CHAPTER ONE
GENERAL INTRODUCTION
1.0.0 INTRODUCTION
The law of copyright has its origin in English law. The first truly copyright status in England was the statute of Anne enacted in 1709[1]
Before that Statute no real attempt had been made to give protections to creators although the introduction of printing into England from continental Europe [2]had made it imperative that authors, at least, of books, be given some measures of protection. However, reading and learning were encouraged. An act which was enacted to control hoarding and retails sale of goods by foreigners were made not to extend to books. This statute was only repealed 50 years later when it was clear that many English men had acquired skill in printing.
The Act of 1533 prohibits the importation of bound books as well as their sale. The crown also controlled printing by means of direct statute and by the granting of licenses, but neither was intended for the benefit of authors but rather to ensure non- publication of offensive materials and the enrichment of crown coffers. Thus for example, and Act of 1662 [3] after reciting that ‘many evil disposed persons are being encouraged to print and sale heretical, schismatical, blasphemous, seditious and treasonable books, pamphlet and paper” provided that no person was to print any such material either within England or any other of his majesty’s dominions or in the parts beyond the seas. It further ordained that no private person must, at anytime, print or caused to be printed, any book or pamphlet unless it had first been entered in the register of the company of stationer of London and had first been licenced and authorized to be printed. Thus, author could not, themselves, print their book unless they were members of the company. Fox writes that the stationers’ company dated from 1403 and started as a craft guild. It was made a company by Henry viii and granted a chartered in 1557.[4]
The Statute of Anne gave the background against which it was enacted. Printers had taken the liberty, without the consent of authors, to print books and others writings, to the very great detriment of authors ‘and too often to the ruin of them and their family’. For preventing such practices for the future and for the encouragement of learned men to compose and write useful books it gave the authors of any book already printed the sole right of printing such book for a term of 21 years and to the author of a book not already printed or written the sole liberty of printing and reprinting it for the term of 14 years.
The act of certainty could actually be one of the world’s most tedious tasks a man can embark on. Because this could involve a lot of sleepless nights, risk taking and immeasurable expenses in some case. With all these rigour a ‘brain child is born and nurtured to maturity’. Then a violation of this human effort would be most unfair if these works are not accorded adequate protection. Biblically, protection has already been accorded a man wherein the tenth commandant made it clear that one must not envy a neighbors wife or property. In essence a neighbor’s world which constitute, his wife and properties forms his home, his own creative ability and thus his work must be respected and accorded the necessary protection against piracy.
The version for the protection of a creative work is not far fetched. The reasons are;
In the first instance it could be a showcase of acute injustice and unfairness, if ‘Peter is robbed to pay Paul’. That is to say that the owners of a work should not be robbed of his idea by allowing indiscrimination piracy of his work without proper authorization from the inventor. This was even confirmed by the Universal Declaration of Human Rights 1948 that everyone has the right to protection of their moral and material interest resulting from any scientific, artistic in literary production of which he is author. According to Lord Atkin in the case of MacMillan & Co Ltd V Cooper (K & J)
‘which says it is the product of labour, skill and capital of one man which must be appropriate by another not the elements or the raw materials if we may use the expression upon which the labour have been expended sufficiently to impact the product some quality or character which the raw material had not possessed and which differentiates the product from the raw materials’.
From the quotation above it is evident that it could be a moral injustice and breach of ethical value if piracy is given free hands to operate. Creativity is mostly encouraged by the benefit (economic value money) derivable from it and this cannot be over emphasized judicially. This has been acknowledged that whenever or wherever the commercial value of an entity, be either tangible or intangible, has been brought about by the expenditure of time effort, labour or money, the person who created that commercial values has propriety right to its commercial exploitation. However, before a work could have any economic or commercial values it must have been exhibited by letting it into circulation for the public to see, appreciate and possibly purchase. And it has to do with internal work that is unpublished then it has only Cosmetic of Aesthetic Values which copyright law protects. At this juncture, it would interest one to know that any creative work is gingered by the benefit to be derived from it.
The act of piracy is no doubt a criminal act which should not be encouraged and the best possible way to dissuade its occurrence is to protect these works and place a sanction on it for any of its violators. This would even assist the society in being more creative which eventually would bring about development in the society.
1.1.0: BACKGROUND OF THE STUDY
The author of all creation is no other person but God Almighty. In the beginning, God created the heaven and the earth.
This could have prompted the gradual growth of copyright claims (through in the true sense of it God’s works were not protected against copyright infringements).
Tracing the long journey copyright has made before its arrival at the presumed destination, the Elizabethan theater in England could be marked as the starting point of copyright practices. During this period, playwrights were adequately and sometime handsomely paid as were the author of Author Sacramental’s of Spain.
The Elizabeth playwright was a period employed, and thus is given exclusive right to his works for as long as he is pleased, more so that the playwright members would have to pledge their full allegiance to the company to which they owned their livelihood. This was what was obtainable during the Shakespeare eras particularly his own company.
France was also seen to establish slight trace of copyright as she made available Hotel De Bougogue for commercial purpose whereby the payment made (or not made) to the playwright frequently a rose to litigation. However, this was to stop at the close of the 17th century, through rights exercised by company upon their playwrights remained no less total.
In Great Britain, the Copyright Act of Queen Anne (1709) enacted, confer upon authors the right to cause their work to be printed, a right which hitherto had been reserved exclusively for publishers.
In France, The Consil Duroi gradually broke the publisher’s privileges, to benefit of authors. Then came the French revolution, which introduced more modern concept of copyright, particularly with reference to performing rights.
This era in the history of mankind experienced a high level of international contact and contracts which necessitated the need to have a level plain ground on which every one contracting outside its borders could operate.
The International Literature and Artistic Association Founded by Victor Hugo came into being which eventually culminated into the Berne Convention of 1886, which advocate the principle of absolute equality of foreign and natural author. All states that are parties to the convention are hereby expected to ratify it.
Owing to the fact that the protection granted by the Berne Convention, was on the high sides for many countries, which prevented it from becoming truly worldwide in character brought about the Geneva Convention of 1952 entitled the universal copyright convention and finalized under UNESCO’s au spices.
This narrowed to some extent the scope of the Berne Convention Nigeria is a signatory to the Universal Copyright Convention of 1952. Although, prior to this date Nigeria has been hit by the wave of the 1911 England Copyright Act until the 1970 Act was promulgated as decree No 61 of 1970 and by 1988 another act was enacted and couched in Cap 28, Laws of Federation Of Nigeria 2004 which happens to be the current copyright Act in uses.
1.2.0: OBJECTIVES OF STUDY
The pivot of this study is to consider the roles of the Nigeria Copyright Act as regards works to be protected therein.
Also to be considered is the aspect or rather functions of the Nigeria copyright Commission (NCC) as regards the aggressive steps taken to curtail infringement and consider the possible remedies for infringement when it occurs.
1.3.0: FOCUS OF STUDY
The rate at which infringement of copyright works is been displayed with little or no shame in Nigeria has eventually tickled my fancy. This has made me delve into this study, having in mind that on the break of every new dawn in our Nigeria of today new works do evolve, particularly our film industry has been greatly favoured. The Nigerian film industry could almost be compared with the American film industry (Hollywood) in terms of film production. The area of painting, assigning and of course literary writing is going through a radical revolution in our society which of course as called for a public applause. These works have to be immuned against any form of infringement so as to keep its original and even encourage new creative works and ideas thus, building a better industrial and well protected society.
1.4.0: SCOPE OF THE STUDY
The significance of this study is to give an insight into the copyright system in Nigeria, which was undoubtfully adopted after the English copyright law in the areas of the body or groups of bodies to see to the administration of the laws particularly when issues of infringement occurs. Also to consider, are other bodies involve in this race and make recommendation and suggestion where the act seems to be lacking.
1.5.0: METHODOLOGY
The material is predominately based on the provision of the Copyright Act Cap 28 Laws of Federation of Nigeria (LFN) 2004; various textbooks, newspapers and journals have been extracted. The materials employed in this study were logically and accurately carried from textbooks of renowned authors in this dynamic field of law. Also used is the Nigerian Copyright Act and its subsequent amendment which stands as the bases on which the legal concepts involved in this work.
1.6.0 LITERATURE REVIEW
The collective works of various authors as contained in the books;
Hilary Pearson and Clifford Miller in his Book Titled; Philosophy of intellectual property opined that Intellectual property Law is about legal right. The owner of intellectual property has certain rights recognized by Law to control what is done with the intellectual property. He believed that the subject matter of intellectual property right is in general terms, the product of thought, creativity and intellectual efforts.
Michael Edenborough in his Book; Title Intellectual property Law he distinguish work that are qualify for protection to those that do not. According to him literary work is any work other than a dramatic or musical works, that is written, spoken or sung s.3(1).
This includes a table, a compilation and a computer program. There is no registration for the works to have any literary merit (Exxon corporation v Exxon issuance consultant international Ltd (1982).Example of this work include: Private letters (Donogbue v Allied Newspapers Ltd) 1938
David Bainbridge in his Book Titled; Intellectual property said, Fundamentally, copyright Law exist to prevent other from taking unfair advantage of a person’s creative (work) efforts. The court have displayed every little sympathy for plagiarists and frequently have demonstrated that copyright Law ought to be interpreted in such a way as to protect the interest of the copyright owner.
There are other books that has contributed immeasurably to this long essay among which are the Copyright Law And Administration as Edited By Professor E.E Uvieghara particularly the works of Akinola Agunda- The Nigerian Copyright Law And It’s Relevance To Social Change; Dan Awodoye’s Write Up On Copyright ‘ Administration In Nigerian Need For Effective Infrastructure’ Jide Malomo’s A Copyright Practice In Nigerian; some Critical Issues All Contained In Professor E.E Yvieghara edited books Michael Edenborough; Intellectual Property Law has made it undoubtedfully convenient for this work and the copyright act Cap 28 Laws of Federation Of Nigeria. 2004 (LFN) has contributed to the success of the works.`
1.7.0: DEFINITION OF TERMS
There are some key words used in this research work that need to be defined and properly explained in both general and legal terms. These words are;
COPY: The Black’s Law Dictionary[5] defines copy as copying. a transcript double initiation or reproduction of an original writing , painting instrument or the like under the copyright law ‘copyright’ of a literary work consist in exact or substantial reproduction of the original using the original as a model as distinguished from all independent production of some things, and a ‘copy’ is that which comes so near to the original as to give every such ordinary observation what would cause it to be recognized as having been taken from the work of another the access to imitate is relatively opened to all and all spheres of life nevertheless there are limitations as regards some particular works.
RIGHT: In simple sentence we can say a right is the ability to own, possess lay claim even power to destroy. This concept right could be moral, constitutional, right of privacy, right in court and many more. But their moral right is what we shall be considering in this piece of work.
Moral rights are simply aimed at protecting the reputation of an author of a creative work and also the integrity of the work. This in essence gives power of free action and a capacity residing in one man of controlling copyright work with the assent and assistance of the state against the actions of others. Now having known what copy and right means the coupling together of the two words would give birth to the Copyright.
COPYRIGHT: This is an intangible corporeal right granted by state to another or original or of certain literary or artistic production, whereby he is invested for a specified period with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them. Furthermore, common law in its bid to define copyright also protects unpublished works.
COMMISSION: According Black’s Law Dictionary[6] it means a warrant or authority or letter patent, issuing from government or one of it department or a court, empowering a person or persons named to do certain acts, or to exercise the authority of an office.
ADMINISTRATION: Black’s Law Dictionary[7] define this as; Management or conduct of an office or employment; the performance of the exercise of duties of an institution, business or the likes in public law.
INFRINGEMENT: An infringement is defined as the unauthorized making, using, selling, importing or otherwise any product or process as outlined by any one of the claims of a patented invention. It is enforceable through the courts.
An infringement is generally determined through the Courts. To establish whether an infringement has taken place, the patent owner or a licensee of the patent needs to prove the following:
· That an infringing act has taken place
· That the infringing act has taken place after the patent application has been published
· That the prohibited act took place in a country where the patent has been granted
· That the prohibited act was in relation to the monopoly found within any one of the claims of the Past
1.8.0: CONCLUSION
Copyright in its original form centers more on literary work, artistic, musical sound recording, cinematography and other works of arts and quite different from the aspect of industrials property which constitutes patents trade marks and industrial design. Peculiar to copyright is the expression of initiatives and nothing short of it, and this can be ascertained by eligible for protection if the originality can be ascertained. Though copyright works are properties but the natural sense are not, in most cases physical object to be possessed like cars, cargoes, land etc.
[1]Ann C.19 it is unnecessary to consider whether there was common law copyright and it nature if there was any.
[2] There is no doubt printing originated in Europe although there has been controversy as to it exact place of origin. Similarly there has been controversy as to whether printing was introduced into England first by Oxton who was a citizen of London, soon after 1471 or earlier; see 4.25 Millar v Taylor (1769) 4 Burr 2303
[3] 13 & 14 car II C.33
[4] Harold G. F. The Canadian Law of Copyright and Industrial Designs (2nd ed. Edward Elgar Publishing 1967) p.11
[5] Henry Cambell Black, M.A, Black’s Law Dictionary (6th Edition, published Butterworth and company limited 1891-1991) pg 336.
[6] Henry Cambell Black, M.A, Black’s Law Dictionary (6th Edition, published by Butterworth and company limited 1891-1991) pg 272
[7] Pg 44 Ibid
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