THE CONCEPT OF COPYRIGHT
Copyright as one of the branches of intellectual property is protected under the Copyright Act, (1988) . The protection donated to Copyright covers a wide range of works, such as; Literary, musical and artistic works, cinematograph films, sound recordings and broadcasts. In recent times, surges in cases of copyright infringement has been on the rise; this is arguably, due to rapid advancement in technology which has practically made it possible to copy the work(s) of another within a short period without even compromising the quality of the original work. The internet is in fact one of the largest threats the copyright law has faced since its inception.
Digital piracy, which involves the illegal and unauthorized obtaining and sharing of copyrighted works, is becoming increasingly aggressive and growing as a severe global problem. The main reason for this, is the difficulty to detect the perpetrators piracy since it is online. Although, the Internet Service Providers (ISP) can be indirectly liable for the online copyrights infringements, the measures to minimize same have proven to be challenging and daunting.
WHAT IS COPYRIGHT
Copyright has been defined by Black’s Law Dictionary, as a right granted to the author or originator of certain literary or artistic productions, whereby the creator is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the literary, musical or artistic works and publishing or selling them to the public.
The Copyright Act Chapter C28 Laws of the Federation of Nigeria 2004 (Copyright Act), does not define the word “works”. However, Section 1 (1) of the Copyright Act (1988) provides that:
Subject to this section, the following shall be eligible for copyright:
• Musical works,
• Artistic works,
• Cinematograph films
• Sound recordings and
ARE ALL THESE WORKS ELIGIBLE FOR COPYRIGHT?
The question to be asked is whether the protection granted to works under section 1(1) is wide enough to cover all kinds of works that come under the canopy of that section. The answer to this is in the negative. Section 1(2) of the Copyright Act provides that: A literary, musical or artistic work shall not be eligible for copyright unless:
• Sufficient effort has been expended on making the work to give it an original character
• The work has been fixed in any definite medium of expression, now known or later to be developed
This, however suggests that before any work can be eligible for protection, sufficient effort must have been expended on the work to give it original character and the work must be fixed in a definite medium of expression. Originality within this context does not connote creativity or novelty. It simply denotes that the work was not copied or plagiarized.
CONDITIONS A WORK MUST FULFILL BEFORE IT BECOMES ELIGIBLE FOR COPYRIGHT PROTECTION
The conditions are as follows:
• Definite medium of expression
OWNERSHIP OF COPYRIGHT WORKS
Section 10(1) of Copyright Act provides that Copyright in a work is generally owned and vested in the author i.e. the person who created the work. However, this is a general rule. There are certain exceptions to this rule. They are:
1:Where a work is created by an employee in the course of his or her employment, copyright in such work is vested on the employer.
2:Where a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service, the said proprietor, shall in the absence of any agreement to the contrary, be the first owner in so far as it relates to the to the publication of the work in any of the medium.
3:Where the owner has assigned exclusive ownership of the work.
RIGHTS PROTECTED BY COPYRIGHT
There exist two basic rights that copyright seeks to protect, these are:
1: ECONOMIC RIGHTS
This right permits the owner to obtain financial benefits from allowing others to use his works. This rights can be transferred or assigned to other owners mostly for a specified sum of money or royalties determined by the sole usage for which the work will be put to.
2: MORAL RIGHTS
This right is also known as right of authorship and respect, it grants the owner of the right the power to object to the work being distorted or used in contexts that are prejudicial to the honour, literary and artistic reputation of the author.
DURATION OF COPYRIGHT
Copyright in a work does not last forever. The first schedule to copyright Act provides for the duration of copyright protection in apublished
• For literary, musical, and artistic work other than photographs; it is seventy years after the end of the year in which the author dies and in the case of a government or a corporate body, seventy years after the end of the year in which the work was first published.
• For Cinematograph films and photograph; fifty years after the end of the year in which the work was first published
• For sound recordings, fifty years after the end of the year in which the recording was first published.
• For broadcasts, fifty years after the end of the year in which the broadcast first took place.
WHAT HAPPENS AFTER EXPIRATION OF COPYRIGHT IN A WORK?
After the expiration of copyright protection in a work, the work goes to the public domain . The term “public domain’’ refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own such work.
COPYRIGHT INFRINGEMENT AND REMEDIES AVAILABLE
Copyright infringement is the use or reproduction of copyright protected works without the permission, license or authorization of the owner of such work. Section 15(1) of the Copyright Act (1988) provides that, Copyright is infringed by any person who without the license or authorization of the owner of the copyright:
1.does or cause any other person to do an act, the doing of which is controlled by copyright;
2.imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph (a) of this subsection;
3.exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;
4.distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a) of this subsection.
What can be deduced from the above cited provision is that, it is only the owner of copyright that can do or authorized the doing of which is controlled by copyright. It must be noted that the owner of copyright work can assign the rights in such work. Assignment of copyright can either be exclusive or non-exclusive. Where the assignment is exclusive, section 11(3) of the Copyright Act (1988) requires that such assignment must be in writing to be valid. However, where the license is non-exclusive, the assignment may be written or oral, or may be inferred from conduct.
ACTION FOR INFRINGEMENT
Action for infringement of copyright works is actionable at the suit of the owner, assignee or an exclusive licensee of the copyright as the case maybe, the Federal High Court by virtue of Section 251(1) para. (f) (precisely the 1999 constitution of the FRCN) of the Nigerian Constitution exercises the jurisdiction where the infringement occurred. What this means is that, it is only the Federal High court of Nigeria that enjoys the exclusive jurisdiction to entertain matters bordering on Intellectual Property generally.
REMEDIES FOR INFRINGEMENT
The Owner of a Copyright work, whose right has been infringed, are not left at the mercy of the infringers. There are various remedies available to Owners of Copyright works. Owners of works whose copyrights have been infringed upon may write a letter of demand that, the person infringing on their copyrights stop the infringement, deliver all original and copies of the infringed work to them and pay compensation for use of their work.
In addition to the foregoing, section 20 of the Copyright Act (1988) provides for criminal liability of any person who makes or causes to be made for sale, hire, or for the purpose of trade or business any infringing copy of a work in which copyright subsist or imports or causes to be imported into Nigeria a copy of any work which if had been made in Nigeria would be an infringing copy or make or causes to be made, or has in his possession any plate, master tape, machine, equipment or contrivance for the purpose of making any infringing copy of any such. The punishment upon conviction is 5 years of imprisonment or fine or to both such fine and imprisonment.
Copyright infringement is constantly increasing and there is need for proactive measures to stem the tide and arrest the situation. Although there is a regulation in place to control the use of copyright works, however due to the increasing threat to Copyright works, there is need for stiffer measures to be put in place. Equally, there is need for Nigeria’s Copyright Commission and other stakeholders in the industry to constantly engage and sensitize the public on the dangers of infringing on copyright works.
About The Author
Nnamseh Aniekan Aloysius is a writer, a poet, motivator, author, reseacher and the sole founder of “Wits Of The Law”.His area of interest are International Humanitarian Law (I.H.L), Criminal Litigation, Intellectual Property Law, Tax Law and Health Law.
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