IP 1.2 COPYRIGHT-ELIGIBLE WORKS
Meaning works that are worthy of protection.
Section 1 (1) of the Nigerian Copyright Act 1988 provides that works irrespective of their quality include:
c. Artistic work.
e. Sound recording.
The use of the word “include” in Section 51 of the Act and the phrase; “works similar to” as it applies to literary works implies that the list is not exhaustive.
Section 51 of the Copyright Act defines the categories.
The 1988 act has introduced computer programs which is a welcome development.
The provision “irrespective of the quality” prevents the infringer from claiming that the work is rubbish.
Section 1(2) of the Copyright Act provides that; a literary, musical or artistic work shall not be eligible unless:
- Sufficient effort has been expended in making the work to give it an original character.
- It has been fixed in a definite medium of expression now known or later to be developed from which it can be perceived or communicated whether directly or with the aid of a machine.
Before we proceed, please note that copyright does not subsist in ideas, it is the product of such ideas that it protects. This has been noted Macmillan V. cooper and in the case of University of London Presss V. university tutorial press ltd.
- SUFFICIENT EFFORT.
Originality is a fundamental theme of copyright, so also is the requirement of sufficient effort. The act fails to define “sufficient effort” nor does it illuminate upon the word; “original”. Due to this lacuna, recourse shall be taken to case law interpretations.
It is relevant to note that originality in this context DOES NOT refer to novel or new works that have never been seen or heard of. As nothing is new under the sun. As such, a work can be original notwithstanding the fact that it is not novel.
A central theme to have in mind (as has been noted in Ladbroke ltd V. Hill) is that the work must not be copied. It must have originated from the author’s independent skill and judgment.
In Offery V. Chief S.O. Ola and others, the plaintiff designed a school record book titled. “New era scheme of work and record book” some years later, he noticed that the defendants were selling some similar record books. The court found that the book merely consisted of horizontal and vertical lines from page 1 to 52 and held that there was no evidence to show that sufficient effort has been expended in the production of the work as such it could not be called original.
In University of London Press limited V. University Tutorial Press, examiners were hired to create mathematics exam papers for the University of London and they were able to prove that they thought up the questions and did not copy the questions even though they drew from the wealth of knowledge in the field of mathematics. Peterson J. held; that “Copyright Acts are not concerned with the originality of ideas but with the expression of thought” (in this present case of a literary work; the expression of thought in writing.) furthermore, “original means that such expression must originate from the author and must not be copied”.
In Macmillan and co limited V. Cooper, it was held (Lord Atkinson delivering the judgment) that it is the product of one man’s skill, labour and capital that must not be appropriated by another. Not the elements or raw materials. The question is not whether the idea and materials used have never been used before. It is whether the same plan and arrangements have been used before for the same purpose.
A copyist cannot enjoy copyright.
In ICIC (directory publication limited) V. Ekko Delta (Nigeria Limited) and another, the plaintiff who were publishers of the national telephone directory of Nigeria published the directory of incorporated companies in Nigeria. The defendants also published the same. Leading to a depression in the plaintiff’s business. When sued, the defendants were able to prove that the directories were not the original work of the plaintiffs as they copied from the federal ministry of trade and those of P and T and then turned around to claim ownership. The court restated that a copyist cannot enjoy copyright.
As such, it can be seen that independent skill, judgment and effort must have been expended in producing the literary, musical or artistic work… it must not be a mere copy of another’s work.
There is no fixed quantum but a little independent level may suffice. Some jurisdictions refer to this requirement as the sweat of the brow principle.
- Compilations can be protected but the compiler must seek permission from the owners of the work.
- The various authors in a particular book have copyright in their works and can use it anywhere. The editor is the owner of the copyright of the book.
- A change in medium or translation can accord one with copyright.
In Byrne V. Statist Company, On the request of his employer, the employee (a newspaper editorial staff of financial times) summarized and translated a speech. The court held that the employee had copyright in the translation because even though he was employed, it was done in his own time.
Factual things like; news, historical facts, and so on… belong to the public domain and can be used by anyone so long as it was not copied from another person’s work verbatim. The reporter should apply skill in the diction he uses and the way such report is presented.
In Chicago Record-Herald V. Tribune Association: The court held that the Herald, in using parts of the article published by the Tribune including the style and presentation, had infringed the copyright of the tribune. Notwithstanding the fact that they gave credit to the tribune.
Copinger and Skone James posit that in determining if a work is original, the work should be looked upon as a whole.
CAN PROTECTION BE ACCORDED TO TITLES?
A title can be defined as a descriptive heading or a heading that identifies a work.
Generally, titles in themselves are not protected by copyright for being too short and insubstantial.
A claimant who wants to secure victory is advised to seek protection under trademark or alternatively make his claim under the tort of passing off.
In Exxon Corporation V. Exxon Insurance Consultants International Limited: The court held that there is no copyright in a name alone. It went further to note that even if the plaintiff sought protection under trademark, their claim would likely fail because the infringer in this instant case was not in the same market segment as the claimant.
In Francis, Day and Hunter limited V. 20th Century Fox limited: The court held that a title was too insubstantial to be accorded copyright.
In Adenusi V. Aromolarun: The court held that the title “English Verbal Aptitude Test” is ineligible for copyright protection.
In Dick V. Yates- the court held that a title should be sufficiently lengthy and independent skill and labour must have been applied in its creation for a title to be accorded protection.
Even in the extreme case of Broemexl V. Meyer: The court refused to grant copyright to the title; where there is a will, there is a way, even though both storylines referred to a will (testamentary disposition).
However, (as has been noted in Sweet V. Benning) headnotes in law reports can be protected because it is presumable that sufficient effort is expended in the creation.
FIXATION IN A DEFINITE MEDIUM.
Section 1 (2b).
As has been noted earlier, the courts have constantly held that copyright does not exist in ideas. But in the form in which they are expressed. To be accorded protection, a literary, musical or artistic work must be fixed in a definite medium of expression from which it can be communicated or perceived. Now known or to be later known.
Although, there is no requirement for cinematograph, broadcasts and sound recording to be fixed, they would usually by their nature be fixed in a definite medium of expression.
In Tate V. Thomas: a person conceived an idea for a play. The plaintiffs wrote the lyrics, dialogues and music. The person who conceived the idea claimed copyright but his claim was dismissed because fixation was done by the plaintiffs.
It is humble to submit that the rationale behind fixation is to close the floodgates of the court from frivolous and unfounded litigations. Everybody can have an idea. Having an idea and putting it into execution are two separate things.
Note that all the law requires is that the originator of the idea fixes it in a definite medium. It does not regard the agent or tool used to facilitate the fixing- Donoghue V. Allied newspapers ltd. (e.g a person dictating to his typist would have copyright notwithstanding the fact that the typist fixed the words).
Section 1 (3) Artistic works intended by the author to be used as a model or pattern to be multiplied by industrial process.
Such a creator is advised to seek industrial protection.
Slogans, familiar symbols or designs, illegal or immoral and indecent works should not be protected.
Others like standard log books, Cheques, calendars and so on should not have copyright.
Section 1(4) further states that a work shall not be ineligible by reason only that the making of the work or the doing of any act in relation to the work involves an infringement of copyright in some other work.
Be reminded that there is no form of preregistration required for copyright protection to be accorded.
In the U.S.A, The author is advised to display a notice at the title page ©. Accidental omission does not invalidate though. An application for registration, the fee and two best copies of the work are deposited at the office. Failure to comply does not invalidate copyright but stays right to bring an infringement suit until the condition is fulfilled. Registration shows that the claimant is the true owner of the work. Display of copyright notice is necessary to prevent innocent infringement.
Section 14 of the act provides that publishers, printers, producers or manufacturers, should keep a register of all works produced by them showing the:
- Name of author
- Title of work
- Year of production
- Quantity of the work produced.