992 and subsequent
amendment by the Copyright (Amendment) Act No. 42 of 1999. Thus the extant
Copyright Act is the Copyright Act of 1988 with the attendant amendments.
WORK ELIGIBLE FOR COPYRIGHT
For a work to be protected under the Nigerian Copyright Act, there are a number
of legal requirements that must be satisfied in order for such work to be eligible
for protection. A literary works obtains copyright protection from the moment
of its creation, provided it meets the conditions for eligibility.
In order for a Work to be eligible for Protection, that work must fall within the
scope of subject-matters specified under Section 1 of the Copyright Act.
Section 1 of the Copyrights Act 1988 provides thus:
Subject to this section, the following shall be eligible for copyright(a) literary works;
(b) musical works;
(c) artistic works;
(d) cinematograph films;
(e) sound recordings; and
(f) broadcasts.
The first three types of work falls under the Creative Works Classification. These
Creative Works apart from being a type within the First Three categories of
protected works, must also fulfill the requirements of ORIGINALITY AND
FIXATION.
Section 1(2) of the Copyright Act provides thus:
“A literary, musical or artistic work shall not be eligible for copyright unless- (a)
sufficient effort has been expended on making the work to give it an original
character; (b) the work has been fixed in any definite medium of expression now
known or later to be developed, from which it can be perceived, reproduced or
otherwise communicated either directly or with the aid of any machine or device.”
Thus the Work must also be expressed or fixed in a definite medium. This
means that an idea, a plot or storyline in one’s mind is not eligible for copyright
protection. Simply put, it is the expression of the idea that is protected.
On the other hand, for a work to enjoy copyright protection in Nigeria, the work
must have the requisite connection to Nigeria.
Section 2 of the Copyright Act provides as follows
(1) Copyright shall be conferred by this section on every work eligible for
copyright of which the author or, in the case of a work of joint authorship,
any of the authors is at the time when the work is made, a qualified person,
that is to say- (i) an individual who is a citizen of, or is domiciled in Nigeria;
or (ii) a body corporate incorporated by or under the laws of Nigeria.
Registration is not a pre-condition for copyright protection under Nigerian Law.
However, the Nigerian Copyright Commission operates a voluntary copyright
notification scheme, by which authors can ‘notify’ the commission and general
public of their copyright in a work. This is beneficial where a person needs to
prove their copyright ownership
Literary Works
For the purpose of copyright, the term “literary works” is not confined to works
of literature in the commonly understood sense, but is taken to include all works
expressed in writing, regardless of whether they have literary merit or not. Thus,
literary work is defined as works, other than audiovisual works, expressed in
words, numbers, or other verbal or numerical symbols or indicia, regardless of
the nature of the material objects, such as books, periodicals, manuscripts,
phonorecords, film, tapes, disks, or cards, in which they are embodied. For
example, computer databases and computer programs are considered to be
“literary work” to the extent that they reflect the programmer’s expression of
original ideas. Computer software is also considered a “literary work” and is thus
given all of the protections of the copyright law.
The Copyright Act of 1988 did not define what a literary work is. The Act rather
provides a descriptive, non exhaustive list of works that fall within the scope of
literary works.
Section 51 of the Copyright Act states thus …. "literary work" includes,
irrespective of literary quality, any of the following works or works similar
thereto- (a) novels, stories and poetical works; (b) plays, stage directions, film
scenarios and broadcasting scripts; (c) choreographic works; (d) computer
programmes; (e) text-books, treatises, histories, biographies, essays and articles;
(f) encyclopaedias, dictionaries, directories and anthologies; (g) letters, reports
and memoranda; (h) lectures, addresses and sermons; (i) law reports, excluding
decisions of courts; (j) written tables or compilations.”
It must be pointed out that the list is not exhaustive and may be extended to
cover other works.
In the case of University of London Press vs. University Tutorial Press (1916) 2
Ch 601 @ 608, literary work was defined as covering a work which is expressed
in print or in writing. In HOLLINRAKE VS. TRUSWELL (1894) Davey J, defined
literary work as any work attempting to offer information, instruction or
pleasure, for literary enjoyment.
Musical Works
This refers to any musical composition, irrespective of musical quality, and
include works composed for musical accompaniment. See Sec.51 Copyrights Act.
The Copyrights under the Nigerian law also protects the combination of sounds
that make up the music as well as the Works such as the lyrics of the song,
which accompany the musical composition. As is applicable in literary works, a
musical work irrespective of the quality is protectable. Thus even an unpleasant
composition with great nuisance value is protectable.
Artistic Work
Section 51 of the Copyrights Act defines artistic work to include: “irrespective
of artistic quality, any of the following works or works similar thereto- (a)
paintings, drawings, etchings, lithographs, woodcuts, engravings and prints; (b)
maps, plans and diagrams; (c) works of sculpture; (d) photographs not comprised
in a cinematograph film; (e) works of architecture in the form of buildings models;
and (f) works of artistic craftsmanship and also (subject to subsection (3) of
section 1 of this Act) pictorial woven tissues and articles of applied handicraft
and industrial art.”
Note again that irrespective of the artistic quality, the work is protectable.
However we must note that by virtue of Section 1(3) of the Act, artistic work
which at the time of its making, was intended by the author to be used as a
model or pattern to be multiplied by any industrial process, shall not be eligible
for copyright protection as they fall within the category of works protected by the
law of industrial design. (Industrial design is a process of design applied
to products that are to be manufactured by mass production. It is the creative
act of determining and defining a product's form and features, which takes place
in advance of the making of a product. In contrast, manufacture consists purely
of repeated, often automated, replication. This distinguishes industrial design
from craft-based design, where the form of the product is determined by the
product's creator largely concurrent with the act of its creation) All manufactured
products are the result of a design process, but the nature of this process can
take many forms. It can be conducted by an individual or a team, and such a
team could include people with varied expertise (e.g. industrial designers,
engineers, business experts, etc.). It can emphasize intuitive creativity or
calculated scientific decision-making, and often emphasizes both.
Cinematograph Films
Section 51 of the Copyrights Act defines Cinematograph Films to include: “the
first fixation of a sequence of visual images capable of being shown as a moving
picture and of being the subject of reproduction, and includes the recording of a
sound track associated with the cinematograph film”.
This definition is flexible to accommodate a wide range of visual images fixed in
different media such as USB, CDs, DVDs, and other media systems whether
analog or digital, provided such visual images are capable of being shown as
moving pictures and of being reproduced. The definition is broad enough to cover
both old and modern techniques of fixation, and fixation in different media. It
also provides protection for modern forms of interactive works such as video
games since these games also involve fixation of images created or fixed by way
of appropriately written computer programmes.
It must be pointed out that although sound recordings has its own protection,
but where the sound track is associated with cinematograph film, it is protected
under this category and not as a sound recording.
Sound Recordings
Section 51 of the Copyright Act states defines sound recording as the first fixation
of a sequence of sound capable of being perceived aurally and of being reproduced,
but does not include a soundtrack associated with a cinematograph film.
Sound recordings must not be music. The Act protects the fixation of “Sound”.
For example, the fixation of recitation of a book, poem or any other kind of sound
is protected. Furthermore, the protection is not technologically restricted.
Broadcast
Section 51 of the Copyright Act defines broadcast as sound or television
broadcast by wireless telegraph or wire or both, or by satellite or cable
programmes and includes re-broadcast.
From the above definition, Sound (radio) and audio-visual (Television) using
different technological media such as wire or wireless telegraphy (like Internet
Radios) are covered and protectable.
NATURE AND EFFECT OF COPYRIGHT PROTECTION
Copyright laws are made to promote public welfare through the advancement of
knowledge with the specific intent of encouraging the production and
distribution of new works for the benefit of the public. It provides incentive for
creators by granting them exclusive rights to reproduce and distribute their
works. Copyright is not intended to inhibit free flow of information and ideas.
See the case of GEROV. SEVEN-UP COMPANY 535 F.SUPP 212, 215 USPQ 512
where the United States District Court observed that the goal of copyright
protection is to encourage dissemination of ideas by protecting the embodiment
or expression of an idea in a creative work and reserving the right in it to the
creator of the work. What is being advanced here is the optimization of the
economic benefit of copyright without prejudicing the owner’s proprietary
interest in his work, because the owner of the work expended labour and skill in
the creation.
Requirements for the subsistence of copyright
Once it is ascertained that the work in question falls under any of the abovementioned category of works eligible for copyright protection, the next step is to
ascertain that the work fulfils the requirements as stipulated by the Copyright
Act, which qualifies it for protection. With regards to literary, musical and artistic
work, the Act provides protection where such work first satisfies the requirement
of originality and fixation. See Section 1(2) of the Act.
i. Originality
It implies that sufficient effort has been expended while making the work, in
order to give the work an original character. Section 1(2) of the Copyright Act
provides thus “A literary, musical or artistic work shall not be eligible for
copyright unless- (a) sufficient effort has been expended on making the work to
give it an original character”. See the case of OFFREY v. CHIEF S.O. OLA & ORS
(unreported) Suit No. HOS/23/68.
The Copyright law stipulates that for a literary, musical or artistic work to be
copyrightable, it must be shown to be the product of the authors mind. The
supposed author cannot merely append his name to what would otherwise pass
as common property in order to gain exclusivity.
Originality in this context does not mean newness or novelty, in the sense of
such work not having been in existence before. It was held in UNIVERSITY OF
LONDON PRESS VS. UNIVERSITY TUTORIAL PRESS (1916) 2Ch 601, that the
word “original” does not in this contention mean that the work must be the
expression of original or inventive thought. Copyright Acts are not concerned
with the originality of ideas but with the expression of thought….. The Act does
not require that the expression must be in original or novel form, but that the
work must not be copied from another work but it should originate from the
author. See also LADBROKE (FOOTBALL) LTD VS. WILLIAM HILL (FOOTBALL)
LTD (1964) 1 WLR 273….. where it was held that originality simply connotes that
the work should not be copied but should originate from the author. The court
went on to state that originality requires that the form or expression of work
must have been the result of the author’s intellectual creation, the outcome of
the expenditure of independent skill, labour or judgement in the creation of the
work.
From the above case, it can be stated that the major elements that must be relied
upon in accessing originality are a. Considerable Skill b. Labour and c.
Judgement ….expended by the author of the work.
It must be pointed out that there are no defined rules regarding the exact
quantum of efforts or labour required, as this is a question of fact and degree
which is dependent on the circumstances of each case.
While analyzing the amount of skill, efforts or labour expednded in coming up
with a work, it is obvious that where a work is created from scratch, without any
recourse to pre-existing data or resources, the work will be deemed as highly
original.
However in practical terms, most works are drawn or inspired from existing stock
of knowledge which exist in public domain, which may be relied upon as building
blocks for the creation of a new work.
In UNIVERSITY OF LONDON PRESS VS. UNIVERSITY TUTORIAL PRESS (1916)
2Ch 601, the University of London had assigned the Defendants the copyright to
examination questions. The Defendant however, published some of their papers,
with their criticisms and model answers, without authorization. The defence of
the Defendant was that the Plaintiffs drew from the stock of knowledge common
to mathematicians while the Plaintiffs proved that they thought out the
mathematical questions which they set, drawn from notes and memoranda
which they made. The court rejected the argument of the defendants and held
that restricting scholars from drawing on the stock of knowledge common to the
field would result in a situation where only historians who unearth fresh
historical facts would be entitled to copyright of their work. The court held that
the questions were original literary works in which copyright subsisted.
The degree of effort/labour required to be expended on a work in order to give it
original character need not be overwhelmingly sufficient in the true sense of the
word. The Court in University of London (supra) observed that the experts who
have complete mastery of a subject are more likely to spend less time and effort
with meaningful outcomes unlike amateurs.
With regard to compilations and other collective works drawing on existing
works, the effort, judgement and skill that go into the selection and arrangement
of the compilation have been held to be sufficient to confer originality on the
resulting work. In EXPRESS NEWSPAPERS PLC VS. NEWS (UK) LTD (1990)
F.S.R 359, it was held that a work comprising selections of quotations from an
interview was held to be an original copyright work involving the exercise of
judgement and discretion in the selection and arrangement of quotations.
For compilations and other forms of collective works, originality therefore
consists of the skill and labour involved in selecting and arranging existing
subject-matter to give rise to a new work. Thus the person responsible for the
compilation of the collective work has the copyright in the work compiled, while
the author(s) of the underlying materials which form components of the work
also have separate copyright in their material. However where such material
lacks originality, by reason of its consisting of wholly factual information such
as historical or scientific facts and news, these belong in the public domain and
may be used by others.
Copyright can therefore not be conferred on a work that in itself leaves no room
for skill, labour, taste or judgement. See CRAMP VS. SMYTHSON (1944) AC. 329
In I.C.I.C (DIRECTORY PUBLISHERS) LTD VS. EKKO DELTA NIG LTD & ANOR
(1977) 3 FHCR 349 the court held that the copyist will not enjoy copyright
protection because they were not the original author of the contents of the
directory since the contents were copied from documents of P&T and Federal
Ministry of Trade.
It must be noted that the quantum of skill, labour and judgement required to
warrant copyright protection is a matter of facts, to be decided on the merits of
each particular case.
Where a work is one which involves a change of medium, such as the translation
of a work into another language, this has also been held to satisfy the
requirement of originality, as it involves the exercise of skill, labour and
judgement. See BYRNE VS. STATIST CO (1914) 1 KB 622.
Where the work in respect of which copyright is claimed is one which is extremely
simplistic, commonplace or insubstantial, the court has declined to hold that
such work satisfies the originality requirement. In OFFREY V. CHIEF S.O. OLA
(unreported) Suit No. HOS/23/68 the court held that the drawing of several
vertical and horizontal lines in a school record book did not suffice to confer
originality on the work.
With regards to artistic works, the principles regarding originality also applies.
In PETER OBE VS. GRAPEVINE COMMUNICATIONS LTD (2003-2007) 5 I.P.L.R
354 a professional photographer was held to have copyright in photographic
works, consisting of photographs taken by him during the civil war.
Other artistic works such as drawings, maps, sculpture and other two
dimensional works also qualify for protection, provided they have resulted from
the effort, labour or skill of the author. As in literary works, the level of skill,
labour or effort expended to make such work an original work and subject of
copyright protection is a question of the degree and dependent on the facts of
each case.
In KENRICK V. LAWRENCE (1890) 25 QBD 99, the Court was asked to determine
whether a simple drawing of a hand pointing to a square on a voting paper to be
used by illiterates in an election, was copyrightable. The Court held that there
was nothing original in such drawing.
Note that other principles governing originality in literary works also applies to
artistic works.
Originality in the context of musical work refers to effort, labour or skill expended
in creating musical composition which includes works composed for musical
accompaniment. The effort expended creating the musical work from nothing
qualifies the work for protection and falls within the context of originality.
On the other hand, where the creator relies on pre-existing work, the use of the
pre-existing work must be with the consent of the copyright owner, otherwise
the copyright of the owner of the pre-existing work is infringed. This is because
copyright in a work includes the exclusive rights to make an adaptation of the
work. This is applicable where the new lyrics are fused with pre-existing lyrics
or where the music is modified or altered. The author of the new work is entitled
to the protection of the new work where it is shown that substantial effort, labour
or skill was expended to qualify the work as an original work.
Note that By Section 1(4) A work shall not be ineligible for copyright by reason
only that the making of the work or the doing of any act in relation to the work
involved an infringement of copyright in some other work. According to A.
Oyewunmi, The effect of the Section 1(4) of the Act is to protect a work regardless
of the fact that it made use of pre-existing work, provided that the subsequent
work qualifies for protection with regards to creative input of effort, labour, skill,
fixation and other requirements. E.G unauthorized translation. This however
does not excuse plagiarism.
ii. Fixation
In addition to the criteria for originality, by virtue of section 1(2)(b), the work has
to be fixed in any definite medium of expression now known or later to be
developed, from which it can be perceived, reproduced or otherwise
communicated either directly or with the aid of any machine or device.
Fixation is the act of rendering a creation in some tangible form in which or by
means other people can perceive it. For copyright to subsist in any literary,
musical or artistic work, such work must be fixed in any definite medium of
expression now known or later to be developed, from which it can be perceived,
reproduced or otherwise communicated either directly or with the aid of any
machine or device.
Fixation is what distinguishes a work from an idea. A work is protectable while
an idea is not. The copyrightablilty comes into play the moment is fixed. In order
for a work to be protected it must take a material form which may be written or
printed, or recorded or in any other medium provided the medium provides the
opportunity to perceive the information. See the Case of YENI ANIKULAPO KUTI
& ORS vs. T.M. ISELI & ORS (2003-2005) 5 I.P.L.R 53
In DONOGHUE VS. ALLIED NEWSPAPER LTD Farwell J Stated thus ‘If the idea,
however original, is nothing more than an idea, and is not put into any form of
words, or any form of expression such as a picture, then there is no such thing
as copyright at all
Fixation takes place where it is carried out by the author or by someone acting
under the authority of the author or where the work is fixed independent of the
author’s direction. E.g an unauthorized recording of an extempore musical
rendition, or lecture, or Sermon (most Pastors don’t even write down their
messages).
Other Qualifying factors
Note that the criteria for Originality and Fixation must be present to protect
Literary, Artistic and Musical Works (i.e Creative Works).
For Cinematograph Films, Sound Recordings and Broadcast, the under listed
criteria (other qualifying factors) are required to be present in order for the work
to be eligible for Copyright Protection. Thus, for Literary, Artistic and Musical
Works, Originality and Fixation must be present, in addition to the under listed
criteria (other qualifying factors). The under listed qualifying factors are:
i. Status of the Author
This can also be referred to as copyright by virtue of Nationality or
Domicile. A work is qualified for copyright protection in Nigeria If the
author of the work, or in case of a work of joint authorship, any of the
authors as at the date the work is made, is an individual who is citizen of
or domiciled in Nigeria. Section 2(1) of the Copyright Act provides thus: (1)
Copyright shall be conferred by this section on every work eligible for
copyright of which the author or, in the case of a work of joint authorship,
any of the authors is at the time when the work is made, a qualified person,
that is to say- (i) an individual who is a citizen of, or is domiciled in Nigeria;
or (ii) a body corporate incorporated by or under the laws of Nigeria. See
section 25-27 of the 1999 Constitution of the Federal Republic of Nigeria.
ii.
Thus a citizen of Nigeria need not be resident in Nigeria at the time of the
making of the work, for the work to enjoy copyright protection.
Nigerian citizenship may be acquired by birth or naturalization or
registration.
On the other hand, an individual who is domiciled in Nigeria whether or
not a citizen is entitled to copyright protection. Domicile means a place
where a person is physically present and is deemed to have his permanent
home.
Under this, there are two elements to make one domiciled in a place….First
there must be a fixed or permanent home, Secondly, the person must have
the intentions to remain their permanently.
In the case of a body corporate, its work is protected were the body
corporate is established under the laws of Nigeria
Place of first Publication
This can also be referred to as copyright by reference to country of origin.
Another basis for qualification for copyright protection is stipulated under
Section 3 (1) of the Copyrights Act. It provides thus …….. (1) Copyright
shall be conferred by this section on every work, other than a broadcast,
which is eligible for copyright and which- (a) being a literary, musical or
artistic work or a cinematograph film, is first published in Nigeria; or (b)
being a sound recording, is made in Nigeria, and which has not been the
subject of copyright conferred by section 2 of this Act.
From the foregoing provision of the Act, literary, musical, artistic work,
cinematograph film will be ineligible for copyright protection where it is
published in another country apart from Nigeria and then subsequently
published in Nigeria. However such a previously published work in
another country shall be treated as having been published in Nigeria if the
two publications took place within a period of not more than 30 days.
Qualification for protection on the basis of first publication only becomes
relevant where the work has not been subject to qualification under
section 2 i.e where the author is a citizen of Nigeria or domiciled in Nigeria.
Note that by Section 3, Broadcasts are excluded from qualifying for
protection under this criteria.
A work is deemed published if copies of the work have been made available
in a manner sufficient to render the work accessible to the public.
The provisions of Section 3(1) applies to published works, such that
unpublished works would have to depend on the qualification as provided
by section 2(1) to secure protection for such works.
iii.
Copyright by reference to international agreements
The third other basis for qualification is by reference to international
agreements. Nigeria is a party to a number of international treaties and is
obligated to extend reciprocal protection to citizens of members countries
that are parties to the treaty, as a fulfilment of Nigeria’s obligation under
the various international treaties.
Section 5(1)(a) provides that (1) Copyright shall be conferred by this section
on every work if- (a) on the date of its first publication at least one of the
authors is- (i) a citizen of or domiciled in; or (ii) a body corporate
established by or under the laws of, a country that is a party to an
obligation in a treaty or other international agreement to which Nigeria is
a party.
Thus, protection is accorded to works that are first published in a country
which is a party to an obligation in a treaty or other international
agreement to which Nigeria is a party.
Section 41 of the Act further provide thus “Where any country is a party to
a treaty or other international agreement to which Nigeria is also a party
and the Minister is satisfied that the country in question provides for
protection of copyright in works which are protected under this Act, the
Minister may by order in the Federal Gazette extend the application of this
Act in respect of any or all of the works referred to in subsection (1) of section
1 of this Act to- (a) individuals who are citizens of or domiciled in that
country; (b) bodies corporate established by or under the law of that country;
(c) works, other than sound recordings and broadcasts, first published in
that country; and (d) broadcast and sound recordings made in that country.
Also works first published- (i) in a country which is a party to an obligation
in a treaty or other international agreement to which Nigeria is party; (ii)
by the United Nations or any of its specialized agencies; or (iii) by the
Organisation of African Unity; or (iv) by the Economic Community of West
African States… enjoy copyright protection under the Act. See Section 5(b)
Copyright Act.
Examples of such treaties include:
The Convention Establishing the World Intellectual Property Organisation,
Berne Convention for the Protection of Literary and Artistic Works, the
Rome Convention for the Protection of Performers, Phonogram Producers
and Broadcasting Organisations, and TRIPS Agreement - The Agreement
on Trade-Related Aspects of Intellectual Property Rights.
iv.
Copyright by relationship of the work to Government or Institutional
Framework.
The Fourth other qualification for copyright protection is that the work is
made by or under the direction or control of the Government. Section 4 of
the Act provides thus (1) Copyright shall be conferred by this section on
every work which is eligible for copyright and is made by or under the
direction or control of the Government, a State authority or a prescribed
International body.
The term Government refers to the Federal Government while the term
State, refers to the State Government. In the case of an international body,
such body must be a prescribed one.
By the section 4, the work must fall under the category of works that are
eligible, and must satisfy the criteria of originality and fixation.
The work has to be made in the name of, or by an organ of the government
through its employees or third parties appointed for that purpose.
DURATION OF COPYRIGHT
Copyright does not subsist in perpetuity. The lifetime and protection given to
copyrighted materials are determined by the law and same ceases to operate by
effluxion of time. The duration of copyright protection are stipulated in the first
schedule of the Copyright Act and they vary on the type of work and whether the
authorship is ascertained, anonymous or pseudonymous.
Copyright in literary, musical or artistic works other than photographs subsists
for 70 years after the end of the year in which the author dies. Where there are
joint authors, the seventy years commences at the end of the year in which the
surviving author dies.
In the case of a body corporate or where the work is made by or under the
direction or control of the government or state authority or a prescribed
international body, copyright subsists for seventy years after the end of the year
in which the work was first published.
The period of seventy years is computed starting from the beginning of the year
immediately following that in which the death or publication was made.
Copyright in the case of anonymous or pseudonymous literary, musical or
artistic works subsists for seventy years after the end of the year in which the
work was first published.
However whenever the true identity of the author becomes known or where the
anonymity or pseudonym adopted by the author leaves no doubt as to his
identity, the term of protection shall be calculated from the year immediately
following the death of the author. It does not matter whether the author’s identity
became known during his lifetime or after his death.
For cinematograph films and photographs, copyright ceases to subsist on the
expiration of fifty years after the end of the year in which the work was first
published. See paragraph 2 of the first Schedule to the Act.
Copyright in sound recording ceases to subsist on the effluxion of fifty years after
the end of the year in which the recording was first made.
For Broadcasts, copyright ceases fifty years after the end of the year in which the
broadcast first took place.
On the expiration of copyright by effluxion of time, the work goes into public
domain and any person can copy, make use of, publish same without any
inhibitions. See ATLAS MFG CO VS. STREET & SMITH 204 Fed.R 398.
RIGHTS CONFERRED BY COPYRIGHT
The rights conferred by copyrights are a bundle of rights which can be divisible.
Copyright protection confers a number of economic and moral rights. Copyright
is defined in terms of the exclusive rights conferred on the author or other
copyright owners. The exact nature of the rights depends on the type of work
involved.
a. Nature of copyrights in Literary and Musical Works. For Literary and
Musicals works, Section 6(1) of the Act stipulates the rights accruing to
the copyright owner. Copyright protection for Literary and Musical works
authorizes the copyright owner to do of any of the following acts-
(i)
(ii)
(iii)
reproduce the work in any material form;
The right of reproduction means the making or of one or more copies
of a work. See Section 51 of the Act. In the case of OKILO VS. DICK
FRANCIS & ANOR (2003-2007) 5 I.P.L.R 243 the court held that the
defendant’s duplication of the plaintiff’s master tape was an
infringement on the exclusive reproduction rights of the Plaintiff. In
these days of digitalization, the electronic copy of a work will also
fall within the scope of the right of reproduction.
publish the work;
The right of Publication: This right refers to the first or original right
to issue the works to the public. In ADENUGA VS. ILESANMI PRESS
& SONS (NIG) LTD , it was held that a work is deemed to have been
published if copies of it have been made available in a manner which
is sufficient to render the work accessible to the public.
The fact that the copies were made available by way of sale, rental
or gift is immaterial provided copies have been made available in a
manner which is sufficient to render the work accessible to the
public. With the prevalence of the internet, the scope of publication
will be extended beyond printed or recorded copies, to making
available of the work through an electronic retrieval system.
perform the work in public;
Performing the Work in Public: The Act does not define public
performance, however looking at Section 26 (2) of the Act defines
performance as “(a) a dramatic performance (which includes dance
and mime); (b) a musical performance; and (c) a reading or recitation
of literary act or any similar presentation which is or so far as it is,
a live performance given by one or more individuals.”
Thus public delivery of literary works such as speeches, lectures or
sermons, public rendition of songs or poems are examples of public
presentations.
“Public” means outside the normal circle of family and
acquaintances while the term “Perform” include both live
performance and direct performance by means of electronic
broadcasting and similar processes.
In PRS VS HAWKTHORNS HOTEL (BOURNEMOUTH) LTD (1933)
CH. 855, a performance by an orchestral trio at an unlicensed
residential hotel for the entertainment of some guests and other two
persons was held to be a public performance
In PRS VS. CAMELO (1936) 3 ALL E.R 855, it was held that a
performance in a private room made audible in an adjoining public
restaurant was a public performance. So also was a performance at
a factory for the entertainment of the workers during working hours,
was a public performance.
It must be noted that what amounts to a public performance is a
question of fact to be determined by the peculiar circumstances of
the case.
(iv)
produce, reproduce, perform or publish any translation of the work;
Producing, reproducing, performing or publishing of any translation
of the work: Translation refers to the conversion of a work from one
language to another. The right of the copyright owner in a literary or
musical work does not end with the production, reproduction or
performance of the original work. The owner of the copyright also
has the exclusive right to control the production, performance,
reproduction or publishing of the translated version of the works.
(v)
make any cinematograph film or a record in respect of the work;
Making any cinematograph film or a record in respect of the work:
The right of fixation of a work into a sequence of sound images
capable of being shown as a moving picture is vested in the copyright
owner exclusively. Thus making a work into a film without
authorization violates the exclusive rights of the copyright owner.
(vi)
distribute to the public, for commercial purposes, copies of the work,
by way of rental, lease, hire, loan or similar arrangement;
Distribution to the public, for commercial purposes, copies of the
work, by way of rental, lease, hire, loan or similar arrangement: The
Copyright owner has the right to distribute to the public for
commercial purposes, copies of his work by way of rental, lease, hire,
loan or similar arrangement. It must be noted that while publication
entails the first or initial issuing of the work to the public,
distribution refers to subsequent acts through which the work is
circulated or dispersed to the public.
(vii) broadcast or communicate the work to the public by a loudspeaker or
any other similar device;
To broadcast or communicate the work to the public by a
loudspeaker or any other similar device: By Section 51
"communication to the public" includes, in addition to any live
performance or delivery, any mode of visual or acoustic
presentation, but does not include a broadcast or re-broadcast.
(viii) make any adaptation of the work
Making of any adaptation of the work: Section 51 states that
"adaptation" means the modification of pre-existing work from one
genre of work to another and consists in altering work within the
same genre to make it suitable for different conditions of exploitation,
and may also involve altering the composition of the work;”. Examples
(ix)
include the modification or alteration of a novel into a screen play
for a movie or vice versa (a lot of Shakespearean novels…. Things
fall apart etc), the translation of a work from one language to
another, converting a novel into pictorials such as cartoons.
do in relation to a translation or an adaptation of the work, any of the
acts specified in relation to the work in sub-paragraphs (i) to (vii) of
this paragraph;
b. Nature of copyrights in Artistic Works.
By virtue of Section 6 (b) of the Act, Copyright in Artistic work authorizes
the doing of any of the following acts, that is- (i) reproduce the work in any
material form; (ii) publish the work; (iii) include the work in any
cinematograph film; (iv) make any adaptation of the work; (v) do, in relation
to an adaptation of the work, any of the acts specified in relation to the
work in subparagraphs (i) to (iii) of this paragraph
Beyond verbatim copying however, the right to reproduce the work in any
material form extends to reproduction in other media.
Artistic works in Architecture however enjoy special protection under the
Act. Copyright subsists in Architectural plans and diagrams and such
copyright are distinct from the works of architecture in building models.
See MEIKLE & ORS VS. MAUFE & ORS (1941) 3 ALL E.R 144. Infact by
Section 6 (3) of the Act, Copyright in a work of architecture shall also
include the exclusive right to control the erection of any building which
reproduces the whole or a substantial part of the work either in its original
form or any form recognizably derived from the original, but not the right
to control the reconstruction in the same style as the original of a building
to which the copyright relates.
Thus when an Architect prepares a building plan at the request of a client,
the copyright remains with the Architect. What the client obtains is the
right to construct his house in accordance with the plan and neither the
client nor the builder can reproduce that plan or any substantial part
thereof except with the express or implied license of the architect. See
BLAIR VS OSBORNE & TOMSSINS (1971) 2 Q.B. 196.
c. Nature of Copyright in Cinematograph Films:
The copyright owner in a cinematograph film is authorized to “
(i)
make a copy of the film;
(ii)
cause the film, in so far as it consists of visual images, to be seen
in public and, in so far as it consists of sounds, to be heard in
public;
(iii)
(iv)
make any record embodying the recording in any part of the
soundtrack associated with the film by utilising such soundtrack;
(iv) distribute to the public, for commercial purposes, copies of the
work, by way of rental, lease, hire, loan or similar arrangement.” See
Section 6(1)(c) of the Copyright Act.
Reproduction in relation to cinematograph films encompasses the making
of copies of the film, in the existing format or in other formats. Also
projecting the film to the public through Movie Houses, TV or other
medium also falls within the exclusive preserve of the copyright owner.
Consequently, with the prevalence of the Internet, uploading the film and
causing same to be accessed online are modern ways of causing the film
to be seen in public and should fall within the exclusive preserve of the
copyright owner.
d. Nature of Copyright in Sound Recording
By Section 7 of the Copyright Act, The Copyright owner in a Sound
Recording is authorized to
(i)
the direct or indirect reproduction, broadcasting or communication
to the public of the whole or a substantial part of the recording either
in its original form or in any form recognisably derived from the
original;
(ii)
the distribution to the public, for commercial purposes, of copies of
the work by way of rental, lease, hire, loan or similar arrangement.
Thus the unauthorized copying or duplication of CDs, DVDs or other
medium embodying a Sound recording, publicly playing a recording or
carrying out the rentals of these works, constitute an infringement of
copyright.
e. Nature of Copyright in a Broadcast.
By Section 7 of the Copyright Act, copyright in a broadcast shall be the
exclusive right to control the doing in Nigeria of any of the following acts,
that is(i)
the recording and the re-broadcasting of the whole or a substantial
part of the broadcast;
(ii)
the communication to the public of the whole or a substantial part
of a television broadcast, either in its original form or in any form
recognisably derived from the original; and
(iii) the distribution to the public, for commercial purposes, of copies of
the work, by way of rental, lease, hire, loan or similar arrangement.
By virtue of Section 7(2) of the Act, The copyright in a television broadcast
shall include the right to control the taking of still photographs from the
broadcast. See DIGITAL COMMUNICATION NETWORK (NIG) LTD v. NCC
(2013) LPELR-20797(CA)
OWNERSHIP/AUTHORSHIP OF COPYRIGHT
Ownership of a copyright gives the owner the right to exercise control over the
copyrighted material. Ownership may be acquired by virtue of authorship or
through transfer or transmission of some or all of the different rights which
make up the copyright in such work. It must be noted that there are certain
circumstances where the copyright vests in the employer of the author. (For
example, some university rules will stipulate that the thesis or outcome of the
research vests in the university).
As a general rule, copyright vests on the author even where the author has been
paid by someone else to create the work by way of commissioning or pursuant
to a contract of employment, except it falls under some exceptions as provided
by the Act.
Section 10 (1) provides that Copyright conferred by sections 2 and 3 of this Act,
shall vest initially in the author. (2) Notwithstanding subsection (6) of section 11
of this Act where a work- (a) is commissioned by a person who is not the author's
employer under a contract of service or apprenticeship; or (b) not having been so
commissioned, is made in the course of the author's employment, the copyright
shall belong in the first instance to the author, unless otherwise stipulated in
writing under the contract.
Following from the above provisions, where a photographer is commissioned by
a school to take pictures of the students, or a graphic artist in the employ of a
publishing firm designs some graphics; the copyright to the work although at
the behest of the school/students or publishing firm, belongs to the
photographer or graphic designer as the case maybe. This raises a number of
issues though. For example, the students can even be sued for the use of the
pictures.
The Courts have however, inferred that the employer or person/institution that
commissioned the work has an implied licence to the work. See the case of
BLAIR VS. OSBORNE (1971) 1 ALL ER 468.
The Court can also rely on the principles of equity to hold that though there is
an absence of a written agreement vesting legal ownership on the commissioner
or employer, such employer/ commissioner is deemed to have equitable
ownership copyrights over the work. See the case of PASTERFIELD VS. DENHAM
(1999) FSR 168.
Exceptions to the General Rule the Author of the work has the copyright to the
work
Where there is a contrary stipulation in a written contract. See Section 10
(2)(b). This may be a contract of employment or any other contract between
the parties.
b. The second exception is the limited copyright accorded to proprietors of
newspapers, magazines and other periodicals for the purpose of
publication. Section 10 (3) provides thus
“Where a literary, artistic or musical work is made by the author in
the course of his employment by the proprietor of a newspaper,
magazine or similar periodical under a contract of service or
apprenticeship as is so made for the purpose of publication in a
newspaper, magazine or similar periodical, the said proprietor shall,
in the absence of any agreement to the contrary, be the first owner
of copyright in the work in so far as the copyright relates to the
publication of the work in any newspaper, magazine or similar
periodical; or to the reproduction of the work for the purpose of its
being so published; but in all other respects, the author shall be the
first owner of the copyright in the work.”
i.
It must be noted that this exception applies only to Literary, artistic
or musical work.
ii.
It applies to proprietors of newspapers, magazines or similar
periodicals,
iii.
The author must be under a contract of service and the work must
have been made during his period of apprenticeship, or employment.
iv.
There must be no agreement to the contrary vesting the copyright in
the author/employee.
Where these conditions are fulfilled, the proprietor is deemed to be the first
owner of copyright in the work but the right must exercisable for only the
purpose and to the extent that the copyright relates to the publication of
the work in the newspaper, magazine or similar periodical or to the
reproduction of the work for the purpose of its being published. Where the
work is to be published in a book, adapted into a film or other purposes,
the author shall be the first owner of the copyright.
a.