What is copyright?

Copyright plainly and simply is a right vested in a person and enables him to publish, copy, distribute and make adaptations of a piece of writing, music, art or picture.

 The concept of authorship permeates copyright law. Authors are the creators of original works. Section 28 of the Nigerian Copyright Act of 2022 (formerly Section 10 of the 2004 Act) provides that copyright vests initially in the author. It should be noted that there is need to differentiate between the author of a work from the owner of a work.

Most times, the author and owner are the same but certain times, they differ, which leads to law suits and disputes in order to determine in whom copyright truly vests. Essentially, to qualify as an author, it is sufficient that it is your ideas that are being transposed into tangible format and thus, you acquire the copyright.

A painter hired to paint a portrait retains copyright in the portrait, even after he has been paid and even after he has delivered it to the person who commissioned it. Same with a photographer. This brings us to the issue of works for hire. The rule is that the employer or other person for whom the work for hire was prepared is considered the author for copyright purposes.

A work becomes a work for hire if created by an employee during his course of employment or if it falls under any of these nine categories- contribution to a collective work, part of a motion picture, translation, supplementary work, compilation, instructional test, test, answer to a test and atlas. There is however, a limitation that a work will not constitute works for hire when prepared by independent contractors.

There are certain rights a copyright holder or owner enjoys. The rights of an author are distinguished into economic rights and moral rights. Economic rights refer to the copyright holders exclusive right to exploit his work and reap the corresponding fiduciary gains. Moral rights are rights that shield or protect the personal or personhood interest of the author.

For the purpose of this article, we would examine the economic rights of the author as well as infringement of such rights. There are four clusters of the economic rights- right to reproduce the work, right to make modifications of the work, right to control the distribution, exportation and importation of the work and the right to control public performance or public displays of the work- these rights are exclusive to the copyright owner and if anyone else without the consent or license of the copyright owner, does any act inconsistent with his exclusive rights, such a fellow is said to have infringed on the copyright holder’s rights.

Sections 9-18 of the Nigerian Copyright Act 2022 provide for the exclusive rights of an author on all works eligible for copyright. Now, the right of reproduction is essentially the heart of copyright. The term copyright, could literally be explained as the right to make copies and that is the essence of the right of reproduction. The right of reproduction refers to the exclusive right of a copyright holder to make copies of his work.

Reproduction has three independent dimensions and in an action for infringement of copyright with regards reproduction, a plaintiff must satisfy all three dimensions. To prove unauthorised reproduction, the plaintiff must prove that the defendant generated the alleged infringing thing. In other words, that there must have been copying. Secondly, that the character of the allegedly infringing things constitutes copies.

In other words, that what the defendant created is in fact a copy. And thirdly, the nature and amount of the material the defendant took from the plaintiff would be considered in a court of law. In other words, improper appropriation. The clearest type of copying is mechanical reproduction. Here, it is a defence to use independent creation. That is to say, if two things are strikingly similar but are independently created of one another, then neither of the authors can claim infringement against the other. Part IV of the Nigerian Copyright Act covers copyright infringement. Particularly Section 36 and 37.  

Section 19 of the Nigerian Copyright Act provides for the duration of copyright. It provides that in the case of audiovisual works and photographs, copyright will subsist until fifty (50) years after the end of the year in which the work was first made available to the public with the consent of the author or fifty years after the work was created if not made available to the public within that time.

The duration of copyright in literary works in Nigeria is seventy (70) years after the end of the year in which the author dies, as provided by Section 19 (1) (a).  It should be noted that copyright is an aspect of intellectual property and is treated no different than other property. As such, the rules of inheritance guide copyright and intellectual property as a whole.

Hence, copyright can be passed down to an heir or to the children of a deceased author or owner or holder of copyright and continues to subsist until after the holder’s death for a limited, statutory period of time. This is so even in the case of joint authorship. When a joint author dies, his rights pass to his heir and not to the other joint authors.

As earlier stated, Section 36 of the Nigerian Copyright Act of 2022 provides for infringement of copyright and Section 37 provides for action for infringement. In proving or determining if a work has been copied by an infringing party, the plaintiff must use certain techniques. They are; first, direct evidence of copying.

Evidence of the defendant’s conscious and intentional use of the plaintiff’s work will suffice. Secondly, the plaintiff can show or prove that his work and the defendant’s work are sufficiently similar to each other. The third technique is for the plaintiff to show that his and the defendant’s work are strikingly similar and not just something that could have been gotten from the public domain. Finally, the last and most powerful technique is for the plaintiff to show that common errors in his and the defendant’s work. Sometimes, such errors are put in place deliberately in order to catch infringing parties.

The plaintiff must also show that the thing the defendant made through copying is sufficiently stable and concrete enough to be called a copy. The plaintiff can then further prove that the copying of the plaintiff’s work by the defendant went so far as to constitute an improper appropriation. The methods to show improper appropriation are as follows; firstly, that there was a comprehensive copying. Secondly, that there is fragmented literal similarity, and lastly, that there is comprehensive nonliteral similarity.

To prove fragmented literal similarity, the plaintiff must prove that the defendant took substantial portions of his work, measured qualitatively and quantitatively. The most important descriptions of the level of similarity required to trigger liability include that the plaintiff and defendant’s works have same aesthetic appeal, apparent appropriation, similar concept and feel and the extrinsic/intrinsic test. Another aspect of unauthorised copying of a work is seen in the modification of a copyrighted work.

By virtue of the TRIPS Agreement (the Agreement on Trade-Related Aspects of Intellectual Property Rights) a person may keep exploiting his derivative works if he pays the owner of the copyright a reasonable compensation. As such, derivative works do not forfeit copyright protection themselves. The relief or remedies a plaintiff is entitled to includes but is not limited to damages.

The relief of damages is essentially monetary compensation. Damages are sought for compensation, to avoid unjust enrichment of an infringing party, deterrence punishment and to maintain balance. In Nigeria, copyright subsist in works, whether or not the works have been duly registered with the Nigerian Copyright Commission. Generally, registration is also voluntary in the United States. However, to bring an action for infringement, such work would have to be registered. In Nigeria, there are no legal implications as registering with the NCC is voluntary.

Works eligible for copyright include literary works, musical works, artistic works, audiovisual works, sound recordings and broadcasts. This subject matter of copyright is provided for under Section 2 of the 2022 Nigerian Copyright Act.

Literary works include novels, books, short stories, poems, newspaper or magazine articles, lectures, speeches, addresses, computer programmes, sermons, film scripts and so forth. By virtue of Section 9 (a) – (k) of the 2022 Act, the exclusive rights in a literary work include the rights to: “reproduce the work; publish the work;

perform the work; produce, reproduce, perform or publish any translation of the work; make audiovisual work or record in respect of the work; distribute to the public, for commercial purposes, copies of the work, through sale or other transfer of ownership provided the work has not been subject to distribution by the owner; broadcast the work; communicate the work to the public; make the work available to the public by wire or wireless means.

Conclusively, the Copyright Act of 2022 offers innumerous advantages to creators and copyright authors or owners, particularly those operating in the digital landscape. It strives to strike a harmonious balance between ensuring fair and proper compensation for creators and promoting public interest in accessing new works and intellectual creations.

Lead Partner EKO SOLICITORS AND ADVOCATES