NATURE AND SCOPE OF COPYRIGHT PROTECTION (PART TWO)
2.3.1 ELIGIBLE WORKS: Section 1 is the relevant provision here. Eligible works include[1]: Literary, Musical, Artistic, Cinematograph, Sound recording and Broadcast. The eligibility is conferred irrespective of their quality. Note also that this list is not exhaustive.
2.3.2 THE REQUIREMENT OF SUFFICIENT EFFORT AND FIXATION.
Section 1(2) of the Copyright Act provides that:
“A literary, musical, or artistic work shall not be eligible for copyright unless- (a) sufficient effort has been expended on making the work to give it an original character; (b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.”
The Requirement of Sufficient Effort[2] (for literary, musical and artistic works):
Originality is a fundamental theme of copyright, so also is the requirement of sufficient effort. In the United States of America, this requirement is referred to as the “sweat of the brow principle”. Originality in this context does not refer to novel or unique works. It does not mean that the work/idea itself should be ingenious or totally new[3]. It is the manner and style of expression that should be original. The work must not have been copied[4]… it must have originated from the author’s independent skill and judgment[5]. As Lord Atkinson noted in Macmillan and Co Ltd v Cooper 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. In University of London Press Limited v. University Tutorial Press[6] the court noted 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”.
As such, it can be seen that independent skill, effort and judgment must have been expended in producing the literary, musical or artistic work… it must not be a mere copy of another’s work[7]. The author must have “earned” the exclusive right over the work[8]”.
In summary, a copyist cannot enjoy copyright[9]. As the moral bases upon which the principles of the protective provisions of copyright vests is the ‘eight commandment thou shall not steal”[10]
The Requirement of Fixation[11]:
This requirement simply means that copyright cannot exist in ideas[12]. Copyright protection basically involves the expression of an idea, not the idea itself[13]. As Amedee noted; “ideas’ for instance, though upon them civilisation is built, may never be ‘owned’, the law does not protect them at all, but only their expression”.[14] Similarly, in University London Press Ltd. v. University Tutorial Press Ltd.[15] Peterson J. noted: “…copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in the case of ‘literary work’ with expression of thought in print or writing…” For example; In Tate v. Thomas[16]: “A” conceived an idea for a play. “B” wrote down the lyrics and dialogues. The court held that B had copyright since he fixed the idea in a definite medium of expression[17]. A similar conclusion was reached in Donoghue v Allied Newspapers Ltd[18] where the court held that the owner of an idea has not copyright in a product/expression which another produces notwithstanding that it embodies the idea.
Although this requirement appears unfair to the person that conceived the idea, it is necessary to prevent frivolous and unfounded litigations. Everybody can have an idea but few can take the additional step of putting it into writing (or actualising it as the case may be).
The implication is that a literary, musical or artistic work must be fixed in a definite medium of expression from which it can be communicated or perceived.
[1] Section 102 of the Copyright Act defines the subject matter of copyright as “original works of authorship fixed in any tangible medium of expression” and includes: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, and architectural works.
[2] Section 1(2a).
[3] H. Laddie, P.Prescott and M. Vitoria,; The Modern Law of Copyright and Designs London, Butterworth’s, 1995) 1.7.
[4] Ladbroke Ltd v. Hill [1964] 1 All ER 435.
[5] University of London Press limited v. University Tutorial Press. [1916] 2 Ch.601.
[6] [1916] 2 Ch.601.
[7] Chicago Record-Herald v. Tribune Association (7 Cir,. 231 F. 2d 550, 553)where the same manner, format and style of presentation was copied. The court held that there was infringement.
[8] J.O. Asein, Nigerian Copyright Law & Practice (2nd ed.) p. 75.
[9] ICIC (directory publication limited) V. Ekko Delta (Nigeria Limited) and Another (1977) F.H C.L.R 346.
[10] Lord Atkinson’s Statement in Macmillian and Co v Cooper (1923) 40 TLR 186 at page 187.
[11] Section 1(2b).
[12] See Section 102 of the United States’ Copyright Act 1976: which contains a similar provision.
[13]Hollinrake v Truswell (1894) 3 Ch 420, 63 LJ Ch 719, 7 R 568, 38 Sol Jo 706, 71 LT 419, 10 TLR 633, CA.
[14]Amedee E. Turner (1962) The Law Of Trade Secrets; Michigan Law Review, Vol. 61, No.2 (Dec.,1962) DOI http://www.Jstor.org/stable/1286817.
[15] [1916] 2 Ch.601.
[16] [1921] 1 Ch. 503.
[17] Note however that where the person fixing the idea on the direction of the conceiver, he is regarded as a mere tool. See, Donoghue v. Allied newspapers ltd [1938] Ch. 106. (For example, a person dictating to his typist would have copyright notwithstanding the fact that the typist is the one that fixed the words).
[18] [1938] Ch. 106.
