Copyrights Basics

1. What is copyright?

Although the Copyright Act does not offer a good definition of the term “copyright”. However it may be defined simply as the right granted by law to the author of a work or the subsequent owner of those rights to control the doing of certain acts in relation to the work. These acts are further elaborated in the Copyright Act.

The following are some of the characteristics identified with copyright in Nigeria:

(a)  It is an intangible property.

(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 generally belongs to an individual or group of individuals and, therefore, is a private right.

2. How does copyright relate to other forms of intellectual property?

Generally speaking, copyright subsists in works of the intellect and to that extent it is also an intellectual property (IP). Other forms of IP are trademarks, patents and industrial designs.

Like any other type of property, IP can be owned, protected from invasion, leased, assigned or bequeated under will or otherwise disposed of. But unlike many other properties, like an umbrella or a pencil, it cannot be taken into physical possession. It is an abstract concept.

3. Why do we need to protect copyright?

One of the reasons for the protection of copyright is because the Act provides for its protection. Beyond the provisions of the Act, Article 27 (1) and (2) of the United Nations Declaration of Human Rights provides:

27(1)    Everyone has the right freely to participate in the cultural life of the community to enjoy the arts and to share in scientific advancement and its benefit.

(2)        Everyone has the right to the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he is the author.

It is also believed that copyright protection encourages individual effort and invariably enriches the society. Most authors may not see the need to continue to crate copyright works if there is not assurance that their works will be protected or that they will benefit form them. In the long run, society benefits from the works produced and as recent studies have shown, the economic contribution of the copyright industries is enormous.

4. Which law governs copyright in Nigeria?

The following are the laws that govern copyright in Nigeria

  • The Constitution provides that copyright is on the exclusive legislative list therefore it can only be legislated upon by the Federal Government and copyright cases first have to go to the Federal High Court.
  • The Copyright Act (Cap. C28 Laws of the Federation of Nigeria, 2004) under which the following Regulations were made:
    • Copyright (Security Devices ) Regulations 1999
    • Copyright (Video Rental ) Regulations 1999
    • Copyright (Optical Discs Plants) Regulations 2006
    • Copyright (Collective Management Organizations) Regulations 2007.
  • Nigeria is party to the following international instruments:
    • Berne Convention for the Protection of Literary and Artistic Works, 1886 (1971 Act);
    • Universal Copyright Convention, 1952;
    • Rome Convention for the Protection of Producers of Phonograms, Broadcasting Organizations and Performers, 1961;
    • Agreement on Trade Related Aspects of Intellectual Property Rights (TRIP) (Part of the World Trade Organization Agreement concluded in 1994);
    • WIPO Copyright Treaty, 1996; and
    • WIPO Performances and Phonograms Treaty, 1996.

5. Which types of works are protected by copyright?

The six categories of works protected by copyright are:

(1)   Literary works;

(2)   Musical works;

(3)   Artistic works;

(4)   Cinematograph films;

(5)   Sound recordings; and

(6)   Broadcasts.

(1) “Literary Works” includes the following works and works similar to them:

(a)  novels, stories and poetical works;
(b)  plays, stage directions, film scenarios and broadcasting scripts;
(c)  choreographic works;
(d)  computer programmes;
(e)  textbooks, treatises, histories, biographies, essays and articles;
(f)  encyclopaedias, dictionaries, directories and anthologies;
(g)  letters, reports and memoranda;
(h)  lectures, addresses and sermons;
(i)   law reports, excluding decisions of courts;
(j)   written tables or compilations.

(2) Musical Works

A musical work is defined in the Act as any musical composition, irrespective of musical quality, including works composed for musical accompaniment.

(3) Artistic Works

The phrase “artistic works” includes the folling or similar to them:

(a)  paintings, drawings, etchings, lithographs, woodcuts, engravings and prints;

(b)  maps, plans and diagrams;

(c)  works of sculpture;

(d)  photographs not composed in a cinematograph film;

(e)  works of architecture in the form of building models;

(f)  works of artistic craftsmanship and, subject to section 1(3) of

(g)  the Act, pictorial woven tissue and articles of applied handicraft and industrial art.

(4) Cinematograph Films

A cinematograph films is defined under the Act to 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.

(5) Sound Recordings

A sound recording is to the ear what a cinematograph fi!m is to the eye. It means “the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced but does not include a sound track associated with a cinematograph film.

(6) Broadcasts

A broadcast is defined as sound or television broadcast made by wireless telegraph or wire or both or by satellite or cable programme and includes a rebroadcast which means a simultaneous or subsequent broadcast by one broadcasting authority of the broadcast of another broadcasting authority.

6. What are the basic requirements for grant of copyright?

Apart from the requirement that the work in question must fall under at least one of the categories provided above, a literary work, artistic work and a musical work will be protected by copyright only if it is original and the work has been fixed in a medium. To be “original” the law is not saying that the work should be new or novel. It simply means that the work must not have been copied. It must be shown that the work is a product of skill, judgment and labour of the author.

The law permits an author to draw upon the stock of knowledge common to his area of creation and if by some coincidence two authors, working independently, were to come up with identical expressions each of them would be entitled to copyright. What is protected is the product of the labour, skill and capital of each  author and not the raw materials upon which they have been expended.

In addition to the above conditions, the law also  requires that for any work to be protected under Nigerian law, at least one of these must be present:

  • The author or one of the authors must be a citizen of Nigeria
  • The author or one of the authors must be domiciled in Nigeria
  • If it is a literary, musical or artistic work or a cinematograph film, it must have been first published in Nigeria
  • The work is made by or under the direction or control of the government, a state authority or a prescribed international body

7. Does a work have to be registered to enjoy copyright?

No

8. How long does copyright last?

The Act provides for different durations for different kinds of works:

  • For literary, musical and artistic works, excluding photographs, copyright is from the date of creation and lasts through the lifetime of the author and 70 years after his death. Where the work in question is a work of joint authorship, reference to the death of the author means the author who dies last.
  • For cinematograph films and photographs the term of copyright is 50 years after the end of the year in which the work was first published.
  • For sound recordings and broadcasts, copyright lasts for a period of 50 years calculated from the year following the making of the sound recording or broadcast.

9. Who owns copyright?

Generally speaking, the first owner of copyright under Nigerian law is the author, i.e. the person who made or created the work. Even where the author is an employee, he remains the first owner of the copyright subject to any agreement with his or her employer.

10. What are the rights conferred by copyright?

The rights conferred would depend on the work concerned. The following are the rights granted in respect of each category of works:

(a) Literary and musical works:

(i)      reproducing the work in any material form;

(ii)     publishing the work;

(iii)    performing the work in public;

(iv)    producing, reproducing, performing or publishing any translation of the work;

(v)     making any cinematograph film or a record in respect of the work;

(vi)    distributing to the public for commercial purposes, copies of the work by way of rental, lease, hire, loan or similar arrangement;

(vii)   broadcasting or communicating the work to the public by loud speaker or any other similar device;

(viii)  making any adaptation of the work;

(ix)    doing  in relation to a translation or adaptation of the work any of the acts specified in (i) to (vii) above.

(b) Artistic works:

(i)      reproducing the work in any material form;

(ii)     publishing the work;

(iii)    including the work in any cinematograph film;

(iv)    making any adaptation of the work;

(v)     doing in relation to an adaptation of the work, any of the acts specified in (i) to (iii) above.

 

(c) Cinematograph films:

(i)      making a copy of the film;

(ii)     causing the film to be seen or heard in public;

(iii)    making any record embodying the recording in any part of the sound track associated with the film by utilizing such sound track;

(iv)    distributing to the public for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement.

 

(d) Sound recordings:

(i)      the direct or indirect reproduction, broadcasting or communication to the public of the whole or a 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 work by way of rental, lease, hire, loan or similar arrangement.

(e) Broadcasts:

(i)      the recording and the re-broadcasting of the whole or a substantial part of the broadcast;

(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 arrangement;

(iv)    the taking of still photographs from a television broadcast.

11. What are moral rights?

The above rights are known as the economic rights. There is another set of rights conferred on the author of a work. These are the so-called moral rights and they exist independent of the economic right.

The moral rights of the author moral include the right:

(i)   to claim authorship of his work; in particular, that his authorship be indicated in connection with any of the acts embodied in the economic rights except where the work is included incidentally or accidentally when reporting current events by means of broadcasting; and

(ii)  to object and to seek relief in connection with any distortion, mutilation, modification and any other derogatory action in relation to his work where such action would be or is prejudicial to his honour or reputation.

12. What are the exceptions to copyright?

The following are the exceptions:

(a)  the doing of 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, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where’ the work is incidentally included in a broadcast;

(b)  the doing of any of the acts reserved for the copyright owner by way of parody, pastiche or caricature;

(c)  the inclusion in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public;

(d)  the reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public;

(e)  the incidental inclusion of an artistic work in a film or broadcast;

(f)  the inclusion in a collection of literary or musical works which includes not more than two excerpts from the work, if the collection bears a statement that it is designed for educational use and includes an acknowledgement of the title and authorship of the work;

(g)  the broadcasting of a work if the broadcast is approved by the broadcasting authority as an educational broadcast;

(h)  any use made of a work in an approved educational institution for the educational purposes of that institution, subject to the condition that, if a reproduction is made for any such purpose it shall be destroyed before the end of the prescribed period, or if there is no prescribed period, before the end of the period of twelve months after it was made;

(i)   subject to schedule 3 of the Act (dealing with special exceptions in respect of sound recording of a musical work), the making of a sound recording of a literary or musical work, and the reproduction of such a sound recording by the maker or under licence from him, where the copies thereof are intended for retail sale in Nigeria and the work has already been previously recorded under licence from the owner of the relevant part of the copyright whether in Nigeria or abroad, subject to such condition and to the payment of such compensation as may be prescribed;

(j)   the reading or recitation in public or in a broadcast by any person of any reasonable extract from a published literary work if accompanied by a sufficient acknowledgement provided that such reading or recitation is not for commercial purpose;

(k)  any use made of a work by or under the direction or control of the Government, or by such public libraries, non-commercial documentation centres and scientific or other institutions as may be prescribed, where the use is in the public interest, no revenue is derived therefrom and no admission fee is charged for the communication, if any, to the public of the work so used;

(l)   the reproduction of a work by or under the direction or control of a broadcasting authority where the reproduction or any copies thereof are intended exclusively for a lawful broadcast and are destroyed before the end of the period of six months immediately following the making of the reproduction or such longer period as may be agreed between the broadcasting authority and the owner of the relevant part of the copyright in the work. Any reproduction of a work made under this paragraph ‑

(i)   may, if it is of an exceptional documentary character, be preserved in the archives of the broadcasting authority which shall for the purpose of this paragraph be deemed to be part of the National Archives;

(ii)  subject to the Copyright Act, shall not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work.

(m)            the broadcasting of a work already lawfully made accessible to the public and subject to the condition that the owner of the broadcasting right in the work shall receive a fair compensation determined, in the absence of agreement, by the court;

(n)  news of the day publicity broadcast or publicly communicated by any other means;

(o)  the communication to the public of a work, in a place where no admission fee is charged in respect of the communication, by any club whose aim is not profit-making;

(p)  any use made of a work for the purpose of judicial proceeding or of any report of any proceeding;

(q)  the making of not more than three copies of a book (including a pamphlet, sheet music, map, charter plan) by or under the direction of the person in charge of a public library for the use of the library if such a book is not available for sale in Nigeria;

(r)  the reproduction for the purpose of research or private study of an unpublished literary or musical work kept in a library, a museum or other institutions to which the public has access; and

(s)        reproduction of published works in braille for the exclusive use of the blind, and sound recordings made by institutions or other establishments approved by the Government for the promotion of the welfare of other disabled persons for the exclusive use of such blind or disabled persons.

13. What is copyright infringement?

Any person who, without the licence or authorisation of the owner of the copyright, does or causes any other person to do an act, the doing of which is controlled by copyright is guilty of an infringement (direct infringement). Also, it is an infringement to do certain things in respect of an infringing copy of a work (indirect infringement).

Direct infringement of literary musical works

A direct infringement occurs where any of the following acts is done by a person who is not the owner of a work and without the licence or authorisation of the owner:

(i)      reproduction;

(ii)     publication;

(iii)    public performance;

(iv)    translation;

(v)     adaptation;

(vi)    public distribution;

(vii)   public dissemination.

(b)  Artistic works

A direct infringement of an artistic work occurs where any of the following acts is dotlft by another without the licence or authorisation of the owner:

(i)   reproduction in any material form;

(ii)  publication;

(iii) inclusion in any cinematograph film;

(iv) adaptation.

(c)  Cinematograph films

A direct infringement of a cinematograph film occurs where any of the following is done by another without the licence or authorisation of the owner:

(i)   making a copy of the film;

(ii)  causing the film to be seen or heard in public;

(iii) recording of the sound track;

(iv) commercial distribution.

(d)  Sound recordings

A sound recording is infringed where any of the following is done without the licence or authorisation of the owner:

(i)      the direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording either in its original form or any form recognizably derived from the original;

(ii)     the distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan or similar arrangement.

(e)  Broadcasts

The doing of any of the following acts in respect of a broadcast by anyone without the licence or authorisation of the owner is a direct infringement of the broadcast:

(i)      recording and re-broadcasting of the whole or a substantial part of the broadcast;

(ii)     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 arrangement;

(iv)    the taking of still photographs from a television broadcast.

Indirect Civil Infringements

The following acts will constitute indirect infringement:

(a)  importation into Nigeria of infringing copies;

(b)  exhibition in public of infringing articles;

(c)  distribution of infringing articles;

(d)  making or possession of offending articles of infringement;

(e)  permitting use of place for infringing performance;

(f)  performing of work in support of business.

14. When does the infringement of copyright amount to a criminal infringement?

A person is guilty of an offence if he:

(i)   sells of lets for hire or for the purposes of trade or business, exposes or offers for sale or hire any infringing copy of any work in which copyright subsists;

(ii)  distributes for the purposes of trade or business any infringing copy of any such work;

(iii) has in his possession other than for his private or domestic use any infringing copy of any such work; or

(iv) has in his possession, sells, lets for hire or distribution for the purposes of trade or business or exposes or offers for sale or hire any copy of a work which if it had been made in Nigeria would be an infringing copy.

15. Which agency is responsible for copyright matters in Nigeria?

The Nigerian Copyright Commission is the primary agency responsible for copyright matters in Nigeria. Under the Act the Commission is given the following specific functions:

(a)  responsibility for all matters affecting copyright in Nigeria as provided for in the Act;

(b)  monitoring and supervision of Nigeria’s position in relation to international conventions and advising government thereon;

(c)  advising on and regulation of conditions for the conclusion of bilateral and multilateral agreements between Nigeria and any other country:

(d)  enlightenment and information of the public on matters relating to copyright;

(e)  maintenance of an effective data bank on authors and their works;

(f)  responsibility for such other matters relating to copyright in Nigeria as the Minister responsible for culture may from time to time direct.