ABSTRACT
Copyright is gradually assuming prominence in this country. This is not surprising
because of its economic significance. Copyright seeks and aims at protecting the
author’s economic interests nationally and internationally. It is not only of economic
significance to the authors but also to the public in general.
Copyright does not prohibit all copying or replication. It is not one of those rights that
admit of no exception. This shows that certain acts are exempted from copyright
control. The Copyright Act, especially schedule two thereto, specifies a number of
exceptions from the general principle of copyright control. The exceptions do not
have general application to all the eligible works. Its application depends on the
nature and type of a particular work. All the exceptions specified in the Second
Schedule to the Act apply to Literary, Musical, Artistic Works and Cinematograph
Film; they have limited application in respect of Sound Recordings and Broadcasts.
Sound Recordings are only subject to paragraphs (a), (h), (k), (l), and (p) of the
Second Schedule, while at the same time paragraphs (a), (h), (k), (n), and (o) apply to
broadcasts
There are also some other special exceptions specified under the third schedule in
respect of sound recordings of musical works. Moreover, other exceptions abound
throughout the length and breadth of the Copyright Act.
These exceptions make it clear that copyright in work is not infringed by any person
whose act comes within the context of any of the specified exceptions.
The aim of this work as the title suggests is to discuss the relevant provisions of the
Copyright Act that protects Fair Dealing. Infringement under the law is not condoned
but when the act or omission is carried on under some special circumstances of Fair
Dealing, it is not regarded as infringement under the law.
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6
The copyright law made provisions for the protection of intellectual works, criteria for
eligibility, originality, fixation and duration of copyright works as well as sanctions or
punishment for infringement of such works but the copyright law made copious
provisions for exceptions. For instance, it is not infringement by doing any of the acts
reserved for the copyright owner by way of Fair Dealing for purposes of research, private
use, criticism or review or the reporting of current events. It is these exceptions and others
that are regarded as Fair Dealing under the Copyright Act.
With a view to achieving the purpose of this the work, is divided into Chapters each
Chapter dealing with a distinct aspect of the Copyright Act.
The introductory aspect of copyright, including Meaning of Intellectual Property,
Copyright, the Rationale for Copyright Protection, as well as the Nature and Scope of
Copyright will be discussed in Chapter One.
The Historical Evolution, Ownership, Duration, Transfer, and Transmission, Copyright
and other related Rights (Neighboring Rights) and the Socio-economic impact of
Copyright Act in Nigeria, Administration of Copyright in Nigeria and Challenges to
Effective Copyright Administration in Nigeria will be taken care of in Chapter Two.
Infringement of Copyright Meaning of Infringement, Modes of Infringement, Proof of
Copyright Infringement, Enforcement and Remedies and Exceptions to Copyright Control
is dealt with in Chapter Three.
The Concept of Fair Dealing in Copyright Protection, Nature of Fair Dealing in
Copyright Protection, Rationale for Fair Dealing as an Exception to Copyright
Protection forms the Fourth Chapter.
Chapter Five deals with Fair Dealing and Challenges to Copyright Protection,
Challenge of Copyright in the Digital Age, Challenge for Educators, Copyright Act:
Copyright Challenge in Nigeria
Chapter six is the concluding part of the thesis, which includes the recommendations
made
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7
TABLE OF CONTENTS
Title Page i
Certification ii
Dedication iii
Acknowledgement iv
Abstract v
Table of contents vii
Table of Cases ix
Table of Statutes xiv
Table of Abbreviations xvi
CHAPTER ONE
CHAPTER ONE: INTRODUCTION
Meaning of Intellectual Property 1
History of Intellectual Property 3
Meaning of Copyright 6
Rationale for Copyright Protection 13
Nature, Scope and Subsistence of Copyright 21
Criteria for Protection 36
CHAPTER TWO: NATURE AND EFFECT OF COPYRIGHT PROTECTION
Historical Evolution of Copyright 39
Ownership of Copyright 43
Duration of Copyright 50
Transfer and Transmission of Copyright 51
License 55
Copyright and Other Related Rights (Neighbouring Rights) 60
The Socio-economic impact of Copyright Act in Nigeria 71
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8
Administration of Copyright in Nigeria 75
Challenges to Effective Copyright Administration in Nigeria 84
CHAPTER THREE: INFRINGEMENT OF COPYRIGHT AND EXCEPTIONS
TO COPYRIGHT CONTROL
Meaning of Infringement 96
Modes of Infringement 103
Proof of Copyright Infringement 132
Enforcement and Remedies 136
Exceptions from Copyright Control 155
CHAPTER FOUR: THE CONCEPT OF FAIR DEALING IN COPYRIGHT
PROTECTION
Fair Dealing as a Concept in Copyright 169
Nature of Fair Dealing in Copyright Protection 172
Rationale for Fair Dealing as an exception to Copyright Protection 176
CHAPTER FIVE: FAIR DEALING AND CHALLENGES TO COPYRIGHT
PROTECTION
Challenge of Copyright in the Digital Age 183
Challenges for Educators 191
Fair Use and Professional Responsibility 192
Restrictions for Fair Use 193
Copyright Act: Copyright Challenge in Nigeria 195
Fair Dealing as a Balance between User Right and Copyright Protection 198
Challenges to Copyright Protection Generally 210
CHAPTER SIX: CONCLUSION
Conclusion / Recommendations 218
Bibliography
223
9
9
TABLE OF CASES
Adebayo V Adebayo (1973) 4 SC 25 54
Aitken, Hazen, Hoffman, Miller P.C V Empire Construction Company 542 F.
Supp. 252;218 USPQ 409; 171
Akinlenibola V COP (1976) 6 SC 205-225 136
Alhaji Agbeje V Ibru Sea Foods Ltd (1972) SC 5055 135
Akapo V Habeeb (1895) 1 CH 567,571 143
Associated Artists Ltd V IRC (1956) 2ALL ER 58 160
Atlas Co Et Al V Street & Smith 204 Fed R 398 – a Circuit Court of Appeal Decision 51
Aton Piller KG V Manufacturing Processes Ltd & Ors (1976) 1 CH 55 146
Ayman Ent Ltd V Akuma Ind Ltd (2002)13 NWLR (PT 836) 22 2
Azeez V The State (1986) 3NWLR PT 23 541 135
Banks V Goodfellow (1870) LRSQB 549 54
Bellof V Pressdram Ltd & Anor (1973) 1 All ER 241 47
Blair V Osborne & Tomkins (1971) 2 QB 196 143
Bray V Ford (1886) AC 44, 51 46
Bright Tunes Music Corp V Harrison Music 420 Supp. 177 sdny 1976 96
British Oxygen Co Ltd V Liquid Air Ld (1925) CH 383 169
Brommel V Meyer (1913) 29 TLR 148 110
Byrene V Statistics Co (1914) 1 KB 622 114
Campbell V Acuff – Rose Music 501 US 569, CT 1164, 127 LED 2D 500 173
Caxton Publishing Co Ltd V Sutherland Publishing Co Ltd 91939) AC 178 152
CCH V Law Society (2004) SCC 13 203
Cescinsky V George Routlege & Sons Ltd (1916) 2 KB 325 330 114
Chatterton V Cave (1878) 3 App Cas 483 170
Colbum V Simms (1843) HA 543 560 149
Coleco Industries Inc V Bandai – American Inc 546 F. SUPP 125 216 USPQ 812 102
ConplackLtd V Kolynos Inc (1925) 2KB 804) 46
Cooper V Stephens (1895) 1 CH 567, 571 113
10
10
Coreli V Gray (1913) 29 TLR 570 571 116
Davoll et all V Brown 1 Wood B & M 53, 3 West LJ 151 F 7 Cas 197, No 3662 3
Densy Ind Ltd V Uzokwe (1998) 9 NWLR (PT 567) 575 132
Donoghue V Allied Newspaper Ltd (1938) CH 106 132
DPP V Kent & Sussex Contracts Ltd (1944) KB 146 129
Duke V Bates (1884) 13 QBD 843 125
Emi Ltd V Sarway & Haidar (1977) FSR 146 148
Ernest Turner Electrical Instruments Ltd V PRS (1943) CH 167 110
Exchange Telegraph Co V Gregory & Co (1896) 4 NWLR (PT 34) 1 QB 147 140
Exp Island Records & Ors (1978) CH 122 132 61
Falcon V Famous Players Film Ltd (1926) 2 KB 474 104
Falobi V Falobi (1976) 10 NCC 169 135
Fenning Film Services Ltd V Wolver Hampton, Walsall & District Cinemas Ltd 116
(1914) 3 KB 1171
Ferodo V Unibros Stores (1980) FSR 489 146
Fisher V Bell (1961) QB 394 399 123
Francis Day & Hunter & Anor V Bron & Ano (1963) 1 CH 58 101
Gaumont British Distributors Ltd V Henry (1939) 2 KB 711 65
Gero V Seven-Up Co 535 F. Supp 212 215 USPQ 512 21
Grace V Newman (1875) LR 19 Eq 623 52
Harms (Inc) Ltd V Martins Club (1927) 1 CH 52611 116
Harper & Row V Nation Enterprises 811 F.2 ED (2d cir. 1987) 172
Harris V Amery (1865) 13 LT 504 at 505-56 121
Hawkes & Sons (London) Ltd v Paramount Film Services Ltd (1934) CH 593 101
Hellinrake V Trustwell (1894) CHD 420 at 427 12
Hubbard & Anor V Vosper & Anor (1972) 2 QB 84,98 171
Hubbard V Stepthens (1895) 1 Ch 567, 571 143
Hunter V Fitzory Robinson & Ano 91916) 2 325 171
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11
Hogg V Toye & Co (1969) 1 Ch 508 133
ICIC (Directory Publishers) Ltd V Ekko Delta Nigeria Ltd & Ano (1977) 3FHCR 346 108
IRC Int’l Ltd V Jena Traading Co (1976) 2 FHCR 346 136
I. J Adenuga V Ilesanmi Press Sons (Nig) Ltd (1991) 5NWLR (p189) 82 56
Infabrics Ltd V Jaytex Shirt Co (1981) 1 All ER 105 126
Island Record Ltd V John Shipping Services Ltd unreported suit NO fhc/l/1/85 118
Johnson V Bernard Jones Publications Ltd & Beauchamp (1884) 13 QBD 843, 849 169
Johnson V Maja (1951) 13 WACA 290 54
Joy Music V Sunday Pictoria (1960) 2 QB 6 157
Kelly V Byles (1869-80) 13 CHD 682 108
Kingfeatures Syndicate Inc V O & M Kleeman Ltd (1964) 1 All ER 465 108
Kotoye V CBN ( 19890 1 NWLR (PT 93) 419 143
Ladbroke (Football) Ltd V William (Football) Ltd (1964) 1 All ER 465 132
Lamb V Evans (1893) 1 CH218 117
Laibru Ltd V Building & Civil Engineering Contractor Ltd (1962) 1 All NLR 387 53
Lauri V Renad (1892) 3 CH 402 115
Lee V Gibbings (1892) 67 LT 26 153
Loose V Williamson & Ano (1978) 1 WLR 639 148
Macmillan & Co V Cooper (1923) 40 TLR 186, 187 117
Mandilas & Kalabaris Ltd v cop (1958) 9 NWLR 129
Mansell V Valley Printing 91908) 2 CH 411 100
Maxwell V Somerton (1874) 30 LT 11 56
Merchant Adventures Ltd V M. Grew & Co Ltd (1972) 1 CH 567, 571 111
Messers Misr (Nig) V Mallam Yusuf Ibrahim (1974) 5 SC 55,61 149
Michelin V CAW Canada (1996) 71 CPR (3d) 348 202
Miekle & Ors V Maufer & Ors (1945) 3 All ER 44 171
Miller V Taylor 4 Burr 2303 or 98 ER 201 (1969) 22
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12
Mischief V Springett (1942) 2KB 732 122
Mood Music Publishers Co Ltd V De Wolfe Ltd (1976) 1 CH 119 124
Morris V Wright (1869-70) 108
Musical Copyright Society of Nigeria Ltd GTE V Details Nig Ltd FHC/L/CS/434 102
Norwich Pharm Co Ltd & Ors V Customs & Excise Commissioners(1974) A.C133 120
Oladipo Yemitan V Gbenga Odusanya (1980) FHCR 180 140
Oluwanushole Dev Co V Guinea Ins Co (1980-86) NSC 276 147
Patkun Industries Ltd V Nigerian Shoes Manufacturing Co Ltd(1988)5NWLR(Pt 931) 2
Plateau Publishing Co Ltd V Chief Adophy (1986) 4 NWLR (Pt 34) 205 140
Power V Head (1879) 12 CH 686 59
PRS V Camelo 91936) 3 All ER 233 116
PRS V Ciryl Theatrical Syndicates Ltd (1924) 1 KB 762 126
PRS V Hammond’s Bradford Brewery Co Ltd (1934) 1 CH 121 116
PRS V Harlequin Records Shop (1979) FSR 233 127
PRS V London Theatre of Varieties Ltd (1924) AC 1 140
PRS V Mitchell & Brooker (Palais De Danse) Ltd (1924)1KB 762 126
R V Ribert ( (1869) LR 2 CCR 18 99
R V ICR Haulage Ltd (1944) KB 551 129
Re Dickens (1935) 1 CH 267 54
Riddick V Thames Board Mills Ltd (1977) 3 All ER 148
Rookes V Barnard (1964) AC 1129 142
Salinger V Ranmdom House 471 US 539 105 CT 2218 173
Salmon V Salmon & Co Ltd (1897) AC 22 129
Savory (EW) Ltd V World of Gold Ltd (1914) CH 566 52
Smith V General Motor Cab Ltd (1911) AC 188 48
Sutherland Publishing Co Ltd V Caxton Publishing Co Ltd (1926) 1 All ER 177
Tafida V Abubakar 91960) 1 WLR 1072 47
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13
Thebege V Galerie d’Art du Petiti Champlain (2002) SCR 336 Parag 6 199
Titmus V Littlewood (1916) 1KB 732 121
Udakason Enterprises Ltd V Olisa (1972) ECSLR 171 53
University of London Press V University Press Ltd 91916) 2 CH D 601 171
Utaka V Emembo (1963) 7 ENLR 137 53
Uzokwe V Dansy Ind Ltd (2002) FWLR (PT 90) P 1322 3
Walter V Lane (1900) A C 539 117
Walter V Steinkopff (1892) 3 CH 489 56
Warwick Film Productions Ltd V Eisinger & Ors (1969) 1 CH 508 133
Wea Records Ltd V Benson King (Sales) Ltd 1974 100
West V Francis (1941) AC 417, 424 108
Wheaton V Peters 33 US (8Pet) 59 (1834) 164
William V Settle (1960) 1 WLR 1072 47
Wood V Boosey (1868) LR 3QB 223 162
Yabugbe V COP 78
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14
TABLE OF STATUTES
African Growth and Opportunity Act 2000
Australian Copyright Act 1968
Bankruptcy Act Cap B2 Laws of Federation of Nigeria 2004
Collective Management of Copyright & Related Rights 2002
Constitution of the Federal Republic of Nigeria 1979
Constitution of the Federal Republic of Nigeria 1990
Constitution of United States of America
Copyright Act of 1911
Copyright Act No 47 of 1988
Copyright Act Cap 68 Laws of Federation of Nigeria 1990
Copyright Amendment Decree No 42 of 1999
Copyright Amendment Decree No 98 of 1992
Copyright Charter of 1556
Copyright (Collecting Societies) Regulations 1993
Copyright Law Cap C 28 Laws of the Federation of Nigeria 2004
Dramatic & Musical Performances Protection Act 1958
Dramatic & Musical Performances Protection Act 1972
English Copyright Act 1956
Evidence Act Cap E14 Laws of the Federation of Nigeria 2004
French Copyright Law 1971
Federal High Court (Civil Procedure) Rules 1976
Interpretation Act Cap 123 Laws of Federation of Nigeria 2004
Law Instituting Protection for Copyright & Neighbouring Rights 1987
Law on Copyright and Related Rights 2001
Law on the Protection of Copyright of Senegal
15
15
Ordinance on Literary and Artistic Property of Mali
Patents & Designs Act Cap P2 Laws of Federation of Nigeria 2004
Rome Convention for the Protection of Performers’, Producers of Phonogram &
Broadcasting Organisation 1961
Statutes of Anne 1709
Universal Copyright Convention of 1952
Universal Declaration of Human Rights 1948
United States Copyright Act 1976
US Trade Law 2000
WIPO Performances and Phonograms Treaty (WPPT) of 1996
WIPO Copyright Treaty (WCT) of 1996
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
of 1994
Zambian Copyright & Performers Act 1994
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16
TABLE OF ABBREVIATIONS
AGOA – African Growth and Opportunity Act
ARIPO – African Regional Industrial Property Organisation
CRIS – Communication Rights in the Informative Society
DSU – Dispute Settlement Understanding
ECOWAS – Economic Community of West African States
EFCC – Economic and Financial Crimes Commission
EFF – Electronic Frontier Foundation
IFLA – International Federation of Library Associations and Institutions
IIPA – International Intellectual Property Alliance
ISN – International Standardized Book Number
NCIC – National Copyright Information Centre
OAPI – African Intellectual Property Organisation
SID – Source Identification
TRIP – Trade Related Aspects of Intellectual Property Rights
WCT – WIPO Copyright Treaty
WIPO – World Intellectual Property Organisation
WPPT – WIPO Phonograms and Performances Treaty
WTO – World Trade Organisation
UCC – Universal Copyright Convention
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CHAPTER ONE
INTRODUCTION
1.0 Meaning of Intellectual Property.
The term Intellectual property could simply be said to be that which deals essentially
with ownership. There is generally no one acceptable definition of the term
Intellectual Property but it could be said to be that which relates to all or any of those
categories of property, which are acquired through intellectual creativity. They are
normally intangible in nature and are subject to ownership with the entire attendant
legal incidence.
Intellectual Property is a legal field that refers to creations of the mind such as
musical, literary and artistic works; intentions, and symbols, names, images and
designs used in commerce, including copyrights, trademarks, patents, and related
rights. Under Intellectual Property Law, the holder of one of these abstract
“Properties” has certain exclusive rights to the creative works, commercial symbol, or
invention, which is covered by it. The laws of some government have recognized
forms of intellectual property for a few centuries, but other government’s scholars
question the legitimacy and philosophical basis of such laws. Several international
treaties since the 19th century have standardized many aspects of the law, but the laws
and enforcement still vary widely from one jurisdiction to another. Furthermore, the
understanding and observance of Intellectual Property Laws by individuals are widely
varied.
Obviously this Branch of Law has grown enormously over the years thus leading to
its separation from the wider and pre-existing prawns of property law. This may be
attributed to the growth and development in science and technology. The introduction
of this technology has led to learning and inventions being spread more widely to the
masses. From the foregoing, one would be faced with the inevitable question, what
sorts of intellectual creations are covered by the law of intellectual property.
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18
Basically, there are four major subjects of intellectual property law viz: Copyright,
Trademarks, Patents and Industrial Designs. The last three are usually called
“Industrial Property” mainly because they substantially concern industrial processes
and application.
Copyright operates to control the copying of intellectual materials existing in the field
of literature and the arts, protecting the writer or artist against the unauthorized
copying of his materials thereby giving the copyright holder the exclusive right to
control reproduction or adaptation of such works for a certain period of time. The
primary concern of Copyright is with expression of ideas, such expression boarding
mainly on originality and not necessarily novel and they may be in the form of
literary, artistic, musical or other works of art. The right generated or acquired
through Copyright is conferred automatically in Nigeria without registration.
Trademark on its own deals chiefly with marks that are used or proposed to be used in
relation to goods for the purpose of indicating a connection between the goods and the
proprietor of the mark. It is a distinctive sign which is used to distinguish the products
or services of different businesses. It must be mentioned at this point that such mark
or symbol must be used in the course of trade. This right being a monopoly right is
registerable and upon registration the right is protected both under statute and
common law or passing off as was applied in the case of Patkun Industries Ltd V
Nigeria Shoes Manufacturing Co. Ltd 1
A Patent on its own is an exclusive right granted by law to an inventor guaranteeing
him the exclusive use and exploitation on the industrial process as invented. A Patent
is equally registerable. It gives the patent holder a right to prevent others from
practising the invention without licence from the inventor for a certain period of time.
The right to an Industrial Design similarly consist of the right in the reproduction and
1
(1988) 5NWLR (Pt 93) 138 and Ayman Ent Ltd V Akuma Ind. Ltd (2003) 13NWLR (Pt836) 22.
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19
use of a registered design intended to be used as a model or pattern to be multiplied by
any industrial process and is not intended solely to obtain a technical or functional
result. An Industrial Design right protects the form of appearance, style or design of
an industrial object (eg spare parts, furniture or textiles) A Design is registerable if it
is new and not contrary to public order or morality2
–
An Industrial Design is any combination of lines or colours or both and any threedimensional form whether or not associated with colours if it is intended by the
creators to be used as a model or pattern to be multiplied by industrial process and is
not intended solely to obtain a technical result. It is noteworthy that the law of
Industrial Property frowns at any similarity even if coincidental but the law on
copyright only prohibits unauthorized copying.
“Intellectual Property” denotes the specific legal rights, which authors, inventors and
other Intellectual Property holders may hold, and exercise, and not the intellectual
work itself. Intellectual Property Laws are designed to protect different forms of
subject matters, although in some cases there is a degree of overlap.
Patents, Trademarks, and Designs Rights are sometimes collectively known as
Industrial Property, as they are typically created and used for industrial or commercial
purposes.
1.2 History of Intellectual Property
The earliest use of the term ‘Intellectual Property’ appears to be an October 1845
Massachusetts Circuit Court ruling in the patent case Davoll et all. V. Brown 3
in
which Justice Charles L. Woodbury wrote that:
______________________________________
2
Patents And Designs Act Cap P2 Laws of Federation of Nigeria, 2004 S.12, S. 13(1); Uzokwe V Dansy Ind Ltd (2002) FWLR
(Pt 90) P. 1322
3
1 Woodb. & M53, 3 West. L.J 151, 7F. Cas.197, No. 3662, 2 Robb. Pat.Cas. 303, Merw. Pat.Inv 414
20
20
Only in this way can we protect intellectual property, the labours of the
mind, productions and interest as much a man’s own… as the wheat he
cultivates, or the flock he rears.
The statement that ‘discoveries are …property’ goes back earlier.
The French Copyright law4
stated
‘All new discoveries are the property of the author; to assure the inventor the
property and temporary enjoyment of his discovery, there shall be delivered to
him a patent for five, ten or fifteen years’.
In Europe, French author A. Nion mentioned ‘propriete intellectualle’ in his Driots
Civils des Auteurs, Artistes et Inventeurs, published in 1846.
The term’s widespread popularity is a much more modern phenomenon. It was very
uncommon until the 1967 establishment of the World Intellectual Property
Organisation (WIPO), which actively tried to promote the term. Still, it was rarely
used without scare quotes until about the time of the passage of the Bayh- Dole Act in
1980.-
5
The concepts origin can potentially be traced back further. Jewish Law includes
several considerations whose effects are similar to those of modern Intellectual
Property Laws, though the notion of intellectual creations as ‘property’ does not seem
to exist. –
6
. The Talmud contains the first known example of codifying a prohibition
against the stealing of ideas, 7
However, the legal system of most of the Western world does not have provisions for
Intellectual Property and the laws the term encompasses are justified on more
constrained grounds. The term does not occur in the United States Copyright Statutes,
4 French Copyright Law 1791, Section 1
5 Mark A. Lemley: Property, Intellectual Property, and Free Riding available at http://papers.ssrn.com/sol3/papers.cfm
6 Jewish Law and Copyright available at http://www.nysun.com/article
7 Shulchan Aruch.: dot Communist Manifesto available at http://emoglen.law.columbia.edu/publications/dcm.hml
21
21
except in certain footnotes citing the title of certain Bills. The term used in the
Statutes and in the Constitution is ‘exclusive rights.’
In conclusion, Intellectual Property accords recognition to ownership of property
incorporeal and ownership as a constitutive term is used with reference to such things.
Ownership was defined by Salmond
As the relation between a person and any right that is vested in him. That which a
man owns in this sense is in all cases a right8
.
This shows that ‘things’ has two meanings depending on whether it is used with
respect to physical objects, corporeal things or certain rights, incorporeal things. Dias
stated9
–
That since ownership is only of things, it too is ‘corporeal’ or ‘incorporeal’ which
is but an elliptical way of saying that ownership is of corporeal or of incorporeal
things. This former is to physical objects whilst the latter is to grouping of claims,
liberties etc. in so far as sufficient labour and judgement has been spent in its
creation, the law accords the work as much propriety rights as it does other
corporeal or tangible items such as house, land, goods etc. Hence ‘the sweat of a
man’s brows and the exudation of a man’s brain are as such a man’s property as
the breaches upon his backside10
Eminent jurists such as Sir William Blackstone and Manfield Lord have taken the
view that intellectual creation are to be secured to their producers and their successors
in interest to the same extent as other kinds of property and that the public has no
more right or justification to tamper or impair the originators property in his mental
creations that it has to deprive him of any other of his possessions. Hence, Intellectual
Property is not the mere creature of statute but a natural and civil right entitled to
protection in law.
8
Salmon John: Jurisprudence, 12th Ed, Sweet & Maxwell, London 1966, pg 901
9 Dias R: Jurisprudence, 5th Ed, Butterworths, London, 1985, pg 296,
10 Lawrence Sterge, Tristan Shandy: Copyright, pg 34 quoted in Gardient 88 LOR 507.
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1.3 Meaning of Copyright
‘Copyright’, as a term like most legal concepts is a complex phenomenon, which has
defied an all embracing, comprehensive and universally acceptable definition. It
covers a wide range of subject matters and interests and it requires passing certain
tests before such subject matters could attract protection. The protection offered by
copyright must be able to reflect its attributes. Each of the definitions neglects one
essential attribute or another of copyright. This explains why there is no agreement
amongst writers as to the exact meaning of copyright. The only common thread that
runs through the definitions is that copyright is an exclusive right.
The Copyright Act11 simply defines the term ‘Copyright’ as ‘Copyright under this
Act’12 (there is no such provision in (Cap C28 of 2004 Act).The definition is
inadequate and imprecise, but a painstaking surgery of the length and breadth of the
Act offers the exact scope and nature of the subject matter – Copyright. Copyright in
relation to eligible work is the exclusive right to control, to do or authorise the doing
of any of the acts restricted to the copyright owner- I. J Adenuga V Ilesanmi Press
Sons (Nig) Ltd13
.These are however subject to certain exceptions.14
Copyright is defined as
The right of literary property as recognised and sanctioned by positive law. An
intangible, incorporeal right, granted by statutes to the author or originator of
certain literary or artistic productions, with the sole and exclusive privilege of
multiplying copies of the same, publishing and selling them.15
This depicts Copyright as a personal right, which is not of a tangible nature. Secondly,
it is a creature of statute; thirdly, it is vested in the author or originator of protectable
work. Lastly, it confers exclusive right in relation to an eligible work.
11Copyright Act, Cap C 28 Laws of the federation of Nigeria , 2004.
12 Copyright Act. Cap C 28 Laws of Federation of Nigeria, 2004, S. 39(1)
13 (1991) 5NWLR (PT 189) 82.
14 Copyright Act, Cap C 28 Laws of Federation of Nigeria., 2004. Second Schedule
15 B.A. Garner: Blacks Law Dictionary , 8
th Ed, St Paul Minn West Publishing Co., U.S.A, 2004, P.g304,
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23
The aforementioned ingredients are on all fours with the generality of our copyright
Act. However, this definition (i.e. Blacks Law Dictionary) is circumscribed to ‘certain
literary or artistic’ works only. Copyrightable works mean something more than
‘certain literary or artistic’ works. Under the Act16, the following works are eligible
for copyright that is;
(i) Literary works
(ii) Musical works
(iii) Artistic works
(iv) Cinematograph films
(v) Sound recordings and
(vi) Broadcasts.
In what appears to be more comprehensive definition, the Mozley and Whiteleys Law
Dictionary 17 defines Copyright thus:
Copyright in relation to an original literary, dramatic or musical work is the
exclusive right to do, or authorize other persons to do, certain acts in relation to
that work. Such acts include reproducing the work in any material form, publishing
it, performing it in public, broadcasting it, or making any adaptation of it. This type
of copyright generally speaking, lasts during the lifetime of the author or for fifty
years after his death. Copyright similarly subsists in artistic works, sound
recordings, cinematographic films, and television and sound broadcasts18
Copyright is not a monopoly right. It does not prevent others from creating identical
work provided the identical work is conceived of independently. It is a negative right
to prevent the appropriation of the work of one man by another. – Coreli V Gray 19
16 Copyright Act, Cap C28 Laws of Federation of Nigeria 2004, Section 1(1)
17 Mozleys: Law Dictionary, 8th Ed, Butterworths & Co, London, 1968, pg 87.
18 this definition is patterned on the English Copyright Act 1956 and the Dramatic and Musical Performances Protection Act 1958-
19 (1913) 29 TLR 570,571; Halburys: Statutes of England, 3
rd Ed, Butterworths & Co. London, Vol 7, 1962, pg 130.
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24
This was reinstated in Brazier and Jeffs20
According to Lord Atkinson in Macmillan & Co V Cooper21
The moral bases on which the principle of protective provisions of copyright rests
is the eight commandments ‘thou shall not steal’
It follows therefore that copyright is a right statutorily endowed on the author or
creator of a work eligible for protection.
Copyright has also been defined as an exclusive legal right, held for a certain number
of years, to print, publish, sell, broadcast, perform, film or record an original work or
any part of it22
, this definition gives the wrong notion that the only qualification
required of a work to be protected is originality whereas originality is just but one of
the tests that a work has to pass to attract copyright protection or the exemptions from
copyright control.
According to another writer, copyright is simply the exclusive right to control the
doing in Nigeria of certain acts in relation to the work in which the right subsists 23
,
This does not take into account the fact that the right conferred by copyright is not
perpetual in nature. Another problem inherent in this definition is the absence of the
nature of works in relation to which the right is granted. Another definition of
copyright is the effect that it is the right of an author to prevent others from publishing
or reproducing his work without his consent.
24
, This definition has not only failed to
recognise the fact that publication or reproduction can be made under certain
circumstances without the consent of the author, but it has also
20Clerk and Lindsell: Law of Tort, 15th Ed, Sweet &Maxwell, London, 1982.
21 (1923) 40 TLR186, 187,
22 Hornby A. S: The Nigerian Copyright Act with Introduction & Notes, Sam Bookman, Ibadan, 1994
23 Asien J.O: The Nigerian Copyright Act, Bookman, Ibadan,1994
24 Oke G. D.:The Criminal Liability of a Pirate: Nigerian Copyright Decree 1988, Justice, March 1992
25
25
not indicated that it does not take into cognisance of the non- perpetuity of the right.
One other definition of Copyright is the exclusive right of the owner of certain works
which qualify for protection under copyright to reproduce, communicate to the public
or broadcast, adapt or translate the whole in work or a substantial part of the work
either in its original form or in any other from recognisably derivable from the
original25
, This definition gives the impression that the right conferred on the authors
by copyright is absolutely exclusive. But the numerous exemptions contained in the
Second Schedule to the Copyright Act, have denied the copyright owner of absolute
exclusiveness. Another shortcoming of this definition is its non-recognition of the fact
that the exclusive right is of limited duration.
We shall attempt to modify and adopt Sodipo’s definition by supplying the missing
element thus:
Copyright is the exclusive right belonging to the owners of certain works
which qualify for protection for a limited number of years under copyright to
reproduce, communicate to the public or broadcast, adapt or translate the
whole either in its original form or in any other form recognisably derivable
from the original, except for certain limited purposes.
Prof Okany defines copyright as
The monopoly right conferred by law or an institution to do or to restrain
others from doing certain acts with respect to the author’s original
literary, musical or artistic work26
Another definition is that, Copyright is an economic right granted to the owner, to
enable him control his benefits of communication of the work of his authorship.
25 Sodipo B: Lessons on copyright, the Gravitas Review of business and Property Law; March 1989.
26 Prof Okany: The Nigerian Law of Property; Fourth Dimension Publishers, 1st Ed, Enugu, 1986, pg 983,
26
26
Copyright is mainly concerned with the negative right of preventing the copying of
physical material in the field of literature.
Copyright does not involve or affect the ideas one has until, it is put down in a
concrete form. Before 1970, there were no Copyright Laws in Nigeria. The Nigerian
Copyright Law was contained in the Imperial Statute that is the Copyright Act27
,
which was extended to Nigeria by Order in Council. The Imperial Statute contained a
number of inadequacies, which were unsatisfactory. It recognised the right of
copyright owners, but did not contain commensurate remedies for these rights when
infringed upon.
Copyright is the right of an author to control the reproduction of his intellectual
creation. It prevents others from reproducing his personal expressions and creation
without consent. Copyright Act as it is presently configured recognises all the
pecuniary and moral prerogatives due to the author. In this sense, copyright is more
often than not recognised as legislation in spelling out the legal and moral rights,
privileges and obligations of authors, assigns of Copyright, users of creative work and
even society itself.
It may be noted that Copyright is a monopoly right and its monopoly lies in the
general benefits derived from the labours of authors. It is the equivalent given by the
public for the benefit bestowed by the genius and meditations and skill of the
individual and the incentive for further effort for the same important object.
However, the foundation of all rights of this description is the natural domination
which every one has over his ideas, the enjoyment of which although they are
embodied in visible forms or characters, he may if he chooses, confine to himself or
impart to others
27Copyright Act 1911
27
27
but as it would be impractible for civil society to prevent others from
copying such characters or form without intervention of Positive Law
and such intervention is highly expedient, because it tends to the
increase of human culture, knowledge and convenience, it has become
the practice of civilized nations in modern times to secure and regulate
the otherwise insecure and imperfect right which according to the
principles of natural justice belong to the author of new ideas28
.
Suffice to mention that presently in Nigeria the Copyright Act29grant the exclusive
right to control the doing in Nigeria, in the case of (a) literary or musical works such
acts as:
(i) Its reproduction in any material form
(ii) Publication
(iii) Public performance
(iv) The production, reproduction, performance or publication of
its translation etc
In the case of (b) an artistic work, -S. 5 (1) (b). Its
(i) Reproduction in any material form
(ii) Publication
(iii) Inclusion in any cinematography film etc
The Concise Oxford Learner’s Dictionary30 defines “control” as power or authority to
direct order or restrain. The same book describes ‘own’ as a word to
2
Bouvier’s: Law Dictionary, 3rd Ed, Sweet & Maxwell, London, 1956, pg 89,
29 Copyright Act No 47 1988, S. 5(1)
30 Hornby A. S: Oxford Advanced Learners Dictionary, 6th Ed, Oxford University Press, London, 2001, pg 206,
28
28
give emphasis to the idea. These terms are highly illustrative of what is meant by
Copyright. In a particular case of Hellinrake V Trustwell31
,
It was expounded by Lindley J in that case
That copyright does not extend to ideas or schemes or methods, it is
confined to their expressions…
However, it will be pertinent to state that a Copyright is a right incorporeal i.e. not
tangible. This is quite different from rights in land and rights arising from contractual
relationship.
However, the Act32 provides a requirement for works, which are eligible for
copyrights, is that sufficient efforts must have been expended in making the work to
give it an original character33
The commitment to creativity has been universally recognised and given official
expression in the Universal Declaration of Human Rights which states as follows:
Everyone has the right to freely participate in the cultural life of the
community to enjoy arts and to share in scientific advancement of
the benefits; everyone has the right to the protection of the moral
and material interests resulting from any scientific, literarily or
artistic production of which he is the author34
31 (1894) CHD 420 AT 427
32 Copyright Act Cap C 28 Laws of the Federation of Nigeria 2004, S. 1(2)
33 Copyright Act Cap C 28 Laws of the Federation of Nigeria 2004, S. 1(2) (a)
34 Article 27 of the Universal Declaration of Human Rights, 1948
29
29
1.4 Rationale for Copyright Protection
This shows the reason for copyright protection. In other words why copyright
protection? The answer to this question is that copyright is a property, which like any
other kind of property should be protected by law for the general good of the owner
and society. This answer begs the question: what is property?
The concept “property” has changed significantly over time. Thus, property,
scientifically defined, is the jural relationship between two or more persons in relation
to a thing. It is not the thing itself but the right to use and enjoy the thing. It includes
the right to exclude others from using the thing. But to many laymen, when we talk of
property what readily comes to mind is the tangible property such as a house, car,
table, etc. people, particularly laymen, rarely think of other types of intangible
property such as rights, privileges, immunities, duties, obligations, etc. in some cases
both lawyers and laymen rarely think of modern property such as Trademarks,
Copyright, Patent, Shares, Gratuities, Pension, Labour and Expectation.
Copyright Protection on Economic Basis
According to the Copyright Act, the following works are entitled to copyright
protection:
(a) Literary works
(b) Musical works
(c) Artistic works
(d) Cinematograph film
(e) Sound recording, and
(f) Broadcasts35
In the modern conception of property, all works mentioned above are property and,
35 Copyright Act Cap C 28 Laws of the Federation of Nigeria, 2004, S. 1(1)
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therefore, deserve to be protected. They properly belong to the broad division of the
institution of “Private Property”. By Private Property, we mean property in which the
proprietary interest is invested in an individual for his use and enjoyment. The owner
of a Private Property has the right to exclude anybody from the use and enjoyment of
his property. Economically, therefore, Property means Wealth, Power, Capital, Office
etc. For example, an owner of a copyrightable literary work, has wealth in the book he
wrote. One of the cardinal objectives of copyright protection is to prevent unjust
enrichment by one from the sweat of another. That is to say, copyright law frowns at a
freeloader. It encourages creativity, innovation, craftsmanship, originality, labour, and
productivity. All theses are economic bases for the Copyright Law.
This has been succinctly summarised in the statement that
Nothing can with propriety be called a man’s property than
the fruit of his brains. The property in an article or substance
according to him by reason of his own mechanical labour is
never less arduous and consequently no less worthy of the
protection of law36
Again reiterating and emphasizing the principle that the products of labour and
exertion of mental faculty deserve to be granted property rights, Laurence Sterne
bluntly spelled out the need for protection of Copyright as follows:
you may find it in fragments of Gregorius and
Hermomogene’s codes, and in all the Codes from Justinian
down to the Codes of Linus and Des Eaus… that the sweat of
a man’s brains, are as much a man’s own property, as the
36 Copinger And Stone James: Copyright, Sweet and Maxwell, London, 1958, p2
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31
breeches upon his backside.36
In a nut shell, the utmost aim of the Copyright is to protect the property owner of a
Copyright work by seeing that his labour is not unjustifiably expropriated or reaped
by people who are not the producers of such labour. The economic bases of the
copyright law is the making sure that people who make inventions secure the Pride,
Reward, Encouragement and Incentive of their Labour. To this end, there is a great
relevance with the philosophy of John Locke when he said:
Though the earth and all inferior creators be common to all
men, yet every man has a ‘Property’ in his own person: this
nobody has any right to but himself. The labour of his body,
the product of his brain and the work of his hands are
properly his. Whatsoever then, he removes out of the state
that nature has provided and left it in, he has mixed his
labour with it, and joined to it something that is his own,
thereby makes it his property. It being by him removed from
the common state of nature places it in it that excludes the
common right of other men. For this labour being the
unquestionable property of the labourer, no man but he can
have a right to what that is once joined to, at least where
enough is, and a good left in common for others.37
The word ‘Labour’ economically means production, invention, creation, hard work,
multiplication and innovation. The true essence of copyright law is the encouragement
__________________________
36 Gardner: Copyright, Butterworths, London 1896, pg 91
37 John Locke: Treatises of Government, Sweet & Maxwell, London, 1690, pg 76 ( also quoted in Richard Schlatter: Private
Property, The History of an Idea, Rutgers University Press, New Brunswick, New Jersy, 1951 p54)
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32
of creativity, innovation and invention through hard labour either mentally or
physically. The fruits of such labour should be reaped by persons or people who sow
them. That is the whole corpus juris of the Copyright Law.
Thus, it is criminal, fraudulent and cheating to do any acts or omission, which will
deprive an owner of a copyrightable work the benefit of his labour. To this effect,
Section 15 of the Act38, which deals with the infringement of copyright has prohibited
any person without the licence or authorisation of the owner of the copyright, from
doing or causing any person to do an act of which is controlled by copyright. Such
acts include importation and sale of infringing articles.
Other infringements include possessing or making of plates, master tapes, machines,
equipments and contrivances used for infringement of copyright; permitting a place of
public entertainment or business to be used for an infringing performance or causing
to be performed, for the purpose of trade or business any work in which Copyright
subsists39
.
The economic jurisprudence behind the Copyright Law is nothing other than the need
to secure economic advantages for owners of Copyright in particular and society in
general. To this end it has been remarked that:
The protection of a person with a valuable talent would tend
to confer benefits upon society if that protection encourages
the person to practise his skill within the state. This is a
useful tool in… encouraging the spread of new techniques.40
38Copyright Act Cap C28 Laws of Federation of Nigeria, 2004
39 Copyright Act Cap C28 Laws of the Federation of Nigeria 2004, Section 15. (This is also provided in S. 19 of the Act)
407Miller and Davis: Intellectual Property; Patents, Trademarks and Copyright, West Publishing Co, St Paul, Minnesota,
1983, Pg6.
33
33
The conditions precedents to modern development are the provision of incentive to
owners of labour, either manually or mentally. For this reason, another proponent for
copyright protection has this to say:
Copyright law wants to give any necessary support and
encouragement to the creation and dissemination of fresh
signals, or messages to stir human intelligence and
sensibilities. It recognises the importance of these excitations
for the development of individuals and society. Especially, is
Copyright directed to those kinds of signals which are in
their nature fragile… so easy of replication that incentive to
produce would be quashed by the prospect of rampant
reproduction by freeloaders. To these signals, Copyright
affords what to be have been called ’headstart’ that is a group
of rights amounting to qualified monopoly running for a
limited time41
.
Hence, copyright is a fragile property, which depends on the help of law for the
protection of the real owner.
It is because of this recognition of the helplessness of the real owner that the
constitution of United States of America, for example provides that:
The Congress shall have power to promote the progress of
science and useful Arts by securing for a limited time to
authors and inventors the exclusive right to their respective
writings and discoveries42
.
41 Choate, Francis and Collins: Cases and Materials on Patent Law including Trade Secrets- Copyright – Trademarks; 3
rd
Ed, West Publishing Co., St Paul Minnesota, 1987; Pg 800-801.
42 Constitution of the United States of America, Art. 1 Section 8, Clause 8
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34
It is regrettable that the 1999 Nigerian Constitution did not contain such an express
provision on Copyright. The Nigerian Copyright Law is not therefore, anchored on
the Constitution, but on the Copyright Statute simpliciter. It is suggested at this stage
of this paper, that the omission should be corrected whenever opportunity presents
itself for a revision of the country’s Constitution43
.
Property Rights and Culture
Copyright is one of the most important property rights recognised by modern property
concepts.
In the English conception of the words, ‘Property Rights’ mean ‘Ownership’. In
Jurisprudence, Ownership means the totality of interest in a thing. This includes the
Right to Reversion, the Right to Alienate, the Right to Possession, the Right to Use
and Enjoyment and the Right to Destroy the Thing. An owner of Copyright has all
these rights.
Economically, “Property” means ‘Wealth and Capital’. Politically, it means ‘Power,
Liberty and Submission to the Will of an Owner’. It also means ‘Independence, and
Freedom’. Socially, it means ‘Egoism, Recognition and Status.’
According to the Scholars of Law and Economics, people are rational maximizers of
their self-interest and the goal of the Legal System should be merely to facilitate their
ability to pursue their self-interest44 Copyright Law being the law that has its origin,
concept, ideology, and philosophy from the Western Capitalist system of political
economy, it seeks to maximize the interest of Copyright owners. Economic
importance is therefore; highly attached to the law to secure maximum economic
benefit to owners of works eligible for Copyright protection. Diametrically opposed to
43 The 1999 Constitution of Nigeria also does not include such a provision.
44 J. W. Singer: Legal Realism Now : Review Essay, Unpublished, Boston University; Boston, 1987, Pg. 88.
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35
this goal, is the African concept of property right, of which Nigeria is part. Culturally,
the African concept of property rights is Communalistic, Socialistic and Collectivistic.
In western jurisprudence, it is akin to the Utilitarian Theory of Property, which
advocates maximum happiness to the greatest number of people and minimum
displeasure to the maximum number of people.
Culture, it is said, is the way of life of a particular group of persons or society. African
way, of which Nigeria is a part, is Collectivistic, Socialistic, Communalistic Altruistic
and Utilitarian.
As we have already observed above, long before the arrival of Europeans into the
geographical area now called Nigeria, some of the works that are now eligible for
copyright were actively practiced or performed. For example, ‘weaving, pottery,
sculpture, crafts, arts, drama, music, dance, smithry’, etc. there were no Copyright
Laws to protect creators and innovators of these varieties of Copyrightable works as it
is today. Because of Nigerian Culture, it was even doubted whether such laws, if they
existed, ever had impact on the society. This doubt is expressed because of the total
lack of economic motive or interest by creators, innovators and inventors of these
works, which are now protectable by Copyright Law. To the owners of such works
e.g., musical or artistic, the product of their labour was to provide happiness to the
maximum number of people. It was for entertainment and pleasure. It was Socialistic,
rather than Economic. This is notwithstanding the gifts which participants of such
social gatherings poured on singers, dancers, and drummers whenever there were
ceremonies e.g. Marriage, Naming, Burial and Harvest.
Secondly, there were no personal property rights as known to English Legal System
like, say Ownership of Songs, Music and Poems. Artistic works were never controlled
by their composers. People imitated one another freely and openly with impunity. It
was a thing of pride on the part of the originators of such works to hear other persons
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36
imitate their songs or arts. The Cultural and Social effects of such imitations were to
boost the ego and moral of the original authors of such works. It had no economic
consequences or motive.
Thirdly, because of the interactions and contact with the outside world and the
emerging notion of a global village, it becomes inevitable for us in Nigeria to shift
away from the age-old concept of property rights to one, which is more
individualistic. This is necessary if copyright law is to have any impact on the bases
of individual rights or the maximization of their copyright interests. Today,
photocopying, piracy and other unauthorised reproductions of copyright works are
rampant with disregard for the interests of copyright owners. Infringement of
Copyright works has become a culture, especially in the entertainment industry. The
perpetrators often anchor their atrocious acts of infringements on cultural grounds
such as free entertainment, the boosting of the author’s ego and morale. According to
Nigerian Culture, there is no necessary link between economic interest and
Copyrightable works. Because of this cultural background, the infringers of Copyright
Law do not know the incalculable harm they cause to bear on authors of such
Copyrighted works. Notwithstanding the enormous resources expended by Copyright
owners in legitimately producing their works, Copyright infringers see themselves,
culturally, as persons who are promoting the ego and moral of the original authors,
forgetting the economic harm they cause to owners and society as a whole. They
hardly realise that societal values are changing along with the society. The old
property concept which gave little or no regard to the economic interest of Copyright
owners has given way to the new concept of property rights whose aim is to maximize
the economic self-interest of the original owners of Copyright works.
In my view therefore, Nigerian Culture is a hindrance to the development of an
effective law for the protection of copyright works. This is because Nigerian culture
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37
hardly recognises the changes in modern property right that place much emphasis on
the economic interest of Copyright owners. All the protected rights are not merely for
entertainment, festivities and ceremonies. Nigerian Culture should take cognisance of
the fact that copyright is similar to rights such as in shares, debentures, pensions,
security, capital, wealth and gratuity. These rights mean a lot to someone who has
them. They are means of realising his or her ‘personhood’. They should not, therefore,
be treated with levity.
1.6 Nature, Subsistence and Scope of Copyright
The modern concept of Copyright Act postulates that the primary purpose of
Copyright is to promote the public welfare by the advancement of knowledge with the
specific intent of encouraging the production and distribution of new works for the
public; it provides incentive for creators by granting them exclusive rights to
reproduce and distribute their works. Copyright protection is not intended to inhibit
free flow of information and ideas. As observed by the United States District Court in
Gero V Seven –Up Company7 the goal of Copyright protection is to encourage
dissemination of ideas by protecting the embodiment or expression of an idea in a
creative work and reserving the right in it to the creator of the work. What is being
advanced here is the optimisation of the economic interest in his work. A matter of
fact, a creator of Copyright work expends some labour and skill in his creation. This
human intellectual effort is worthy of protection from undue appropriation by those
who would like to reap from where they did not sow, as rightly noted by the court in
Oladipo Yemitan V Gbenga Odusanya8 the function of Copyright Act is to protect
7 535 F.Supp 212, 215 USPQ 512
8
(1980) FHCR 180
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38
from annexation by other people the fruits of another’s work, labour, skill or taste.
But it must be re-emphasized that the rights granted by copyright protection are
subject to important limitations nearly all of them relating to the basic purpose of
advancing knowledge for the general welfare of society. From its statutory beginnings
in early eighteen century England, Copyright has been the product of a precarious
attempt to balance the rights of users, present and future.
As a general rule copyright comes into existence at the moment of a work’s creation
just as in theologies, the soul enters the body at birth. At that time ownership vests in
the author or authors.
No formalities are required under Nigerian Act for the grant of Copyright. The Act is
founded on the belief that such right are the natural outflow from the very act of
creation.9 Copyright is conferred from the moment all the requirements stipulated in
the relevant sections of the Copyright Act are satisfied.
In ICIC (Directory Publishers) Ltd V Ekko Delta Nigeria Ltd & Anor10 it was
held that mere deposit of copies of a work with the National Library as required under
the National Library Act does not confer any right of authorship of copyright on
anyone. Such a deposit may help to prove ownership but this is by no means
conclusive and where the depositor has no copyright the mere fact of depositing a
copy with the National Library or any other agency is irrelevant.
In compliance with international standards in the book industry, the National Library
encourages all publications emanating from Nigeria to bear the coded numbers
identifying the particular works. The code is either the ISN (International
Standardized Book Number) for serials. Both sets of numbers are administered and
controlled by the National Bibliographic Control Department of the National Library
9
Miller V Taylor 4 BURR 2303, or 98 ER 201 (1769). Also the dissenting opinion in the US case of Wheaton V Peters 33 US
(8 Pet.) 59 (1834).
10 (1977) 3 FHCR 346
39
39
and do not on their own confer copyright on the owners. While authors may, if they
so wish, notify the Nigerian Copyright Commission of any work they make or
publish, they are not obliged to deposit or register any of their works with the
Commission.
Under the Universal Copyright Commission (UCC) a Copyright Notice is required to
be affixed to every work in order to gain protection in another member country
different from the one in which it is published. The notice consists of an encircled ‘C’
followed by the name of the copyright owner and the year of publication, for example,
© X.Y Okeke 1999. The United States Copyright11 requires the insertion of the year
of completion of the work if unpublished. The Copyright Notice is normally displayed
in a place where it can be seen; for book or the foot of a one-page work. In essence,
the position of the Copyright Notice has to give reasonable notice of the claim of
Copyright and should not be put in an inside corner in the back of a book or in a
difficult to locate position on a work12 Although Nigeria is a member of the Universal
Copyright Convention, no provision appears to exist in our Domestic Law or Act for
the mandatory use of this Notice. However, authors as a matter of practice always put
the appropriate Copyright Notice on their works. In addition to other obvious
advantages, it serves to forestall a possible defence of innocent infringement since an
infringer who is presumed to have seen the notice cannot claim ignorance of the
copyright status of the work.
The symbol © or ‘copyright’ may also be used for works other than sound recordings
in phonorecords where the appropriate symbol is (p).
The basic features or characteristics of copyright are as follows:
(a) It is an intangible property. In other words, it’s
11 United States Copyright Act 1976, S. 401(b)
12 United States Copyright Act 1976, S. 401(c)
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40
protection is limited to those rights granted – limited
protection principles.
(b) It is conferred by statute.
(c) It concerns intellectual property especially in the field
of literature and the arts.
(d) It has a fixed duration
(e) It is a personal right belonging either to an individual
or group of individuals, primarily the author or
originator of a protectable work.
(f) It confers exclusive right in relation to an eligible
work.
(g) It protects the work for the market- market principle.
It does not preclude others from making reasonable
use of the work, thus allowing a competing author’s
use of Copyrighted work in creating another (Fair Use
Principle).
(h) Copyright entails the right of the public access to the
Copyrighted work as a quid pro quo for the statutory
grant of monopoly rights when they are exercised- the
right of access principle.
(i) Copyright does not prohibit an individual’s personal
use of the work- Personal Use Principle
(j) It is primarily to the benefit of the public interest and
only secondary to the benefit of the author- Public
Interest Principle.
41
41
Subsistence of copyright
It is not all manner of works that are protected by Copyright. The categories of
protected works specified by the Copyright Act13 these are:
(a) Literary works
(b) Musical works
(c) Artistic works
(d) Cinematograph films
(e) Sound recordings
(f) Broadcasts14
Literary Works
What is meant by literary works? The Act described the phrase ‘literary works’ to
include, irrespective of literary quality, any of the following:
(i) Novels, stories and poetic works
(ii) Plays, stage directions, film scenarios and
broadcasting scripts
(iii) Choreographic works
(iv) Encyclopaedias, dictionaries, directories and
anthologies
(v) Letters, reports and memoranda
(vi) Lectures, addresses and sermons
(vii) Law reports, excluding decisions of courts
(viii) Written tables or compilations15
One striking feature of the foregoing provision is that it has given literary works a
13 Copyright Act Cap C 28 Laws of the Federation of Nigeria, 2004,
14 Copyright Act Cap C 28 Laws of the Federation of Nigeria 2004S. 1(1)
15 Copyright Act, Cap C 28 Laws of the Federation, 2004, S 51
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42
very extended meaning, thereby accommodating certain works that would ordinarily
not have qualified to be called a Literary Work. For instance, such things as Street
Directories and Stock Exchange Lists, Lists of Football Fixtures and Pools Coupon,
Examination Questions, etc, are regarded as Literary Works16. Ordinarily, certain
factors, such as style, form, content, aims and objectives, length, and general literary
style have to be taken into account before a work can be properly described as a
literary work. But going by the provision under discussion all these factors are
irrelevant in determining a literary work. A literary work does not need to have some
measure of literary quality. It is equally irrelevant whether or not the work is
published.
Originality and fixation
However, for a literary work to be eligible for copyright protection, it must be original
and fixed in any definite medium of expression17. In other words, a literary work will
qualify for copyright if it is able to meet the requirements of originality and fixation.
Originality here does not mean inventiveness or novelty. It simply means ‘not
copied’. For instance, a compilation by Abu of the results and scores of football
matches in the World Youth Championship would be an original literary work,
notwithstanding the fact that the information is freely available to anyone who resorts
to the relevant sources (e.g. newspapers, television, radio, etc.). It is immaterial if
Bala had earlier on undertaken the same compilation. Here each of them has created
an original literary work, albeit both works are identical. Each of the two works
attracts independent copyright because none is copied from the other. Rather, each
author had to use his own skill, effort and judgement to do the compilation. In other
16 Dworkin and Taylor: Black’s Guide to the Copyright, Blackstone Press Ltd, London, 1950 ; Designs, and Patents Act, 1988,
17.Copyright Act, Cap C 28 Laws of the Federation of Nigeria, 2004, S1(2) also Sodipo B.: Lessons on Copyrigh; The Gravitas
Review of Business and Property Law, March, 1989.
43
43
words, a work will pass as original only if the author has expended his own skill,
judgement, effort and labour to create the work. It is all this expenditure that entitles
the author of the work to a reward by way of granting him limited monopoly over his
work by copyright. In fact this is the main reason behind copyright protection.
Although the list of works classified by the Act as literary works appears exhaustive,
it is doubtful if our courts will not when the need arises, extend the list to include
similar works not specifically mentioned by the Act. For instance, Diary is akin to
Reports, Memoranda, etc, but is not expressly mentioned by the Act. So also is
Mathematical Formula similar to Mathematical Tables and yet not mentioned.
The second requirement for eligibility for copyright protection as a literary work is
that of fixation. Fixation here does not necessarily mean that a literary work must be
in writing for the purpose of copyright protection. Any form of recording such as
“painting, tape recording”, etc, will suffice, as long as it can be perceived, reproduced
or otherwise communicated either directly or with the aid of any machine or device.
In other words, the work must be in tangible form. The rationale for this requirement
is obvious. To prove an infringement of a copyright, both the infringed and the
infringing copies of the work must be produced for the purpose of comparism in
determining whether or not an infringement has infact been committed. If the work is
not reduced into a tangible form, it will be impossible for the owner to prove its
existence, let alone that it has been infringed.
The recording need not be done by the author of the work; it can be done by anybody,
even without the consent of the author. For instance, Tom makes a political speech
which unknown to him was recorded on tape by Jane. Since the speech is now
recorded, it has passed the test of fixation and therefore qualified for copyright
protection. In this case Jane acquires the copyright in the sound recording while the
copyright in the literary work will accrue to Tom. In the event that someone takes the
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44
words from the recording and prints them in a newspaper without permission, it is
only Tom that has the locus standi to sue that person for the infringement of his
literary work. This is so because Jane’s copyright in the sound recording has not been
breached since the sound was not recorded or reproduced but the words used by Tom
were reproduced in the same form, there is no doubt that his copyright in the work
(speech) has been infringed.
Musical Works
The Act’s definition of musical works is of little or no assistance in stating the exact
meaning of the words. It depicts ‘musical work’ to mean any musical work,
irrespective of musical quality and includes works composed for musical
accompaniment18. Music has been described as any conventional and repeatable
inscription or record of vocal or instrumental expertise, which contains the
recognisable elements of tone, pitch and rhythm19. A musical work is not any
particular performance or recording of the music but its composition. A sound
recording and the music played in the sound recording are two different copyright
works. Sound recording attracts its own copyright while the music constituting the
sound attracts yet another copyright. What is protected in the former is not the sound
but the recording of it whereas in the latter, it is the music and the recording of it that
is protected. They are quite distinct and separate types of copyright work.
It is to be noted that adaptation of a musical work attracts its own copyright in the
same manner as an adaptation or translation of a literary work, provided that in any
case, sufficient skill and effort have been expended upon the translation. The word
adaptation is interpreted by the Act to mean the modification of a pre-existing work
from one genre of work to another and consists in altering work in the same genre to
18 Copyright Act, Cap C 28, Laws of the Federation of Nigeria, 2004, S.51(1)
19 Philips, and Karet: Whale on Copyright, 4
th Ed, Sweet and Maxwell Ltd, London, 1993.Pg 92
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make it suitable for different conditions of exploitation, and may also involve altering
the composition of the work.
It is worth noting the requirements of originality and fixation in the case of literary
works are also applicable to musical works. However, as regards the fixation, if the
musical work is in writing, it must contain the musical notes so as to distinguish it
from an ordinary literary work.
Artistic Work
According to the Act, artistic works include, irrespective of artistic quality, any of the
following works or works similar thereto:
(i) Paintings, drawings, etching, lithographs, woodcuts,
engravings, and prints
(ii) Maps, plans and diagrams
(iii) Works of sculpture
(iv) Photographs not comprised in a cinematograph film
(v) Works of architecture in the form of building models
and
(vi) Works of artistic craftsmanship and also (provided that
the original intention of the author was not to use it as
a model or pattern to be multiplied by any industrial
process) pictorial woven tissues and articles of applied
handicraft and industrial art20
From the foregoing, it is obvious that an artistic work has been given an extensive
definition. Unlike the literary and musical works, the list of artistic works is
inexhaustive as the definition expressly accommodates not only those listed in the Act
20 Copyright Act, Cap 28 Laws of Federation of Nigeria, 2004, S.1 (3) and 51(1)
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but it also admits similar works. All the works classified as artistic in the Act are
protected irrespective of their artistic quality. Consequently, very simple drawing may
qualify for copyright protection under this heading. However, the simpler the
drawing, the heavier the burden of proof, that the reproduction is a copy of the
original. In other words, the simpler the drawing, the more exact must be the
reproduction to constitute an infringement.
The main problematic aspect of the definition of artistic works is that it does not
recognise building models and not the buildings themselves that are protected. And
yet houses can be built without building models. Perhaps, the omission of buildings is
an oversight by the draftsman.
Another problematic area is that of photographs. The Act states that the author of a
photograph is the person who took the photograph -i.e. the photographer. It
necessarily follows then that he is also the owner of the copyright in the photograph,
in the absence of any contrary agreement21. This means that the photographer can
decide to deal with the photograph in any way he pleases such as issuing it to the
public, exhibiting it or showing it in public, etc. If the photographer deals with it in
such a way that the person who commissioned him to take the photograph finds
objectionable, what will be his remedy? From the position of the Act, the
commissioner has no legal protection. This is far from satisfactory.
Again, the requirements of originality and fixation in literary and musical works are
also applicable to artistic works for copyright protection22
Cinematographic Film
This has been interpreted by the Act 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
21 Copyright Act, Cap C 28, Laws of the Federation of Nigeria, 2004, S.10 (1)
22 Copyright Act, Cap C28 Laws of the Federation of Nigeria 2004, S.1 (2)
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reproduction, and includes the recording of a sound tract associated with the
cinematograph film. From this definition, the Act has clearly provided for magnetic
videotape, videodiscs and any subsequent technological developments, by defining
cinematograph film as a recording on any medium from which a moving image may
by any means be reproduced. The Act goes further to make the sound tract of a film
part of the film; thereby denying such sound recording the protection of copyright it
ordinarily would enjoy. This does not mean, however, that if the sound is separated
from the film it will not enjoy its normal protection but that if incorporated into a film,
it will become part and parcel of the film. It follows, therefore, that the sound track of
a film may be capable of dual copyright interests- film and sound recording copyright.
Sound Recording
According to the Act, sound recording means the first fixation of a sequence of sound
capable of being perceived aurally and being reproduced but does no include a sound
track associated with a cinematograph film. This definition encompasses all types of
recorded sounds from which the sounds may be reproduced, such as records,
cartilages, cassettes, compact discs, digital audiotape and any other new device the
recording industry may come up with in future. It is clear from the definition that
sound, per se, does not qualify for copyright protection but the recording of the sound.
It goes without saying that the recording of any sound, however unoriginal the actual
sound being recorded, will qualify for copyright protection provided that such
recordings not merely copying a previous recording. There could, therefore be
multitude of separate copyrights in the recording of the same sound. For instance,
many people may each make independent recording of similar or identical sounds
It is also evident from the definition that there is no copyright in a recording that
merely copies a previous recording. For instance, if Anne tapes the disc she has
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borrowed from Bola, she will be indirectly copying Bola’s recording. This appears to
be inconsistent with the provision of Section 1(4) of the Act, which provides that a
work shall not be ineligible for copyright protection by reason only that the making of
the work or the doing of any act in relation to the work involved an infringement of
copyright in some other work. But a careful perusal of the definition will reveal that
there is no inconsistency between it and the provisions in question. The definition
stipulates that ‘first fixation’ is a prerequisite for copyright protection of sound
recording. In the above example, Anne’s recording is definitely not the ‘first fixation’
of a sequence of sound and has therefore not satisfied the requirement for copyright
protection and not necessarily because it had infringed the copyright in the original
sound recording made by the recording company.
It is to be noted that although it is the recording of music that is of the greatest
commercial significance, sound recording are not confined to music. As stated earlier,
there is a distinction between the copyright in the original musical work (i.e. the
composition) and the copyright in the particular recording of the music. These
copyrights are usually owned by different persons.
Broadcast
This is described by the Act as sound or television broadcast by wireless telegraphy or
wire or both or by satellite or cable programmes and includes rebroadcast. Broadcast
differ from other copyright works because they are transient and intangible in form
despite the fact that the content of the broadcast can be reduced into or recorded in a
permanent form. It is to be noted that the copyright in the broadcast is quite distinct
from any copyright in the content. For instance, if it is a film or play being broadcast,
the copyright is in the film or dramatic work. Many broadcast such as live sporting
events, have no copyright content in all but there is still a copyright in the broadcast
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itself. This copyright is capable of being infringed such as by recording it for other
than private use.
The broadcast may be of visual images, sounds or a combination of the two (as in
television) or just sounds (as in radio) or other matter (e.g. computer programmes in
electronic form.
Scope of Copyright
The scope of copyright is dependent upon the subject matter of copyright concerned.
We will briefly outline the rights specifically conferred by the Act on the owners of
the various copyright works. The Act confers on the copyright owner an exclusive
right to control the doing in Nigeria of any of the following acts in relation to the
work concerned:
(a) Literary and Musical Works
i. Reproduce the work in any material form
ii. Publish the work
iii. Perform the work in public
iv. Produce, reproduce, perform or publish any
translation of the work
v. Make any cinematograph film or a record in
respect of the work
vi. Distribute to the public; for commercial
purposes, copies of the work, by way of rental,
lease, hire, loan or similar arrangement
vii. Broadcast or communicate the work to the
public by a loud speaker or any other similar
device
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viii. Make any adaptation of the work
ix. Do in relation to a translation or an adaptation
of the work; any of the acts specified in relation
to the work in sub-paragraphs (i) to (vii) 24
(b) Artistic Works
(i) Reproduce the work in any material form
(ii) Publish the work
(iii) Include the work in any cinematograph film
(iv) Do in relation to an adaptation of the work
any of the acts specified in sub-paragraph (i)
to (iii) above25
(c) Cinematograph Film
i. Make a copy of the film
ii. Cause the film, in so far as it consists of visual
images to be seen in public and, in so far as it
consists of sounds, to be heard in public
iii. Make any record embodying the recording in
any part of the sound track associated with the
film by utilising such sound track
iv. Distribute to the public, for commercial
purposes copies of the work, by way of rental,
lease, hire, loan or similar arrangement26 The
doing and authorising the doing of any of the
24 Copyright Act, Cap C 28 Laws of the Federation of Nigeria 2004, S. 6(1) (a)
25 Copyright Act, Cap C 28 Laws of the Federation of Nigeria 2004, S. 6(i) (b)
26 Copyright Act, Cap C 28 Laws of the Federation of Nigeria 2004, S.6 (1) (C)
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foregoing acts are in respect of the whole or
substantial part of the work either in its
original form or in any form recognisably
derived from the original, but not the right to
control the reconstruction in the same style as
the original of a building to which the
copyright relates27 This provision appears
inconsistent with that of Section 51 (1), which
confers architectural works to be protected to
building models and not the buildings
themselves. There is need to reconcile these
provisions to avoid uncertainty.
(d) Sound Recording
i. The direct or indirect reproduction,
broadcasting or communication to the public of
the whole or substantial part of the recording
either in its original form or in any form
recognisably derived from the original;
ii. The distribution to the public for commercial
purposes of copies of the works by way of
rental, lease, hire, loan or similar
arrangement.28
(e) Broadcasts
i. The recording and re-broadcasting of the whole
or a substantial part of the broadcast
27
. Copyright Act, Cap C 28 Laws of the Federation of Nigeria 2004, S. 6(3).
28 Copyright Act, Cap C 28 Laws of the Federation of Nigeria 2004, S. 7(i).
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ii. The communication to the public of the whole
or a substantial part of a television broadcast,
either in its original form or in any form
recognisably derived from the original
iii. The distribution to the public for commercial
purposes, of copies of the work, by way of
rental, lease, hire, loan or similar arrangement29
1.6 Criteria for Protection
Having come this far we consider it imperative to consider (albeit briefly due to lack
of space) the general criteria for copyright protection. While discussing the subject
matters of copyright, particularly literary, musical and artistic works, we mentioned
the works, to earn copyright protection, have to pass the originality and fixation tests.
In addition to these tests, a work qualifies for protection by reference to
(a) The author or
(b) The country of origin (i.e. in which the work was first
published, or in the case of a broadcast or cable
programmes, the country from which the broadcast was
made or the cable programme was sent.)
The Author
The work must have been created by a person qualified to do the work. Here, it means
that the author must either be a citizen of Nigeria or he must be domiciled in Nigeria,
and in the case of a body corporate, which owns the copyright, the body must have
been incorporated in Nigeria. Where the author is not a qualified person, then the
work must have been first published in Nigeria
23 Copyright Act, Cap C 28 Laws of the Federation of Nigeria 2004, S.2 and 3
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The Country of Origin
For a foreign work to be eligible for copyright protection in Nigeria besides satisfying
the requirements of originality and fixation:
(i) The country from where the work emanates must be
listed in the 1972 Copyright Reciprocal Extension
Order or any other Order made pursuant to S. 33 of
the Act: and
(ii) The author must be a citizen of or must be
domiciled in one of the listed countries (otherwise
known as Convention countries) or the body
corporate owner of the copyright in the work must
have been incorporated under the law of such a
Convention country, or the work must have been
first made or published in the Convention country
It must be noted however that copyright notices are important also because of their
evidentiary value. For instance, they raise the following rebuttable presumptions in
any action for an infringement of copyright in a work:
(a) That copyright subsists in a work, which is the subject
matter of an alleged infringement.
(b) That the plaintiff is the owner of the copyright in the
work
(c) That the name appearing on a work purporting to be
the name of the author is the name of the author.
(d) That the name appearing on a work purporting to be
that of the publisher or producer of a work is the name
of such publisher or producer.
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(e) Where the author is dead, that the work is an original
work
(f) That it was published or produced at the place and on
the date appearing on the work
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