…the conferment of exclusive jurisdiction on the Federal High Court by Section 251 of the Constitution of the Federal Republic of Nigeria 1999, as amended, with respect to intellectual property right claim is a set back to the enforcement of intellectual property rights. It is on record that not every state in the country, until recently, had a Federal High Court.
Man has been in perpetual struggle to assert his rights. This was evident during the civil rights struggle in America, and the anti-Apartheid movement in South Africa. The reverse is however the case with respect to the assertion of intellectual property rights by Nigerians. What we have in Nigeria is a regime that is dormant, not because the laws are not there but due to the dire level of awareness of these rights by members of the public.
We shall attempt to awaken our awareness of our intellectual property rights here, with the emphasis being placed on copyright, which is common place and does not demand prior registration by any government agency.
Who Determines the Fruit of Human Labour?
The answer to this question is traceable to man’s quest for order in society. Some early scholars are of the view that the problems in society are created by government and its institutions. They castigate laws as artificial intrusions in society. These scholars therefore call for the abolition of the state to enable man thrive in an environment devoid of artificial restraints, hinging their assertion on what they describe as humane nature of man. In essence, the fruits of man’s labour should be determined without recourse to any ‘artificial’ legal regime. Man’s nature should chart a path and determine the fruits of his labour.
Critising the proponents of this school of thought, Dr. A. O. Giwa asserted that such philosophical reasoning is hullicinatory and a daydream. He further described this as constituting a basis for choas and blueprint for mayhem in society. It is not in doubt that this theory has failed where ever it was practised.
Today, recourse is made to the laws of the land in determining the fruits of human labour. Law being a body of rules for the guidiance of human conduct is imposed and enforced within a given territory. In essence, any right not created by law cannot be enforced. Over the years, the Nigerian government has enacted various laws setting out the fruits of human labour in the intellectual property industry. Some of these laws are:
a. Copyright Act;
b. Patent and Design Act;
c. Trademarks Act.
Intellectual Property Rights In Nigeria
Intellectual property refers to the creation of the mind. It has been described as the “legal rights which result from intellectual activity in the industrial, scientific, literary and artisitic field.” Intellectual property has also been defined as the legal rights conferred on those who engage in creative, inventive and promotional activities which have resulted in original, useful or other beneficial output. Intellectual property is a chose in action. It can only be enforced by action and is not capable of physical possession. It can therefore be enjoyed by more than one user concurrently. Nigerian laws recognise several intellectual property rights. These rights can be categorised into two:
a. Industrial property rights: These include patents for invents, trademarks, industrial designs and geographical indications.
b. Copyright and neighbouring rights: These cover literary works, films, music, artistic works, and architectural designs. Rights related to copyright include those of performing artists in their performance, producers of phonograms in their recording and broadcasters in their radio and television programmes.
We shall however focus our discussion on copyright. The reason is predicated on the fact that the acquisition of copyright is easy and not subject to any prior registration or documentation by any governmental agency.
Nature and Concept of Copyright
In its literal connotation, copyright means the right to make copies of a work. This definition is however narrow as the scope of copyright exceeds the mere right to make copies of a work. Copyright has equally been described as one of the branches of intellectual property “which gives the owner the exclusive right to authorise or prohibit certain uses of his work by others.” This definition is at per with the provisions of Section 6 of the Copyright Act, which describes the general nature of copyright to mean the right to exclude others from certain activities with respect to a work. We shall for the purpose of here define copyright as a proprietory right which confers exclusive rights on the owners of an intellectual property to authorise or prohibit a wide range of activities on the property, as set out in the Copyright Act.
The owner of the copyright of a work has the right to exclude others, except as provided by law, from doing certain things with respect to such work. This exclusive right includes the performance, translation, adaptation, publication and other forms of use or exploitation of the protected work.
Subject Matter of Copyright
Section 1 of the Copyright Act sets out six works eligible for copyright. These are: literary works, musical works, artistic works, cinematograph films, sound recordings and broadcast. The meaning and scope of these works are set out in Section 51 of the Act.
By Section 51 of the Act, literary works include novels, stories and poetic works, plays, stage directions, film scenarios and broadcast scripts; choreographic works; computer programmes; textbooks; treaties; essays and articles; lectures, addresses and sermons; law reports, to mention but a few. It should be noted that the literary quality of the work is immaterial in determining whether or not the work qualifies as a literary work.
From the definition or description of a literary work given by the Act, a post on Facebook or Twitter will qualify as a literary work protected by the Act.
The Act defines a musical work to mean any musical composition, irrespective of the musical quality, and includes works composed for musical accomplishment. This definition covers both sound and the lyrics of the song.
The Act defines artistic works as including, irrespective of the artistic quality, any of the following works or works similar thereto: paintings, drawings, etchings, woodcuts, engravings and prints; works of sculpture; photographs not comprised in cinematograph films, to mention but a few.
A cinametograph film, according to the Act, includes the first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction. This definition encompasses visual images fixed in different media, such as video tapes, compact discs, etcetera.
Sound recording means the first fixation of a sequence of sounds capable of being perceived aurally and of being reproduced, but does not include a sound track associated with a cinematograph film. This definition clearly sets out sound recording contained in a cinematograph film from the armbit of sound recording. Such sound recording will be treated within the armbit of cinematograph films.
The Act defines broadcast to mean sound or television broadcasting by wireless telegraphy or wire or both, or by satelite or cable programmes, and includes re-broadcast.
Ownership, Authorship and Subsistence of Copyright
Once it is established that a work falls within the six categories of works subject to copyright, the next step is to determine if copyright subsists in relation to a work at issue. The Act provides that for copyright to subsist in literary, artistic and musical works, the twin requirements of originality and fixation must be fulfilled. Once the twin requirements are fulfilled, copyright will subsist in the work whether or not the work is registered.
By originality, it is meant that the work must have not been copied but originates from an author. The work must therefore be the result of the author’s intellectual creation. It should be noted that the mere fact that the author’s works drew inspiration from an existing stock of knowledge, which was in the public domain, will not affect the copyright of the work. This was the decision of the court in the case of University of London Press v. University Tutorial Press, where the court rejected the contention of the defendant that the plaintiff’s work was not entitled to copyright, solely because the work drew inspiration from the stock of knowledge common to mathematicians. Where, however, a work was simply copied from other works, such work is not original and does not qualify for protection.
Apart from originality as earlier discussed, a work must be in a fixed medium of expression from which it can be perceivd, reproduced or otherwise communicatedd before it can qualify for protection. It should be noted that what copyright protects is the particular expression of an idea. It is immaterial who fixated the work, provided the work is a fixed medium of expression.
Author of a Work
Section 51 of the Act provides, with regard to literary, musical and artistic works, that the author refers to the creator of the work. The author of a photograph is the person who took the photograph.
The author of sound recordings, films and broadcasts is the person who made the arrangement for the film or sound recording or broadcast as the case maybe.
Ownership of a Work
The owner of a work is the person entitled to the copyright of the work. The general rule is that copyright is vested in the author of a work. This rule applies even where such author has been paid by someone to create the work by way of commission or pursuant to a contract of employment. From the above provision of the Act, the author of a photograph is the photographer. The person appearing in the photograph can, in appropriate cases, be sued by the photographer for the breach of his copyright. This is, however, different from the position obtainable in the United States of America and other countries where ownership of such work, usually referred to as ‘work made for hire’, is vested in the person who commissioned the agent to do the work or the employer as the case may be.
To avoid such situation, Section 10 of the Act provides a situation where the parties may by agreement vary the authorship of the work. This may be by contract of employment or any other contract between the parties.
Infringement of Copyright, Remedies and Defences
The Act confers certain exclusive rights on the owner of a work with respect to works protected by copyright. These exclusive rights vary from one work to another. For example, for literary and musical works, the owner of the work has exclusive right with respect to the following:
a. Reproduction of the work in any material form;
b. Publication of the work;
c. Performance of the work in public;
d. Production, reproduction, performance or publication of any translation of the work;
e. Making of any adaptation of the work;
f. Broadcasting or communication of the work to the public by a loud speaker or any similar device;
g. Distribution to the public, for commercial purposes, copies of the work by way of rental, lease, hire, loan or similar arrangement; et cetra.
From the exclusive rights listed above, it will amount to an infringement on the right of the copyright owner for anybody not athorised by this owner to do any of the acts stated above with respect to the work protected by copyright. Thus it will amount to infringement of copyright to publicly perform a drama piece without the consent of the copyright owner. The same will equal apply to radio stations and televisions playing songs and music videos of artists without the written consent of the copyright owner.
Any person whose copyright is infringed can bring civil and/or criminal actions against the ‘infringer’in the Federal High Court in whose judicial division the infringement occurred.
The criminal charge is initiated by the Nigerian Copyright Commission. On conviction, the infringer can be sentenced to terms of imprisonment ranging from six months to two years or with the option of fine per infringing copy ranging from N100 (naira) to N1000 per infringing copy.
An array of civil remedies are available to the copyright owner. The owner may sue for damages, institute and action for account, injunction and conversion of the infringing materials. Nigerian courts have awarded substantial damages in deserving cases.
The Copyright Act provides an array of defences in deserving situations, including fair dealing, educational use, public interest use, to mention but a few.
Challenges of the Nigerian Intellectual Property Activist
The intellectual property activist is faced with emormous challenges, some of which will be discussed below:
First, the conferment of exclusive jurisdiction on the Federal High Court by Section 251 of the Constitution of the Federal Republic of Nigeria 1999, as amended, with respect to intellectual property right claim is a set back to the enforcement of intellectual property rights. It is on record that not every state in the country, until recently, had a Federal High Court. What happens to intellectual property disputes arising in that jurisdiction? Furthermore, there is no special expertise acquired by a judge of a Federal High Court as to make him an expert in handling such cases.
Second, there is the lack of knowledge of intellectual property rights by individuals even among lawyers. It is not in dispute that teaching of intellectual property started not too long ago in Nigerian universities. This, no doubt, is a big setback.
Third, the overbearing presence of the Nigerian Copyright Commission. This is usually felt in criminal proceedings where the Commission is at liberty to withdraw any criminal suit without recourse to the actual complainant. This is indeed a setback that demands urgent redress.
The foregoing examination of the existing legal regime for intellectual property right protection, particularly as it relates to copyright in Nigeria, has shown a positive attitude on the part of Nigerian government to encourage the growth and development of Nigerian intellectual property rights. The fact that Nigerians are yet to reap the fruits of these legislations calls for public enlightment to ensure that Nigerians know their rights, and steps are taken to protect such rights. We should bear in mind the latin maxim: neminem oportet legibus esse sapientiorem. No one can be wiser than the law. What the law has given you is yours, nobody can take it away.
Ituru Oghenerukevwe teaches intellectual property law at the Faculty of Law, Delta State University, Oleh Campus.