By Amaka Ezeno, MCLArb,
Copyright infringement is an endemic in Nigeria. Recently, Carter Efe and Berry Tiga had a fallout over their copyright in ‘Machala’, a song which is an ode to Wizkid. In fact, Spotify and Apple Music removed the song once the dispute started. The intellectual property of writers, performers, composers, broadcasters, photographers, architects, filmmakers, etc, are subjects of untold piracy.
Infringement leads to loss of credit and earnings accruable from a creator’s work. Itoccurs where a person having no compulsory licence, and without the consent of the copyright owner does or causes another person to do an act (except for fair dealing), the doing of which is controlled by copyright; exhibits or imports infringed works, distributes by way of trade infringed works, or has in their possession any machines used for the purpose of making infringed copies of work, and/or permits a place of public entertainment to be used for the performance of an infringed work.
Thus, the primary function of copyright law is to protect the fruits of creators from unauthorized alterations. The field of intellectual property covers a broad range of areas including copyright, trademarks, patents, and industrial designs. This article provides an insight into the forms of copyrightable works, their eligibility, duration, infringement and the remedy thereof.
According to F. O. Babafemi, eligible works are those works of copyright that the law will protect. These works need no formal registration. The right of the creators crystallizes upon creation and fixation. However, copyright does not subsist if at the time of making the work, the maker intended it to be used as a model or pattern to be multiplied by any industrial process.
According to the Copyright Act, copyright work includes literary, musical, artistic works, cinematographic films, sound recordings and broadcasts.
For any work under the above category to enjoy copyright protection, two principal conditions must be met, and they are:
- Sufficient effort has been expended on making the work to give it an original character.
The courts have interpreted sufficient effort to mean the existence of some substantial or real expenditure of mental or physical energy of the producer, and the labour or skill employed in making the work is not a negligible or commonplace one.
The amount of labour, skill, judgment or ingenuity required to support successfully a claim of copyright is a question of fact and degree in every case. Thus, in Offrey v. Chief S. O. Ola & Ors, the plaintiff’s copyright claim in a book which consisted merely in drawing several horizontal and vertical lines was dismissed as such requires no real industry and knowledge.
On originality, the court in University of London Press Ltd. v. University Tutorial Press Ltd, held that, “The term ‘original’ does not in this connection 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… but that the work must not be copied from another work, that is, it should originate from the author.”
- 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.
The court aptly summarized this required in the case of Donoghue v. Allied Newspaper. It held that if the idea is not put into any form of words or any form of expressions such as a picture or a play, however brilliant and however clever it may be, is nothing more than an idea and is not copyrightable.
CATEGORIES OF PERSONS WHO MAY CLAIM COPYRIGHT
- Persons who are either Nigerian citizens or who are domiciled in Nigeria.
- Companies which are registered under Nigerian laws and which produce works of copyright.
- Persons whose works are first published in Nigeria or being sound recording made in Nigeria.
- Persons who are employed to make a work in the course of their employment, in which case, the copyright shall belong, in the first instance, to the author unless otherwise stipulated in writing under the contract of employment.
- Persons to whom copyright works are assigned by assignment, testamentary disposition or operation of law.
- Registered and approved collecting society.
- Persons to whom license of the work has been granted.
- The federal government where it has commissioned someone to make a work.
- Persons who are neither Nigerian citizens nor domiciled in Nigeria but who are citizens of or domiciled in a country that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party, United Nations, African Union, and ECOWAS.
DURATION OF COPYRIGHT
The Copyright Act provides that in relation to literary, musical or artistic work other than photographs, copyright in the work will expire seventy years after the end of the year in which the author dies. However, in the case of government or a body corporate, copyright in literary, musical or artistic work will expire seventy years after the end of the year in which the work was first published.
In the case of cinematograph films and photographs, the copyright will expire fifty years after the end of the year in which the recording was first made while in the case of broadcast, the Copyright will expire 50 years after the end of the year in which the broadcast first took place.
In cases of anonymous or pseudonymous literary, musical or artistic works, copyright shall subsist until the end of the expiration of seventy years from the end of the year in which the work was first published. However, as soon as the identity of the author becomes known, the terms of copyright in the work will expire seventy years after the end of the year in which the author dies. In the case of a work of joint authorship, a reference to the death of the author shall be taken to refer to the author who dies last.
The infringement of copyright works is a breach of statutory duty, and can be pursued by civil proceedings. The remedies available to the plaintiff include damages, injunction, account for profit and an order of court for forfeiture and delivery of every material related to the infringed work.