By Fiyinfoluwa Oyelade
Copyright is a branch of intellectual property law which is one of the fastest growing and emerging areas of law. The other branches of intellectual property are Trademark, Patent, Industrial Designs and the three can be jointly referred to as Industrial Property. Intellectual property are intangible assets acquired through intellectual creativity and such exclusive proprietary rights granted to the owners of this intangible assets are referred to as Intellectual property rights. This work covers copyright in Nigeria and fair dealings.
2. MEANING OF COPYRIGHT
The primary function of copyright under the law is to protect from annexation the work of a person. Copyright, according to Black’s Law Dictionary, is a right granted to the author or originator of certain literary or artistic productions, whereby the creator is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the literary or artistic works or selling them. The definition according to Black’s Law Dictionary is not comprehensive because copyright covers more than literary and artistic works. I shall define copyright as rights which vests on authors exclusive ownership of any of the following works: literary, musical, artistic, cinematograph, sound recordings etc. and gives such owner the power to authorize or prohibit the use of such works by others in accordance with the Copyright Act.
In Nigeria, copyright is governed by the Copyright Act. The works eligible for copyright under the Copyright Act are: literary, musical, artistic, cinematograph, and sound recordings. In Macmillan & Co V Cooper ,Lord Atkinson opined that ‘’The moral bases on which the principle of protective provisions of copyright rests is the eight commandments ‘thou shall not steal.’’ This goes to show that the Copyright Act is in the right direction in protecting the original works of an author/maker. The body responsible for Copyright in Nigeria is the Nigerian Copyright Commission. Nigeria is also a party to international treaties and agreements on copyright such as: Berne Convention, 1886, Universal Copyright Convention, 1952, Rome Convention, Trade Related Aspect of Intellectual Property Rights (TRIPS) and the World Intellectual Property (WIPO) Treaty.
3. WORKS COVERED UNDER THE COPYRIGHT ACT
As stated earlier, the works covered under the Copyright Act are:
i. Literary works
ii. Musical works
iii. Artistic works
iv. Cinematograph works
v. Sound recordings.
Each of these works shall be discussed below.
3.1 LITERARY WORKS
According to Section 51, 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.
Going by the above provisions, for a work to qualify as a literary work it has to be original and have been fixed in any definite medium of expression. The quality of the literary work is immaterial, as far as the work satisfies the twin condition of originality and fixation, it can enjoy copyright protection.
3.2 MUSICAL WORKS
The Interpretative Section of the Act, defines musical works to include means any musical composition, irrespective of musical quality and includes works composed for musical accompaniment. It is worthy of note that a sound recording and a music played in the sound recording will fall under two different copyright works. The sound recording will fall under the Sound recording works which protects the sound and the music played in the sound recording falls under the musical works which protects the music and the recording of the music. For a work to qualify as a musical work it has to be original and has to be in a fixed medium of expression. If the musical work is written, it has to have musical notes.
3.3 ARTISTIC WORKS
Artistic work includes, 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.
The Act gave an all-encompassing definition of what works can be classified as artistic. Just like the literary and musical works what is required is originality and fixation irrespective of the quality.
3.4 CINEMATOGRAPH FILMS
Cinematograph films includes 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. Any sound recording or track in a cinematograph film will be treated within the bounds of cinematograph film and not sound recordings.
3.5 SOUND RECORDINGS
Sound recording means 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.
According to the Copyright act, broadcast means sound or television broadcast by wireless telegraph or wire or both, or by satellite or cable programmes and includes re-broadcast.
To recap briefly, once a work falls under any of the six categories above, the requirement of originality and fixation must be fulfilled. Upon fulfilment of the two requirements, copyright will subsist in the work whether or not the work is registered. What is required of the author of such work is that a copy of the work is sent to the Nigerian Copyright Commission and a certificate is issued. The certificate issued by Nigerian Copyright Commission will serve as a notification of the existence of the work to the general public.
4. DURATION OF COPYRIGHT
Literary, musical or artistic works lasts seventy years after the death of the author. Cinematograph films and photographs lasts for a period of Fifty years after the end of the year in which the work was first published. Sound recordings lasts for a period of Fifty years after the end of the year in which the recording was first published, and Broadcasts lasts for a period of Fifty years after the end of the year in which the broadcast first took place.
Copyright in the case of anonymous or pseudonymous literary, musical or artistic work subsists for seventy years after the end of the year in which the work was first published. Where, however, the anonymity or pseudonym adopted by the author leaves no doubt as to the identity of the author, the term of protection shall subsist for the lifetime of the author and thereafter seventy years reckoned from the beginning of the year immediately following the year in which the author dies.
5. REQUIREMENTS AND CONFERNMENT OF COPYRIGHT
A work eligible for copyright can only be conferred copyright if the author is a citizen of Nigeria , or in the case of joint ownership, any of the authors is at the time when the work is made, is a citizen of Nigeria, or domiciled in Nigeria, or a body corporate incorporated by or under the Companies and Allied Matters Act. Copyright shall also be conferred on eligible works made in Nigeria or first published in Nigeria.
Copyright will be conferred on every eligible work made under the direction or control of the Government, State authority or a prescribed International body and they shall exercise ownership over such copyrights. If on the date of a publication, at least one of the authors is a citizen of Nigeria, or is domiciled in Nigeria or is a body corporate incorporated 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, such work shall be conferred copyright.
Lastly, copyright shall be conferred on a work according to the Act if the work was 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, or by the United Nations or any of its specialized agencies, or by the Organization of African Unity or by the Economic Community of West African States.
6. AUTHOR OF A WORK
Copyright bestows upon the owner of such work control, as to how the work (whole or substantial part) is being reproduced, published, translated to a cinematograph film or any form, adapted, transmitted, communicated to the public and distributed for commercial purposes.
The owner of a copyright of a work has the right to:
1. exclude others, except as provided by law, from doing certain things with respect to such work.
2. claim authorship of his work, object to and seek relief in connection with any distortion, mutilation or other modification of and any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation.
3. Share proceeds of sale whether made by public auction or through a dealer, if his works is a graphic work, three-dimensional works or manuscripts.
The first two rights above are perpetual, inalienable and imprescriptible. The third right is subject to the regulations to be made by the Nigerian Copyright Commission. Author of a work includes his heirs and successors in title.
A copyright is transmissible by assignment, by testamentary disposition, or by operation of law as movable property.
7. INGRINGEMENT OF COPYRIGHT
As stated in 6 above, the Act bestows exclusive rights on the owner of a work with respect to works protected by copyright. From the exclusive rights given to the owner of a work, it will amount to infringement on the right of the copyright owner for anyone not authorised by the owner to do any of the acts stated in Sections 6,7 and 8.
Anybody whose copyright is infringed on canm bring both a civil and criminal action against the offender at the Federal High Court in the division the infringement took place. The Criminal charge is initiated by the Nigerian Copyright Commission and upon conviction, the offender can be sentenced to terms of imprisonment ranging from six months to two years or with an option to pay fine ranging from N 100 to N1000 per infringing copy.
8. FAIR DEALING/FAIR USE
There are certain acts exempted from the control of copyright as contained in the Second Schedule to the Copyright Act. The exception of fair dealing or fair use, is a very significant and frontal exception to this end. Admittedly, it is difficult to define fair dealing. In Hubbard v. Vosper, Lord Denning enthused: “It is impossible to define what fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts.” Fair dealing in simple terms means allowing the use of a copyright work without permission from the author. Fair dealing applies to literary, musical, artistic works and cinematograph film works only with the exception of Sound recordings and broadcast. In determining fair dealing, the court would consider the value of the portion of the work taken to the work. Essentially, fair dealing must be determined on a case by case basis, as each case must be determined on its own merit. In Dodsley v. Kinnersley, the court held that no certain line can be drawn to distinguish a fair abridgment, but every case must be tried on its own peculiar facts. This is very pivotal because the slightest circumstances in the different cases can make the most important distinction.
Fair dealing purports that the dealing with the work must be genuine and reasonable. It follows that fair dealing with an author’s work for the purpose of a review, parody or criticism does not constitute an infringement. The law specifically states in the Second Schedule to the Copyright Act, that acts done by way of fair dealing for the purposes of research, private use, criticism, or review of the reporting of current events are exempted from copyright control. In other words, where a work is used for the purpose of research, private use, criticism or review or reporting of current events, there is no question of infringement of the copyright in such a work provided the use is by way of fair dealing. The Second Schedule to the Act also contains a host of exceptions on fair dealing.
It is of great necessity and importance that the work be accompanied by a sufficient acknowledgment. Fair use is a defence against a claim of copyright infringement. This it to encourage innovation, creativity, and development. The principle behind the doctrine of fair dealing is to increase reasonable access to copyrighted works. It is certainly not a defence for cheats to make profits from another’s hard work and innovation.
In conclusion, the owner of a copyright work enjoys rights which enables the owner to control how his work is used, subject to the provisions of the Copyright Act. In Nigeria, other legislations should be reviewed and amended to take care of areas not covered in the Copyright Act to fit into the new demands of the evolving world.
Fiyinfoluwa Oyelade writes from Nigeria. She can be reached at firstname.lastname@example.org