IP 1.4 TRANSFER OF COPYRIGHT
Section 11(1) provides that copyright can be transmissible by:
- Testamentary disposition
- Operation of the law as moveable property.
Please note that: Transfer is different from sale of the material in which the work is fixed.
Cooper V. Stephens: Where the defendants claimed that the sale of the block transferred the copyright in the block to the buyer. The court rejected this argument.
Oshinowo V. John Holt Group Limited and Others: The defendants claimed that they had the right to reproduce the painting of the plaintiff because they bought the painting. The court held that purchase only transferred ownership in the object rather than the ownership or transfer of copyright.
An assignment is a written transfer of copyright ownership in an existing or future work from the author to the assignee.
Equity looks at the substance rather than the form.
An assignment or exclusive license must be in writing to have effect–Section 11(3) however, in equity, non-compliance can be overlooked. While a non-exclusive license may be written, oral or inferred from conduct.
A licence is defined in Section 51. It can be seen as a lawfully granted permit, allowing the licensee to use the work. Usually, in practice such licenses should be registered. There are three categories of license:
- An Exclusive License/Non- Exclusive.
- Licenses coupled with a consideration/interest (Irrevocable).
- Gratuitous license (revocable).
An exclusive licence is an authorization in writing, signed by the author, granting the licensee the right (to the exclusion of all others including the author) to exercise all right otherwise exercisable by the copyright owner. In plain words, he can do whatever the author (Licence owner) can do in relation to the work.
The licencee may sue for infringement in his own right like a copyright owner.
An assignment or licence granted by one copyright owner shall have effect as though it has been granted by his co-owner but they shall share the profits equitably. Section 11 (5).
A non-exclusive licence can be granted to many people. A non-exclusive licencee has to co-join the licensor if he wants to sue. It may be written or oral. Adenuga V. Ilesanmi press ltd.
A document transferred for an illiterate should be read over to him and explained. The writer of the document must also sign it.
- TESTAMENTARY DISPOSITION.
Involves bequeathing (total or limited) copyright ownership to the benefactor of the will. The copyright then vests in the beneficiary as soon as the executor assents. Where the owner of copyright dies intestate, the rules of succession applicable to the deceased copyright owner prevails- Olowu V. Olowu.
Section 11 (7) provides that transfer of future copyright is possible.
A careful counsel is advised to consider imputing (while also looking at the provision of the act) the following terms when drafting an agreement of transfer of copyright.
- The nature of rights transferred. (copyright is divisible as such it has to be ascertained whether all or limited rights are to be transferred. E.g, is it just the reproduction, sale or all?
- The duration. (after which the copyright reverts back to the author)
- The geographical restriction. (In what geographical area can the right transferred be exercised? Note that this is subject to the bilateral or unilateral agreements between the states)
- The amount of consideration/royalty to be paid.
- How should the right be exercised? once? Continuously?
- The mode and frequency of payment.
- The mode of dissolving the agreement.
- Dispute settlement clause.
- Other necessary terms, conditions and imputation.
The courts shall not uphold an unconscionable bargain. Schroeder Music Publishing co V. Macaulay. Where the owner of copyright is adjudged bankrupt, his property, including copyright vests in the trustee in bankruptcy.
DURATION OF COPYRIGHT.
Copyright protection is not perpetual. Once copyright in a work has expired, it is said to have fallen into “public domain” and can be exploited by any member of the public. Copyright can be accorded with to a person who exploits a work that is in the public domain… Subject to the exceptions in Section 1, 2 and 3 of the Copyright Act.
The Berne Convention recommends a minimum of the author’s life plus 50 years.
The First Schedule of the Copyright Act 1988 stipulates the following duration:
- In the case of literary, musical and artistic works (other than photographs), 70 years after the end of the year in which the author died.
- If a body corporate: 70 years after the end of the year in which the work was published.
- In the case of Cinematograph films, sound recordings, broadcasts and photographs: 50 years after the end of the year in which the work was published or the broadcast first took place.
- Section 2(3) of the Copyright Act in literary, musical and artistic work where author is anonymous or pseudonym: 70 years after the end of the year of first publication. If the author becomes known, 50 years after the end of the year in which he died.
- Section 2(4): In the case of joint authorship of a literary, musical or artistic work; 70 years after the end of the year in which the last joint author died.
Obviously, the end of the year must imply December 31st.
Note that the relevant determinant is the death of the author not the licencee or assignee.
Note also that: Mere reproduction of the work does not reset the duration.
Again: Transfer of the right is immaterial.