DEFINITION OF TERMS:
The Arts: This comprises of various forms of art born out of the exertion of the human creative mind. It includes literary arts (prose, poetry, short stories), the performing arts (music, dance, theatre and film) without excluding visual art (drawings, paintings etc).
Intellectual Property: Property born out of the exertion of intellect or the mind or of an original creative work or idea. It is intangible and has to be published i.e expressed in a physical form accessible to a third party, to be protected by law.
Intellectual Property Law: This is the area of law made up of enactments and judicial precedent which governs and regulates the protection of intellectual Property Rights.
Protected works: These are works covered by Intellectual Property Law ranging from books, videos, musical recordings to designs, inventions, Performances. Etc
Intellectual Property Rights: Rights which flow from Intellectual Property Law.
BRANCHES OF INTELLECTUAL PROPERTY LAW
Branches of Intellectual Property include:
- Copyright and Related Rights
- Trademark
- Patent
- Industrial Design
Copyright relates to writing, music, videos, stage plays/performance etc; and related rights include Broadcasts etc. Trademark protects names/ logos which identify a product or service. Patent protects rights in inventions and Industrial Designs protects rights in combination of lines, designs and or shapes of a product. For the purpose of this write up, we shall concentrate on Copyright as this is the branch of Intellectual Property that directly relates to the Arts.
WHAT IS COPYRIGHT?
Copyright is the exclusive right granted to the author of a work to use the work to the exclusion of all others and for him to exploit such work for his own benefit. It covers works that are expressions of thought and not mere ideas. Such works must have been expressed in a visible tangible medium.
Internationally it covers mainly literary and artistic works in a general sense. Article 2 of the Berne Convention (1886), the oldest international convention governing copyright provides that "the expression 'literary and artistic works' shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments...; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works, to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science... Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work... Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections."
Article 2 of the Berne Convention also provides for derivative works. These are works that are derived from other, existing sources e.g. translations of works into a different language; adaptations of works, such as making a film scenario based on a novel; arrangements of music in a different format different from what it was originally written for, an abridgement
of a novel; compilations such as encyclopaedias and anthologies and other forms of such works. Here, the originality usually resides in the choice and arrangement of the materials, provided that before embarking in a derivative work you respect the rights of the author of the initial work e.g. by seeking proper authorisation from the author of the original work. Any derivative work created without proper authorization and acknowledgement would expose the translator to the risk of being sued for copyright violation.
OVERVIEW OF NIGERIAN COPYRIGHT LAW
In Nigeria, Section 1(1) of the Copyright Act, Cap C28, Laws of the Federation, 2004 specifically states six basic categories of works that have copyright protection. These are:
- Literary Works
- Musical Works
- Artistic Works
- Cinematograph Films
- Sound Recordings
- Broadcasts
Neighbouring Rights in Nigeria cover expressions of folklore and performances.
Literary Works include books, poems, plays, stages directions, choreography, computer programmes, letters, memorandum lectures, law reports, sermons, compilations etc.
Musical works are musical compositions irrespective of musical quality and includes works composed for musical accompaniment.
Artistic works include paintings, drawings, maps, plans, diagrams, sculpted works, and photographs in a cinematograph film, some handcrafts and industrial art etc.
Cinematograph films include the first fixation of a sequence of visual images (recorded on material of any description) capable of being shown as a moving picture and being the subject of reproduction and includes the sound track
Sound recordings are the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced but excluding a sound track associated with a film.
Broadcasts include sound or television broadcasts made by wireless telegraph or wire or both or by satellite or cable programmes. It also includes rebroadcast i.e. simultaneous or subsequent broadcast by one broadcasting authority of the broadcast of another.
For a work to qualify for copyright protection it must be a work so properly called and it must also be one of the subject matters of protection.
Section 1(2) of the Copyright Act stresses the two important qualifications for works to be protected by Copyright are Originality (if a literary, musical or artistic work) and Fixation. The work itself must be original and not a mere re-presentation of a person’s work. Also it must be contained in a fixed medium as Copyright does not protect ideas. The author must have expended sufficient labour, judgment and skill to give the work some extra quality or character different from the raw material.
For a work to be a work so properly called, it must come under one of the six categories of works listed in the Act. Copyright does not protect ideas, only proper works. Some works can qualify for more than one category of works listed by the Act; therefore more than one work may be contained in one creation. For example a song may qualify as a literary work, a musical work and a sound recording. The literary work may cover the lyrics of the song if expressed in writing. The musical work refers to the musical composition and the sound recording refers to the audio recording of the song which is contained in CDs and other formats made accessible to the public.
Some compilations of pre-existing materials may also receive copyright protection when selected, arranged, organised and contained in the said compilations e.g. broadcast programmes, contract forms, examination papers, selections of poems and prose etc.
The duration for copyright protection in Nigeria is the life of the Author+70 years for literary, musical and Artistic works (except photographs); and 50 years from the making of the work for sound recordings, cinematograph films and broadcasts.
Authorship is the basis of copyright subsistence and Literary, Musical and Artistic works are based on it. The author of a work is the person who created the work or selected/ gathered together the detailed contents of the work. As a general rule the author of the work is the first owner. He can later assign some or all of his rights to another. Exceptions to this general rule however are Government works / works by prescribed international bodies, works made for publication in periodicals and contractual agreements.
The Copyright Act specifically defines the author in respect of the various categories of works. For cinematograph films, it is the person by whom the arrangements for the making of the film were made. This could include sponsors of the movie production. For literary, artistic or musical works, the author is the creator of the work. For photography, the author is the person who took the photograph. For sound recordings, the author is the person by whom the arrangements for the making of the sound recording were made. However for sound recordings of musical works, the author is the artist in whose name the recording was made subject to contract. For broadcasts transmitted from within a country, the author is the person by whom the arrangements for the making or the transmission from within the country were undertaken.
Copyright confers several exclusive rights in the author of the work. For literary and musical works, the author reserves the right to reproduce and publish the work in any material form, including the right to translate the work or its adaptation, right to performance, right to the reproduction or republication of any translation of the work, right to make a cinematograph film/recording in respect of the work, right of distribution, right of broadcast/communication of work to public and the right to make an adaptation of the work.
For artistic works, the author has a right to reproduction of the work in any material form, right to publication of the work, right to include the work in a cinematograph film, right to make an adaptation of the work and to do anything incidental thereto.
For cinematograph films, the author has a right to make a copy of the film, to communicate the film to the public to cause the film to be seen in public inclusive of sounds, to make any record embodying the recording of part of the soundtrack associated to the film, to distribute to the public for commercial purposes copies of the work through rental, lease, hire etc.
For sound recordings, the author has the exclusive right to the direct or indirect reproduction, broadcast or communication of the whole or substantial part of the recording and the right to distribution of the work and its copies to the public via rental, lease, hire, loan or similar arrangement.
For broadcasts, the author has the right to the recording and rebroadcasting of the whole or substantial part of the broadcast, right to the communication of the work or a substantial part of the work to the public, right to distribution of the work to the public for commercial purposes and for television broadcasts, the right to control the taking of still photographs from the broadcasts etc.
While the law confers copyright on the Author, same would be different where such works of an Author are created in his ordinary course of employment, i.e., as an employee or while under a contract of service or apprenticeship. In such instances the proprietor or principal will be the first owner of copyrights, particularly in the absence of any agreement to the contrary. This position is reinforced in Section 10(3) of the Copyright Act.
There are a number of exceptions to these rights as contained in the Act. These include fair dealing/private use, critique/ review of work, inclusion of the work in a broadcast where it is publicly viewed or incidentally viewed, educational broadcasts, publicly delivered extracts or communication of the work in a place where no admission fee is charged, news of the day, use for judicial proceedings etc.
THE NIGERIAN COPYRIGHT COMMISSION
The Nigerian Copyright Commission is the body created by the Copyright Act responsible for all matters affecting copyright in Nigeria. The Commission has a scheme, the Copyright Notification Scheme under which creators can notify the commission of works created. This Notification does not confer copyright in the owner because copyright is already inherent in the work once it is created and published and it meets the necessary requirements for copyright protection. The Scheme does provide the creators with the opportunity of informing the Commission about information on the work and helps to prove when exactly the work was created in situations of conflicting claims to the work. A Certificate of Notification is issued by the Commission to the Creator once the process is completed.
The Commission is also responsible for anti-piracy duties arrests, investigation and prosecution, arbitration, regulation of product facilities/ rental outlets, regulation of collective management organisations.
Where the right of the copyright owner is infringed, he has a right to enforce copyright in the work through a court action for infringement and he is entitled to reliefs such as damages, injunction, account for profit etc. Alternative Dispute Resolution is also encouraged as it provides a faster alternative towards enforcement of the copyright owner’s rights.
COPYRIGHTS AND ARTS
Art is a diverse range of human activities, whether visual, fine arts, literature, performing or interactive media, which embraces the organic metamorphosis from a whiff of an idea, to innovative thinking, development of ideas and fabricating finished tangible expression of such ideas. Arts embodies the creation of images or objects, being expressions of thoughts in fields such as Painting, Sculpture, Printmaking, Architecture , Photography, Music, Theatre, Film, Dance and other Visual Media.
An Artist is one who over a period of time has acquired some measure of credibility in exerting expertise and skill in any of the above mentioned areas of art. His activities in these areas are precipitated by intangible ideas that come to life as a result of the often detailed work and time expended via inventive and innovative activities.
Artistic Works for the purpose of the Copyrights Act and the character of Rights ascribed to them are however carefully spelt out under the Interpretation Section of the Copyright Act, Section 51. These Works includes Paintings, Drawings, Etchings, Lithographs, Woodcuts, Engravings and Prints, Maps, Plans and Diagrams, Sculpture, Photography, Architecture and other works of Artistic Craftsmanship.
When an original work is created, it is only fair that the creator or Artist is given the monopoly to exploit same. It is thus safe to assert that Copyright is the bedrock for commercial exploitation of creations of Art. Songwriters, Music Publishers and Composers, Photographers and other creators of sound recording, broadcasting, and film production are assured they can share their work with the public without the fear of unauthorized use via copying, adapting, distributing, performing in public, rental or lending and other communications to the public.
The individual, as the author or artist or creator is important in copyright because it distinguishes the creativity produced by an individual from the rest of society.
Thus, Copyright does help to foster creativity. Where more works are protected from infringement and reliefs are given to victims of piracy, more artists will be encouraged to create more. It creates a healthy environment and does on the long run increase a nation's international relevance.
HOW TO PROTECT RIGHTS AS CREATORS
There has always been a debate as to the importance of registering copyrightable works with the Nigerian Copyright Commission; upon careful scrutiny it is clear that Nigerian law does not require registration of copyright. It is the case in Nigeria that as soon as an original work is reduced to a fixed form, the work is automatically endowned with copyright. The NCC however provides copyright owners the option of a safety mechanism whereby creators can register their work and deposit a copy which serves as notification of the work. This could help in the proof of ownership of such works and in obtaining damages upon infringement by erring parties.
Also, at the end of your works you can include the copyright symbol and details of who the copyright in the work is vested in and when it was created. This does not confer copyright on the work, which as explained, already exists in the work upon creation and fixation. It is a mere indication of copyright in the work.
There should also be a clear understanding of cases where works are created under work for hire, in such instances the ownership of copyrights is vested in the Employer. This fact is stressed in SECTION 10 (3) of the Copyright Act. Whenever such instances arise, an author desirous of retaining authorship in such works should have terms documented as to the ownership of Copyright in the works created in his Agreement with his Employer.
CONCLUSION: ADVICE TO CREATORS
- You need to get yourself informed of your rights, because such information only empowers you to continue to be creative. Creativity thrives best in a protected environment.
- Keep being creative. Don’t just copy the next man’s work. Put on your thinking cap, meditate and come out with something much better or even totally different.
- Take necessary steps to safeguard your creation. Ensure your work is registered, where necessary. When you discover your copyright has been infringed, get a lawyer’s advice. A cease and desist letter can be written by your lawyer before you even go to court and a settlement can be reached in time.
- Don’t encourage piracy, it may appear that at least the pirates are on your side but in the long run, it doesn’t pay.
REFERENCES
- The Copyright Act 1988, 1970
- Lola Agbaje-Williams (2013) ‘So what is IP anyway?’ THE IP JOURNAL, March, 2013; www.theipjournal.blogapot.com/2013/03/so-what-exactly-is-ip-anyway.html?m=1
- John O. Asein (2013) ‘An overview of Copyright Law’ being a lecture delivered at Intensive Training in Copyright Law and Practice in Nigeria, April, 2013.
- World Intellectual Property Organisation (2013), ‘Module2- Copyright, Course D.L 101’ - General Course on Intellectual Property. www.wipo.org accessed on 4th March 2013
© September 2013 by Lola Agbaje-Williams and Akinyemi Ayinoluwa | All Rights Reserved.
Lola Agbaje-Williams and Akinyemi Ayinoluwa are Legal Practitioners based in Nigeria, passionate about Intellectual Property, Media and Entertainment Law and are at the forefront of advocating for a paradigm shift in the Nigerian creative sub-sect of the economy, wherein CREATORS as content owners can be prosperous and in control of their economic rights.
Follow @lolawilliams02; Follow @akinyemilaw; Follow @c3crewxtreme. #Intellectual Property. Also available on citrusmusiclive.com
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