COPYRIGHT 1.3 ACQUISITION OF COPYRIGHT
COPYRIGHT OWNERSHIP. Section 2, 3, 4 and 5 of the act
Conferment of copyright.
Copyright is not automatic per se in Nigeria. The previous discussions have enlisted eligibility for copyright. As such, a work may be eligible for copyright protection but may not have been conferred with copyright.
Form the provisions of the Section 2,3,4 and 5 of the Copyright Act, Copyright can be conferred on eligible works under the following heads:
- Section 2 – copyright shall be conferred on a qualified person. Meaning the author or one of the authors’ (in the case of joint authorship) is a Nigerian citizen or domiciled in Nigeria. In the case of a body corporate, that it is established under the laws of Nigeria.
- Section 3 – Where the work (other than a broadcast) is first made or published in Nigeria. Publication means making the work accessible to the public. Oscar trademark case, where winners were given a copy of the work, it was not seen as publication. Read also Francis Day and Hunter ltd Feldman and co.
Note that simultaneous publication within 30 days in another country is the same as publication in Nigeria.
- Section 4 – Where the work is made by or under the control of the government, state or an international body.
- Section 5- First publication in: (or where the author is a citizen/domiciled in) a member state to a treaty which Nigeria is a party to. E.g where the author is a member of any of the UN, ECOWAS, OAU… states. In the case of a corporation, where it is established under the laws of the party state in question.
Irrespective of the quality of the work or the qualification of the author in the specific field or area.
In Ifeanyi Okoyo and another V. Prompter Quality Services Nigeria Limited and Another: The issue was whether works of architecture drawn by an unqualified architect could be accorded copyright. The answer: Yes.
After an eligible work has fulfilled the provisions, of Section 1, Section 10(1) provides that copyright shall first vest on the author in respect of works under Section 2 and 3 (citizenship of Nigeria/first publicarion in Nigeria).
Who then is the author?
Thankfully, Section 51 of the act defines an author;
- In respect of Literary, musical and artisric works (other than a photograph); the person who creates the work.
- In respect of a cinematograph, broadcast and sound recording, the person by whom the arrangements for the making of the film, transmission or recording (respectively) are made.
Except a contract to the contrary is entered into by the parties.
- In the case of a photograph, the person who took the photograph.
- Copyright in a work of collective authors vests in the person who organizes or commissions the respective authors to contribute.
- Each author has copyright of his own part/chapter in the work.
Except the author is employed by the government or other international recognized body.
- In joint authorships, their works cannot be divided as such they should share authorship and benefits accrued.
- In the case of a sound of a musical work, the person in whose name the recording was made.
- In the case of a sound recording, the producer.
- In the case of a film, the producer and the principal director, see Re Fg films Section 9 and 10 of the UK Copyright, Patents and Designs Act
- In the case of a broadcast the person making the broadcast.
Section 10(2), works made in the course of employment shall first vest in the author. Unless there is a written contract to the contrary.
The courts are advised to construe the level of control exercised over the author. There is a difference between a “contract of service” and a “contract for services”. The latter being an independent contractor (outside the course of employment).
Tests like the control test, economic reality test, organizational test, and so on have been suggested to help in determining whether or not a work was made in the course of employment. All in all, the following principles should be noted:
- The work must have been done in the course of employment.
In Byrne V. Statist:The editorial staff of a newspaper company alongside two other independent contractors were asked to translate an advertisement. The translation was done entirely in the plaintiff’s time. It was held that the translation was not done in the course of his employment.
Where equipment is provided by employer, and remuneration paid, then it is that of service,
In Gentil V. Tabansi Agencies ltd 1977 NCLR 344. The plaintiff was employed under a weekly salary to train the defendant’s band of musicians. During his employment, he made certain recordings.
When the plaintiff resigned from the company, he sued for infringement when the defendant company marketed the sound recordings. The court held that the defendants had provided the equipment and band for the plaintiff and weekly wages of #300. He was also required to shout their slogans during practice. It was held that his contract was that of service.
Hon. Dr. Olakunle (the Chairman of the Nigerian Law Reform commission) stated that the rationale behind this is because of the unequal bargaining power. The weaker position of the employee.
Section 10 (3) Where LITERARY, MUSICAL AND ARTISTIC WORK, is made by the author in the course of employment for a newspaper, magazine, periodical or the like and for the purpose of publication, copyright shall first rest on the employer- except a contract to the contrary is provided.
In the case of Cinematograph and sound recording, the author is advised to make a contract in writing to clarify issues.
For government or international body works, it shall first vest in the government or international body
From the combined interpretation of Section 1(2), Section 10 and 51(1) of the copyright act, it can be seen that the author can be defined as the person who expended his independent skill, judgment and labour in the creation of the work. The creator of the work or the person that brought about the creation.
As such; Where X, dictates a poem from his head, which his secretary types, it follows that X should have copyright in the work rather than the secretary who fixed it in a definite medium- Yemitan V. Daily Times.
However where skill and labour has been exercised in fixing a speech (verbatim) given extempore, the writer can be vested with copyright.
In Walter V. Lane: The reporter who wrote down verbatim, an oral speech was accorded copyright. As the learned justice held that it is quite rare to find a person with such skill, talent and speed in taking down a written speech verbatim.
Section 10 (5) where a work under the control and supervision of the government, state or international body, copyright shall vest in the government, state or international body respectively.