1.0 INTRODUCTION

It is an axiom that copyright protects the expression of an idea, rather than the idea itself.[1] This established principle has sparked off debate on what kind of work would be protected under the law; the conditions such a work must meet and what would disqualify a work from enjoying statutory protection. The Nigeria Copyright Act in Section 51 (1) defines work to include:

Translations, adaptations, new versions or arrangements of pre-existing works, and anthologies or collection of works which, by reason of the selection and arrangement of their content, present an original character 

The above confirmed the conditions which an author’s creation must meet to qualify as a work under the Act. As it is often stated, copyright automatically arises when a work is created.

This means that the creator of a copyright work does not need to have the work registered or to do anything else in order to enjoy the benefits of copyright protection. In Nigeria there is no registration requirement as a condition for a work to enjoy protection. Whether a work attracts copyright depends on whether the work falls within the categories of work provided for in section 1 of the Act.

Furthermore, the work must be recorded in a material form; the idea must not be copied from previous work without creative choices made to make it original; and it must meets the minimum standard requirement of sufficient skill, judgment and labour[2]. In the words of Lord Atkinson in the case of Macmillan V. Cooper[3]

…it is the product of the labour, skill and capital of one man which must not be appropriated by another, not the elements, the raw materials, if one may use the expression, upon which the labour and skill and capital of the first have been expended. To secure copyright for this product, it is necessary that labour, skill and capital should be expended sufficiently to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material…   

This case shows that the analysis of copyright infringement is not a simple procedure based upon direct copying of material; it is also possible through paraphrasing and partial copying to infringe on a copyright of a work.

2.0 SUBJECT MATTER OF COPYRIGHT

Subject to other provisions of the Act, Section 1 (1) of the Copyright Act[4] enumerates works eligible for copyright as follows:

  1. Literary works
  2. Musical works
  3. Artistic works
  4. Cinematograph films
  5. Sound recordings and
  6. Broadcasts

The above listing is exhaustive, and as aside from neighbouring rights also known as rights neigbhbouring to copyright as provided for in Part II of the Act, there can be no copyright in any work which does not come within the six (6) categories enumerated above[5]. In British and India Copyright Law there is dramatic works in its list which is not specifically mentioned under our law. The meaning of the said works above can be found in the Interpretation Section[6] of the Act.

It must be noted that thou the above categories may appear restrictive, it is broadly defined to accommodate a wide range of materials. For instance, a close reading of Section 51 (1)[7] shows that computer programs which is not specifically stated is included and covered by the definition of literary works. This is because software programs are written in computer language (whether source code or object code), the fact of their being written is what makes them literary, and thus their functionalities are immaterial[8].

2.1 Literary Work

A precise definition of what qualifies as literary work may be problematic as the definition has changed overtime. Under the 1911 and 1970 Acts, a literary work was defined to include maps, charts and plans; items which are now more appropriately classified as artistic works. A similar definition was given in Article 2 of the Berne Convention 1886.[9] However rather than attempt a definition, Section 51 of the Act simply state what literary works includes, irrespective of literary quality, any of the following works or works similar thereto-

  1. Novels, stories and poetical works;
  2. Plays, stage directions, film scenarios and broadcasting scripts;
  3. Choreographic works;
  4. Computer programmes;
  5. Text-books, treatises, histories, biographies, essays and articles;
  6. Encyclopedias, dictionaries, directories and anthologies;
  7. Letters, reports and memoranda;
  8. Lectures, reports and memoranda;
  9. Law reports, excluding decisions of courts;
  10. Written tables or compilations[10]

In the case of University of London Press v. University Tutorial Press[11], the expression “Literary work” was said by Peterson J. to cover:

“…work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word literary seems to be used in a sense somewhat similar to the use of the word ‘literature’ in political or electioneering lecture, and refers to written or printed matter.”

In the above case the University examination papers was held to qualify as “original literary work” under the 1911 Act and that copyright is vested in the examiner. However, considering the terms of the examiners employment, the examiners were held obliged to assign the copyright to the university.[12]

The list as stated in Section 51 (a) to (j) is not exhaustive and the court may, by reasonable extension, include words that are not expressly mentioned. For instance, copyright has been allowed in works such as letters, law reports, trade catalogues[13], examination papers[14], a time table index[15] and even the listing of programmes to be broadcast[16] although not expressly mentioned under the Act.

To qualify as literary work the material does not have to meet the taste of literary critics neither does it have to satisfy more than the minimum threshold of literary quality or style.[17]

2.3 MUSICAL WORK

This is defined by the Act as;

“any musical work, irrespective of musical quality and includes works composed for musical accompaniment”[18].

Musical work generally under Nigeria law includes any work consisting of music that is musical composition using musical equipment’s, exclusive of any words or action that are intended to be sung or spoken or performed. If a work is intended to be sung or spoken then it would fall under “literary work”.[19]

In Nigeria one Mr. Micheal Orakwe popularly known as ‘Pandora” was arraigned before the Federal High Court Lagos by the Nigeria Copyright Commission (NCC) for illegal reproduction of musical works belonging to the famous late musician, Dr. Sir Warrior, which copyright was later assigned to Panovo Entertainment.[20] The act of Mr. Micheal Orakwe infringes on the exclusive right reserved for the copyright owner in the musical work hence was actionable.

2.4 ARTISTIC WORK

Artistic work includes, irrespective artistic quality[21], any of the following works or similar thereto-

  1. Paintings, drawings, etchings, lithographs, woodcuts, engraving and prints;
  2. Maps, plans and diagrams;
  3. Works of sculpture;
  4. Photographs not comprised in a cinematograph film
  5. Works of architecture in the form of buildings, models and
  6. Works of artistic craftsmanship and also (subject to section 1(3) of the Copyright Act which makes an artistic work not eligible for copyright if at the time when the work was made, it was intended by the author to be used as a model or pattern to be multiplied by an industrial process) pictorial woven tissues and articles of applied handicraft and industrial art.[22]

It is worthy of note that some types of work are treated as artistic only if they bear a distinctive element of aesthetic creativity while others gain protection simply because labor and capital ought not be freely appropriable.[23]  Usually, there is no requirement of ‘artistic quality’ in categories (a) to (e) but a work of artistic craftsmanship (f) must necessarily involve some skill and artistic quality, notwithstanding that the section confers copyright “irrespective of artistic quality”.[24] The principle of “irrespective of artistic quality” sets the minimal level of effort to be expended on an artistic work, low. Thus, a simple drawing of a human hand showing voters where to mark their cross on a voting card,[25] the label design for a sweet tin[26] and even the arrangement of a few decorative lines on a parcel label[27] have all been accorded copyright.[28]

However for photographs the general rule is that copyright in photographs belongs to the person who takes the photograph (i.e the photographer) with the following exceptions:

  1. Where a photographer is an employee of a company instructed to take the photos or is a company instructed to take photos or is an employee whose normal course of duties requires photography, the photographer will be acting on behalf of his employer.

 

  1. If there is a written contract or an agreement signed by the photographer assigning copyright to another party.

In Joseph Ikhuoria v. Campaign Services Ltd & Anor[29] the court noted that when a person commissions the taking of a photograph or the painting or drawing of a portrait or undertakes an engraving and pays or agrees to pay for it in money’s worth and the work is made in pursuance of that commission, the person who so commissioned the work is entitled to any copyright in it as an original work[30].

2.5 CINEMATOGRAPH FILM

In the United Kingdom cinematograph film is defined as any sequence of visual images recorded on material of any description (whether translucent or not) thereby can be capable of use of that material; (a) of being shown as a moving picture, or (b) of being recorded on other material (whether translucent or not), by the use of which it can be shown.[31] In Nigeria it is said 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.[32]

In Restaurant Lee v State of Madhya Pradesh[33] it was held that the exhibition of movies by playing back pre-recorded cassettes in restaurants falls within the ambit of, cinemas under the Madhya Pradesh Cinema (Regulation) Act 1952 that when a video cassettes of movies on TV is certainly used as a tool for the representation of moving pictures or series of pictures and comes within the definition of cinematograph as defined by the said Act.[34]

Recent breakthroughs made in technological development, has brought about digital recording and different advanced ways in which filmed materials can be produced and subsequently manipulated. Generally, in the case of computer generated work, the author is the person who undertakes the arrangements necessary for the creation of the work.[35] Thus, in the case of a film, copyright will be owned by the person who ‘undertakes the arrangements necessary for the making of the film and this is usually the director’.[36]

2.6 SOUND RECORDING

The Copyright Act defines this as the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced but does not include a sound track associated with a cinematograph film.[37] Sound recording is to the ear, what a cinematograph film is to the eye.[38]

A copyright in a sound recording protects recorded musical, spoken or other sounds. A sound recording copyright is separate from the copyright in the material that is recorded. Thus, you could have a copyright in a sound recording and a separate copyright in a sound recording of that song. A sound recording copyright does not protect the sounds recorded in a motion picture or other audiovisual work.[39] To be eligible for copyright protection, a sound recording must be an original work, it must have originated with the author and it must show some minimal amount of creativity.

In Griffin v. J-Records[40]the plaintiff contended that there was infringement on a sound recording “Heart of Gold” which he created and registered in 2013 which had similarity with the defendants song titled “dance” however because of because of some minimal amount of creativity exhibited in the work “dance” the plaintiff action failed.

It should also be noted that ‘Sound recording’ covers any recording of literary, dramatic or musical work or other sounds (bird-song, the noises of motor-race etc)[41] However, this does not include a movie sound track which is protected as part of the film.

In what many have described as the biggest copyright on the African continent Suit no. FHC/L/CS/619/2016 Copyright Society of Nigeria (COSON) V. MTN[42] (unreported) CONSON in this suit asked the court for six separate declarations of copyright infringement perpetrated by MTN in the MTN Friendship, Connect’ or ‘Walk’ in Centres across Nigeria; the MTN Road Shows’ in Nigeria; the various MTN Music Concerts etc CONSON in the case ask the court for an injunction restraining MTN and its agents from the continued unauthorized copying, communication to the public, streaming, selling, broadcasting, making available for downloading and permitting the unauthorized performance and infringement of the copyright in the musical works and sound recordings belonging to its members and affiliates. The suit was later settled.

2.7 BROADCAST

Under the Act this is defined as sound or television broadcast by wireless telegraphy or wire or both or by satellite or cable programmes and includes re-broadcast[43].

Examples of broadcast here, includes television broadcast like BBC News, radio station broadcast like ‘Crown FM’ and satellite or cable programmes like ‘Digital Satellite Television’ (DSTV). It should be noted that once there is an infringement an action can be sustained for loss of revenue.

In Suit no: FHC/L/CS/603/2016 Copyright Society of Nigeria v. Federal Radio Corporation of Nigeria (FRCN) (unreported)[44] the copyright society of Nigeria filed this suit in the Federal High Court Lagos to restrain the Federal Radio Corporation of Nigeria (FRCN) from broadcasting music and sound recordings belonging to its members on all 42 FRCN station across the country until all music copyright royalties due to COSON were paid and alleged that conduct of FRCN had resulted in massive job and significant revenue losses as well as heavy capital flight from the country[45]. The suit was later settled.

3.0 CONDITIONS FOR ELIGIBILITY

A work is only eligible for copyright under Sections 2, 3, 4 and 5 of the Act[46] if it meets the stipulated conditions in Section 1. Section 1(2) provides as follows:

1 (2) A literary, musical or artistic work shall not be eligible for copyright unless-

  • sufficient effort has been expended on making the work to give it an original character;
  • 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.

It must be noted that by virtue of Section 1(4) of the Act,[47] a work shall not be ineligible for copyright based on the fact that it’s making involved infringement on copyright of another work.

4.0 ORIGINALITY                                                                         

In order for copyright to subsist in a work it has to be original – the principle is that sufficient effort must have been put in making the work. Such effort refers to sufficient “skill, judgment and labor”[48] to be expended by the author in creating the work and not that the work was simply copied.[49] Thus, the input to the work must satisfy this minimum standard of effort else the work will not be regarded as original[50] However, this does not mean that derivative works either breach copyright or are unprotected under the Act if they involve sufficient degree of skill or labour to be original[51].

By originality, one does not mean that the work should necessarily be ingenious, inventive or imaginative as the law does not concern itself with measuring these qualities. In the words of Megary, J “Copyright is concerned not with any originality of ideas but with their form of expression, and it is in that expression that originality is requisite”[52]

In the Nigerian case of Offrey v. Chief S.O.Ola & Ors[53], the Court held that copyright would exist in a given product if that product is the result of some substantial or real expenditure of mental or physical energies of the producer and the labour or skill was not a negligible or common place one. In the instant case, a book showing a neat layout of ‘vertical and horizontal columns’ was held not to have shown that the plaintiff had put into its production, substantial amount of labor.

From the foregoing, there must be evidence of some industry and knowledge.[54] Also, another requirement here is that the work must not have been copied from another person’s work. This has been upheld in a number of cases like I.C.I.C (Directory Publ) Ltd v. Ekko Delta (Nig) Ltd & Anor[55], and in the case of University of London Press Ltd v. University Tutorial Press Ltd[56], where Peterson J. said:

“The word ‘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, in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work- that it should originate from the author”.

Just recently, a popular Nigerian artist’s, Falz, song titled “This is Nigeria” was controversially said to be substantially an infringement of Childish Gambino’s song “This is America”. Owing to the similarities both songs have, many Nigerian have accused Falz of “Stealing Childish Gambino’s intellectual property but many others have come to defend Falz’s act describing “This is Nigeria as a ‘parody or satire, which is a defence under copyright law.[57] The question that readily comes to mind is whether Falz’s adaptation is an infringement in view of the fact that copyright in a work confers exclusive rights on the author, including right to make adaptation of the work,[58] It would be interesting to see how this question will be resolved by the court.

5.0 FIXATION

To receive copyright protection, a work must be “fixed in a tangible medium of expression and capable of being communication or reproduced”[59]. This requirement is embedded in Section 1 (2) (b) of the Copyright Act and states that;

“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”

This simply means that for a literary, musical or artistic work to be eligible for copyright, it must be expressed in a fixed or permanent form, but case law says a file saved on a computer is fixed for this purpose. Fixation can take any permanent form: you can fix a work in writing, in audio or video recording, or as a computer file. As long as you save a copy in a form that someone else could see or hear, it is fixed for copyright purposes[60].

The law does not expressly require ‘originality and fixation’ for cinematograph films, sound recordings and broadcast. The reason for this is not immediately clear but it stands to reason that the copyright conferred on the other three categories of work is based on the fact of creation and not on the creative content. On fixation, it goes without saying that except for broadcast, sound recordings and cinematograph films must necessarily exist in fixed media.[61] However, in the case of Canadian Admiral Corp v. Rediffusion Inc[62] the court found that there was insufficient fixation in the live broadcast of a sports event and so, could not be copyright. Cameron J., held that

for copyright to subsist in a work, it must be expressed to some extent at least in some material form, capable of identification and having more or less permanent endurance.”

This principle has been upheld in the case of Merchandising Corp of America v Harpond[63] where it was held that the subject matter did not have enough permanence to have copyright and also in the case of Komesaroff v. Mickle[64].

One may ask what happens to the work of authors which is yet to be put in a permanent form. Example, a musician or a poet who is talking to a crowd of people and suddenly he begins to freestyle some new lines which he has not put in a permanent form, what happens to the work? This would come under the protection of “Performer’s rights” provided for under “Neighbouring Rights” in Part II of the Copyright Act.[65] The performer shall have the exclusive right to control, in relation to his live performance, live broadcast amongst others.[66]

6.0 CONCLUSION

Conclusively though a work may be eligible for the conferment of copyright by coming under the purview of the list in Section 1 (1) of the Act, and satisfying the condition of originality and fixation under Section 1 (2) of the Act, Copyright will not ipso facto subsist under the Act unless such a work or its author is in some way linked to Nigeria.

Agherario Emmanuel Esq.,Legal Practitioner Base in Warri

[1] Section 1(2

[2] https://www.oxbridgenotes.co.uk/revision_notes/law-intellectual-property-law/samples/copyright-law-copyright -subsistence retrieved on 26/06/2018  copyright law copyright subsistence/Oxbridge Note the United Kingdom

[3] (1923) 511. A 109; AIR 1924 PC 75.

[4] Section 1(2)(3)

[5] John O. 2012. Nigerian Copyright Law & Practice 2nd ed. Nigeria: pg. 45,  Books and Gavel Ltd

[6] Section 39

[7] Copyright Act Cap C28 LFN 2004

[8]  p. 5

[9] Berne Convention 1886

[10] Ibid

[11] (1916) 2 Ch. 601 at 608-609

[12] Ibid p. 602

[13] Purefoy v. Sykes Boxall (1955) 72 R.P.C. 89, CA

[14] University of London Press Case (n. 5, above)

[15] Blacklock v. Pearson (1915) 2 Ch. 376

[16] Independent Television Publications v. Time out (1984) F.S.R. 64

[17] W.R Cornish “Intellectual Property” Patents, Copyright, Trade Marks and Allied Rights, 2nd ed Sweet & Maxwell 1989 pg 268-274

[18]  Section 51 (1) of the Copyright Act Cap C28 LFN 2004

[19] Chappell & co ltd v. Redwood Music ltd (1981) R.P.C 337

[20] ibid

[21] Copyright Act Cap C28 LFN 2004

[22] Section 51 Copyright Act, 1988 LFN, 2004

[23] Ibid (see n 11) @ Pg 337.

[24] Asien J.O.,2012. Nigerian Copyright Law & Practice.2nd Edition. Books & Gavel Publishing. Pg 66

[25] Kenrick v. Lawrence (1890) 25 Q.B.D. 99

[26] Tavener Rutledge v. Specters (1959) R.P.C. 355, C.A

[27] Walker v. British Picker ( 1959) R.P.C 57

[28] Ibid (see n.17) at Pg 338

[29] (1986) F.H.C.R 308..27,32

[30] Section 10 Copyright Act, Cap C28 LFN 2004

[31] Section 5b of the U.K copyright Act 1988

[32] S. 39 Copyright Act 1988 Cap C28 Laws of the Federation, 2004.

[33] AIR 1983 MP 146

[34] Shruti S.”Copyrights and Films: A legal viewpoint retrieved from www.legaleraonline.com/articles/copyright-and-films-alegal-view-point on 05/07/2018

[35] “Copyright guide: Who owns copyright?” The University Library, University of Sheffield. Retrieved 15th April 2016 from https://www.shefield.ac.uk/library/services/copyown

[36] Ibid

[37] Section 51 Copyright Act, Cap C28 LFN 2004

[38] Asien J.O.,2012. Nigerian Copyright Law & Practice.2nd Edition. Books & Gavel Publishing. Pg 72

[39] Jane H. “how to copyright a sound recording”/legalzoom.com retrieved on 6/7/2018 from https://www.legalzoom.com/articles/how-to-copyright-a-sound-recording

[40] 389 F. Supp. 2d 1137 (E.D. Wash. 2005) Music Copyright infringement Resources –sponsored  by USC Gould school of law retrieved on 6/7/2018 from mcir.usc.edu/cases/1900-1909/Pages/griffin.html

[41]  Ibid (see n 21 above) at pg 343

[42] 10 intellectual Property Cases that Made Headlines in 2016- Nigeria Law Intellectual Property Watch Inc. From https://nlipw.com/10-intellectual-property-cases-that-made-headlines-in-2016 retrieved on 06/07/2018

[43] Section 51 Copyright Act , CapC28 LFN 2004

[44] Ibid (p.5)

[45][45] Kanchana, Matthew 2017, Journal: International Review of law, Computers & Technology Volume 31, 2017 issue 3 “copyright and live streaming of sports broadcasting: international review retrieved on 06/07/18 from http:www

[46] Copyright Act Cap C28 LFN 2004

[47] ibid

[48] Per Lord Atkinson in Macmillan v. Cooper (1923) 93 LJPC 113 at 117

[49] Bristish Northrop Ltd v. Texteam Blackbum Ltd (1973) F.S.R. 241, at 254

[50] Cornish, W.R., 1996. Intellectual Property. 3rd Edition. Sweet&Maxwell. Pg 333

[51] Section 51 of the Copyright Act Cap C28 LFN 2004

[52] University of London Press Ltd v. University Tutorial Press Ltd (Supra), at 608

[53] Unreported, Suit No: HOS/23/68 decided 27th June 1969

[54] Babafemi, F.O 2007. Intellectual Property; The Law and Practice of Copyright, TradeMarks, Patents and Industrial Designs in Nigeria. 1st Edition Justinian Books. Page 12

[55] (1977) F.H.C.L.R 346

[56] Supra

[57] Ihenyen, 2018 “This is America vs This is Nigeria-Has Falz infringed on Gambino’s copyingright? Retrieved on 06/7/2018 from www.infusionlawyers.com.ng/ip-matters/this-is-america-vs-this-is-nigeria-has-falz-infringed-on-childish-gambinos-copyright

[58] Section 6 of the Copyright Act Cap C28 LFN 2004

[59] Susan, 2013, Originality and Fixation in Copyright Law-Susan Spann, Mystery Author, retrieved on 7/07/2018 from www. Susanspann.com/originality-and-fixation-copyright-law

[60] Ibid (par.7)

[61] Asien J.O.,2012. Nigerian Copyright Law & Practice.2nd Edition. Books & Gavel Publishing. Pg 74

[62] (1954) Ex.CR 382, 20 CPR 75

[63] (1983 FSR 32 CA

[64]  (1988) RPC 204

[65] Section 26 Copyright Act Cap C28 LFN 2004

[66] ibid

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