Week 2 Subject Matter and Applicability of Copyright

Week 2
Subject Matter and Applicability of Copyright
Idayat Balogun
Applicable laws
The principal legislations are:
the Nigerian Copyright Act, Cap C.28 LFN, 2004
United States Copyright Act, Title 17 1976.
Others are:
The Berne Convention for the protection of Literary and Artistic Works 1886
2. The Agreement on Trade – related aspects of Intellectual Property Rights,
The World Intellectual Property (‘WIPO’) Copyright Treaty, 2002
4. Rome Convention for the protection of Performers, Producers of
Phonograms and Broadcasting Organizations 1961
Nature of Copyright
Copyright is the right to produce and distribute copies of an intellectual
production. The whole gamut of this branch of law is to recognize that these
rights resides in the writer or author of works only – Monopolistic
There are two different kinds of right1.
Moral Rights
Economic rights
Moral rights gives the author ownership over its creation and protects the
personal and reputational value of the work. Economic right on the other
hand gives the author the monopoly to exclusively exploit his creation for a
certain period. See 1st Schedule CRA for expiration of copyright.
As such any third party who wishes to adapt the work of the author must do
so with the author’s consent and approval.
Nature of Copyright (Contd)
Sections 5, 6, 7, and 8 of CRA gives the author of a work the exclusive right to
control (subject to the exceptions specified in the Second Schedule to this
Act) the reproduction, broadcasting, publication, performance adaptation or
communication in any material form, the whole or substantial part of the
work either in its original form or any other form derived from the original.
Okilo v. Dickfrancis
one of the exceptions in the 2nd Schedule of the Act is fair dealing
Idea/expression distinction
Copyright does not extend to idea but expression. Section 19.2 of the Trips
However, the merger doctrine stipulates that where there is only one way of
expressing an idea, that form of expression is not protected. See Alexander
Haley’s case, 1978.
The expression itself must have been fixed in a tangible or permanent form.
Donoghue v. Allied Newspaper (1938) Ch. 106 at 109. The case of Green v.
Broadcasting Corp of New Zealand (1989) 2 All ER 1056 further explained this
In that case the claimant tried to stop the defendant from copying the format for
a television programme, ‘opportunist Knocks’. The Privy Council accepted the
defendant’s argument that all they had taken was the idea. There was no work,
such as a dramatic work to be copied, and they had not copied any particular
broadcast, as they had created their own television programmes.
Subject Matter of Copyright – US Law
Section 102 of the USC provides for the subject matter of copyright.
Section 102(a) – copyright protection includes: literary works (including any
accompanying words; dramatic works (including any accompanying music);
pantomines and choreographic works; pictorial, graphic; and sculptural works;
motion pictures and other audio visual works ; sound recordings and
architectural works.
NB: original works of authorship of any sort can be protected. In other words,
the above listed works is not exhaustive. Section 102 (a) USC Act
Softwares are recently added to the list of protected works under the USC
Subject Matter of Copyright – Nigerian Law
Sections 1, 51 and part II of the 2004 CRA Act contains provisions as it relates to
the subject matter of Copyright protection.
Whilst section 1 gave a broad categories of works protected, section 39 defines
more succinctly the types of works contemplated within these broad categories.
Part II on the other hand contains some provisions concerning protection of some
other categories of works generally classified as neighboring rights.
Section 1
Works eligible for copyright protection under this section are: literary works;
musical works; artistic works; cinematograph films; sound recordings and
Subject Matter of Copyright – Nigerian
Law Part II – Neighboring Rights
Neighboring rights include the right of performers and protection of expression of folklore.
Section 26 CRA provides that a performer shall have the exclusive right to control, in
relation to performance, the following acts: performing, recording, broadcasting live,
reproducing in any material form; and adaptation of the performance.
Section 26(2) defines performance to include a dramatic performance (which include dance
and mine); a musical performance; and a reading or recitation of literary act or any similar
Section 31 CRA also protect the expression of folklore against reproduction, communication
to the public by performance, broadcasting, distribution by cable or other means;
adaptation, translations and other transformations when such expressions are made either for
commercial purposes or outside their traditional or customary context.
Section 32 CRA charges the Nigerian Copyright Commission the right to protect against the
infringement of folklore.
Eligibility for protection – Originality
See Sections 1 (2), (3) and (4) of CRA, 2004
OriginalityA literary, musical or artistic work shall not be eligible for copyright unless
sufficient effort has been made to give the work an original character
and the work has been fixed in
any definitive medium of expression.
Originality is a fundamental principle of a copyright, it is in fact regarded
as the basis of the protection given by the law of copyright to particular
forms of
Originality does not mean that the work must be necessarily novel or new.
That is the author does not have to be the first person to say something
in order to be able to have to be the first copyright protection of it. See
University of London Press Ltd v. University Tutorial Press Ltd (1916) 2
Ch. 601 at 608
Eligibility for protection – Originality
Originality is more concerned with the manner in which the work was created
and that the work truly emanated from the author. Per Justice Pearce in
Ladbroke (Football) Ltd v. William Hill (Football) Ltd (1964) 1 WLR 273 at
Thus originality for the purpose of copyright law is not originality of ideas or
thought but originality in the execution of the particular form required to
express such ideas or thought.
Eligibility for protection – Fixation
The requirement of fixation (permanent form) -
protection arises once a work is completed. The Rome Convention on the
Protection of Performers, Producers of Phonograms and Broadcasting
Organizations, 1961 requires the affixation (date of publication and
author’s name) of a copyright notice to the work.
The Act requires that the 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. Section 1 (2) (b) Copyright Act, 1990.
Thus, for works to be eligible for protection under the CRA as well as the USC,
the work must be original and be fixed in a permanent medium.
Literary, artistic, musical and dramatic works
- explained
Literary Works -
Section 51 CRA 2004 defines literary works to include (a) novels, stories and
poetic works; (b) plays, stage directions, film scenarios and broadcasting
scripts; (c) choreographic works; (d) computer programmes; (e)text-books,
treatise, histories, biographies, essays and articles; (f) encyclopedias,
dictionaries, directories and anthologies; (g) letters, reports, and
memoranda; (h)lectures, addresses and sermons; (i)law reports, excluding
decision of courts; (j)written tables or complaints. The Courts are however
prepared to look widely to what may constitute a literary work. See
University of London Press Ltd v. University Tutorial Press Ltd (1916) 2
Ch. 601 at 608.
Literary Works (Contd)
Section 6(1) (a) CRA 2004 – Owner of a literary work has the exclusive right
to control the doing of any of the following acts: (i) reproduce the work in
public; (ii) publish the work; (iii) perform the work in public; (iv) produce,
reproduce, perform or publish any translation of the work; (v) make any
cinematograph film or a record in respect of the work; (vi) distribute to the
public, for commercial purposes, copies of the work, by way of rental, lease,
hire, loan or similar arrangement; (vii) broadcast or communicate the work to
the public by a loud speaker or any other similar device; (viii) make an
adaptation of the work; (ix)do in relation to a translation or an adaptation of
the work.
Artistic works
Section 51 CRA defines artistic works to include any of the following work (s)
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 cinematographic film; (e) works of
architecture in the form of buildings models; and (f) works of artistic
craftsmanship and also (subject to section 1 (3) of this Act) pictorial woven
tissues and articles of applied handicraft and industrial art;
Musical works
Copyright in music differs from copyrights in literary and dramatic works in
the sense that there exist two kinds of copyrights in musical works. these are:
Copyrights in musical composition - section 102 (a) USC refers to this as
copyrights in musical works including any accompany words;
Copyright in sound recordings (this was added in 1972 as a subject matter
of copyright by US Statute).
Sound recording is defined as the fixation of a sequence of sound capable of
being perceived orally and of being reproduced but does not include a sound
tract associated with a cinematograph film.
Cinematograph Works
Cinematograph film has been defined to include the first fixation of a
sequence of visual images capable of being the subject of reproduction, and
includes the recording of a sound track associated with the cinematograph
film. Section 51 CRA
The owner of cinematograph work has the exclusive right, to do or authorize
the doing of any of the following acts, that is- (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) make any
record embodying the recording in any part of the sound track associated with
the film by utilizing such sound track, (iv) distribute to the public, for
commercial purposes copies of the work, by way of rental, lease, hire, loan or
similar arrangement. Section 6(1)© CRA
NB: Copyright also extend to broadcast
In conclusion, it is important to understand that for work to be protected under the
Copyright Act, it must have been seen to be original and also be fixed in a permanent
medium. For instance, if it is a music, it must have been recorded, if it is a book, it
must have been written.
Lastly, Copyright unlike trademarks and patents, need not be registered to be
protected. The copyright registration at the Nigerian Copyright Commission (NCC) is
purely for administrative purposes.
Sometimes people confuse depositing with the National Library as registration of
copyright . But it is not. In the case of I.C.I.C (Directory Publishers) v Ekko Delta
(1977) F.H .C.L.R 346 it was held that when a Plaintiff on publication of a book
deposited a copy with the National Library of Nigeria and was given a code
number as evidence of registration , the said registration is not copyright
registration or evidence thereof[ See IIIC STUDIES,Studies in Industrial Property
and Copyright Law Volume 21 by Folarin Shyllon -Intellectual Property in
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