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by Onyekachi Eriobu-Aniede
This paper seeks to clarify burning issues in the creative industry. Due to misconception, people say that the idea they conceived has been developed by someone they shared it with. Unfortunately, ignorance of the law is not an excuse. Some complaints, like; I came up with an idea but someone stole the idea, ran with it and now has a copyright, are constantly received by copyright offices. This article will shed light on some issues you perhaps didn’t know about copyrights.
Intellectual property is a tool for protecting the creations of the mind, and depending on the result, the work may be eligible for a patent, trademark, industrial design (industrial property) or copyright protection. Works in the creative industry are mostly protected through copyright, but at times, there may be an overlap, especially with image rights, trademarks, patents (software), industrial designs (handicrafts), and related or neighboring rights, which are almost inseparable from a work of copyright.
What Is Copyright?
Copyright relates to literary and artistic creations, such as books, music, paintings, sculptures, films, and technology-based works (such as computer programs and electronic databases) (WIPO, 2016) For better understanding, it is important to qualify literary and artistic works. Article 2(1) (Berne Convention, 1986) elaborates the expression “literary and artistic works” to include every production in the literary, scientific, and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets, and other writings; lectures, addresses, sermons, and other works of the same nature; dramatic or dramatical-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving, and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches, and three-dimensional works relative to geography, topography, architecture, or science.
It therefore follows that not all creative works are eligible for copyright protection, considering the overlap in the creativity involved in industrial design, S. 1(3) Nigerian Copyrights Act (Cap 28 Laws of the Federation of Nigeria, 2004). The underlining difference is that copyright handicrafts are purely for beautification, but industrial designs may be capable of serving both beautification and industrial purposes. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement allows for a dual approach whereby some World Trade Organisation (WTO) Member States may protect design as copyright or as an industrial design while some use both regimes cumulatively to protect design. As a result, such design can invoke protection under both or either. The merit of this is the fact that copyright exists automatically, so even if industrial design protection which requires registration has not been sought and infringement occurs, the artist can still claim under copyright. Unlike copyright, industrial design is for a limited period of at least 10 years (Nigeria is 5 years with a two term 5 yearly renewal). There is no protection without registration with the exception of European Union Community Unregistered Designs that enjoys protection before registration for three years. Infringement may occur even if the artist acted independently (World Intellectual Property Organization, 2017 pg.237). Each work is treated on its own merit to determine if the work constitutes a copyright, related rights, or other forms of rights. For a work to be recognized as a copyright, it requires no formalities. Copyright is automatic upon creation. However, the creation of which must meet the following criteria: originality and fixation.
Originality: this is simply explained as independent creativity. Independent connotes that the work was not copied from an existing work. There must be a level of skill and judgement to give it its original character. The work was created independently by the author with some degree of originality, which may be in the form of selection, compilation, or arrangement. It suffices to say that two similar works may co-exist as copyrights if the authors created their works independently of each other. But copyright would subsist in a derivative work even if a subsequent copyright holder failed to obtain the consent. That is, though an infringement has occurred it may not deter the rights in the subsequent work from being exercised.
Creativity, suggests that some element of creative work was dispensed with in the creation of the work. The test for creativity is sufficient even if there is a modicum or little degree of creativity, as severally held by the courts (Feist Publications, 1991). What is important is the sweat of the brow, as supported by the personhood theory of copyright. The original character or personality of the author (style, genre, signature, among others) is robbed of the author’s creation. The level of creativity required allows for creativity to be built on existing creativity or work (based on prior consent). Creativity builds upon creativity and that is why you may find a song that has borrowed a bit or substantially from an existing song to create a new work. The new work is eligible for copyright protection, but the author should have sought the permission of the rights holder to use it for a new creation.
A derivative work could be; an adaptation (a novel into a movie), a translation (an English instruction manual into other languages), a selection or compilation (compiling articles by different authors into a book). If total copying of an existing work of copyright, the act will amount to plagiarism or other forms of infringement, as the case may be.
Fixation requirement under the Berne Convention is left to the discretion of the Member States to the treaty. This is because the Member States are composed of countries of both Common Law and Civil Law jurisprudence. The countries of Common Law require fixation for a work to become copyrightable, while under Civil Law (Germany), a copyrighted work can exist without being fixed in a medium. A work is said to have been fixed when it is placed in a stable and permanent embodiment. Fixation plays an important role in determining infringement of copyright works. Until a work has been fixed in a medium that is not transient, an infringement may not be established. That is to say, an infringement will only occur when a fixed work (copyright work) has been reproduced in a fixed form. By virtue of the principle of national treatment that allows Member States to protect copyright works of a national of the Berne Convention as they would protect any of their national’s copyright works. This implies that a copyright work from Germany even though it is not fixed in a medium, shall be protected in a Common Law country like Nigeria irrespective of fixation requirement.
These two criteria (originality and fixation) clarify why some ideas may have been lost at business meetings while pitching a business idea or other forms of collaborative works. Although copyright work is automatic upon creation, the work must be fixed in a permanent medium. Imagine books, audio or video tapes, sound recorders, sculptures, and other digital means of recording a work. Without fixing a work into one or more of this media, it is difficult to establish copyright. This implies that copyright does not protect an idea but the expression of an idea. A work is expressed when it is fixed in a medium. For instance, a dance step is not copyrightable if the dance routine is not recorded. A drama performance on a stage is not a work eligible for copyright protection if it was not recorded. A singer who sings to a crowd has no copyright if the tune, lyrics, and sound were not recorded.
This leads us to another burning issue; even when recorded, who is the author and who is the owner of the recorded work of copyright? According to the words of the Berne Convention, only a human being can be an author. This has sparked debate at the international level but the courts have consistently held that non-human expression is ineligible for copyright protection. A Japanese computer program participated in the 2016 National Literary Competition with a short story titled “The Day a Computer Writes a Novel.” The AI did not win the competition, but it made the world conscious of the potentials of an AI machine. Although AI authored books are sold on Amazon, they are not legally recognized as authored by an AI but as works authored by the owner or developer of the AI machine, Section 2(d)(vi) of the Copyright Act, 1957. To this end, only a human person can be an author of a work (the US recognizes legal entities as author) and animals don’t stand a chance. (The Monkey Selfie case), in which the court ruled that copyright protection does not extend to an animal.
An author is a person who puts effort into creating and fixing a work in a medium. There is a presumption that the author of a work is also the first owner of a work therefore, an author has both moral and economic rights. This means that an author may eventually stop being the owner and by right holder of the economic rights in the work. The owner has economic rights in a copyright work and like real property, economic rights can be assigned or licensed. Depending on the scenario, work for hire ideally belongs to the commissioner of the work, and so does work done within the scope of employment (it belongs to the employer). While the economic rights can be alienated, the moral rights are not transferable (in the US it is alienable, in the UK and in Bostwana, it is waivable. What passes with ownership is the economic rights of the author, which include, among others, rights to reproduce, distribute, communicate to the public, make known to the public, broadcast, and rental rights. While the moral rights consist of the rights of paternity (the right to be mentioned as the author of a work) and integrity (the right to prevent and ensure that a work is not used in a way that will bring disrepute to the author).
This brings up the issue, what is the term of copyright protection. The minimal allowed term according to the Berne Convention is life of the author plus 50 years. This is one of the flexibilities allowed by the Berne Convention whereby Member States can increase the term in their copyright legislation. For instance, the Nigerian Copyright Act puts the term at life of the author plus 70 years, while Jamaica’s is 100 years after. If a work has a co-author, copyright will last for the life of the last surviving author plus 50 or 70 years, depending on the provision of the national law. It follows that the moral rights that is right to be mentioned as author, remain with the author even after death for so long the work is mentioned. While the economic rights in a copyright work, lasts for at least the author’s lifetime plus 50 years depending on the national law.
Another twist to this is called the principle of comparison of terms. Article 7 (8) (Berne Convention, 1986) provides that in any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work. This presupposes that if Nigeria grants the term of life of the author plus 70 years and Malawi grants the life of the author plus 50 years. A work of a Nigerian author, which by virtue of membership of the Berne Convention, will be protected in Malawi beyond the life of the author plus 50 years as provided in the Copyright Law of Malawi. This is also true of such works flowing from Malawi to Nigeria. Though Nigerian copyright law provides for the life of the author plus 70 years, the Malawian copyright work will fall into the public domain in Nigeria 50 years after the death of the author. The base line is the country where the rights emanate.
Another key issue that arises is related/ neighbouring rights. Holders of related rights are granted the exclusive rights to fix their work, reproduce, distribute, broadcast, and sometimes include the right to rent. This is not to say that performers don’t enjoy royalties by virtue of the terms of a contract pacta sunt servanda. The term of the rights in a related right is 50 years from the last day of the year the work was created or made public. Performers and producers are entitled to economic rights, while performers also have sound recording rights. However, broadcasting organizations are only entitled to economic rights, not being a human being.
The transformation from analogue to digital came the eruption of copyright issues in the digital environment. Some decades ago, it was not so easy to make a copy of a copyrighted work, thereby infringing. The digital space has however, created more jobs (content creators have emerged, businesses, memes, and different ISPs have more content) but with multiplicity of issues. For instance, with each surf of the internet, downloads, peer-to-peer sharing, caching, scanning, among others, are elements of reproduction, fixation, renting, making known to the public, and communication to the public which are infringement when done without consent being economic rights under copyright and related rights. Without the permission of holders of the rights, by way of a license or free authorization to use, it seems one way or another we constantly infringe in the digital space.
It has become more difficult for right holders to control or prohibit the use of their works over the digital networks because our use has gone beyond personal and has become commercial. Some issues arising are: who checks the free use as against the entitlement and benefits of rightsholders? How are permission to use sought? How can authorship be verified? Who owns the works displayed by different internet content creators? What are the terms of use between the ISPs and internet users? And many more.
It has become obvious that rightsholders can no longer manage their rights personally and individually due to the borderless nature of the internet. Due to these disruptions in the digital environment and its borderless nature, the concept of territoriality is put to test as copyright works can be disseminated and accessed across the borders. Hence, there is an urgent need for the services of copyright management organizations (CMO) to create relations beyond their territory in the management of rights. Such relations as bilateral (MSCK and COSMOS), regional (ICE and Pan African Digital Licensing Hub) and international relations with CMOs outside their territory for easy collection and distribution of royalties to the creators of work. Individual management though difficult could still be achieved with blockchain technology. Internet content providers can make use of technological protection measures (TPM) and electronic rights measures (ERM) such as water marks on their contents for a blurry view at attempted copying without permission. Internet users should read and understand the terms and condition of signing up with Internet Service Providers such as Facebook, YouTube, LinkedIn and many others.
The purpose of this article is to dispel misconceptions about some pressing issues in the creative industry among the people and businesses who interact with it, in order to inform their decision-making for better rights management and the best enjoyment of their creativity. According to John Locke’s labour theory of copyright, he said that those who labour to work should have a natural right to reap the benefits of it. Although copyright is a bundle of rights, complicated or complex, these rights are separate and can be managed singularly or collectively. The choice is that of the right creators; a choice that should be made in consideration of the rights of the public to enjoy this creativity for personal and non-commercial use. Above all, creativity is wealth, and the creative industry is the pride of a nation.
About the author
Onyekachi Ngozi Eriobu-Aniede, is a lawyer, a mediator, and a Federal Civil Servant. A staff of the Intellectual Property Office of Nigeria, an IP awareness and content creator with a wealth of knowledge in IP flowing from work experience, WIPO DL Courses, Harvard CopyrightX, LAWSIKO IP Paralegal Courses and Masters in IP (in View) among others. The author of IP w/ Lawyer Onyekachi, a Newsletter on LinkedIn; a presenter, a resource person, and a Peace Advocate with varying qualifications in Peace Advocacy including a Master’s in Peace Studies and Conflict Management.
A multiple awardee and nominee of 2021 40 Under 40 ESQ Awards in the IP category and the Vice President of the 15 Cohort Masters in Intellectual Property, Africa University; a Federal Civil Service of Nigeria Innovator; a Trademark Ambassador and a Future Leader in the Federal Civil Service of Nigeria (LEAD-P).
