Infringement of Right of False Attribution

Infringement of Right of False Attribution

 

Right of False Attribution

 

Right of attribution is the right of the author of a work to be identified as such whenever the work is used in one of the ways corresponding to the exercise of economic rights, including reproduction. The identification of the author must be in accordance with the author’s wishes. Or, if these wishes are not known, in a form that is “reasonable”. Section 12(a) of the Copyright Act[1] provides for the right to claim authorship, which is the fact of attribution thus:

 

the author of a work or the owner of a work which copyright subsists has the right (a) to claim authorship of his work, in particular that his authorship be indicated in connection with any activity which is referred to specifically in section 6 of the Copyright Act except when the work is included incidentally or accidentally when reporting current events by means of broadcasting.

 

This right, unlike the economic right, cannot be granted to another person, but the author can waive it. These rights can be infringed. In the case of Meskenas vs. ACP Publishing Property Ltd[2], the respondents purchased the right to publish the appellant’s photograph. They wrote on the painting that ‘Jiawei Shen’ published it, but in fact, it was by the appellant. He saw the photograph and asked his son to contact the respondents to obtain correction and an apology. After many phone calls, there was no apology. It was held that the appellants’ moral rights relating to the portrait have been infringed. His right of attribution has been breached. He was awarded damages. The Copyright Act calls infringement of moral rights a breach of statutory duty that is actionable. Sections 19 (1) and (2) of the Act provides:

  • Infringement of the rights conferred by sections 10 and 12 of this Act is actionable as a breach of statutory duty owed to the person entitled to the right. The persons whose rights have been infringed shall be entitled to an award of damages, injunction and any other remedies as the court will deem fit to award in the circumstance.

The right of attribution can be infringed in the following ways: failure to acknowledge the author where phrases or passage are taken verbatim (word for word) from a published or unpublished text. Also the use of a summary of a work which contains the idea of others and presents the essence of an argument in language that compresses the original language of the source without acknowledgment. It also means the reproduction, publication, public performance, communication (transmission electronically or making available online) or adaptation of the work. In the case of Archibold vs. Sweet[3], the plaintiff published a book in his own name “a summary of the law relating to pleading and evidence in criminal cases with precedents of indictments, etc”. He sold the copyright of the second edition to the defendant and subsequently the third edition.

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The plaintiff complained that there were mistakes in the third edition and that his moral rights (paternity) have not been attributed. He instituted proceedings for damages and injury to his reputation, because the writer of the third edition was ignorant of criminal law. It was held that he had the moral right of attribution which he could enforce even after he had parted with copyright and could seek relief if the attribution of paternity would be injurious to his reputation.

 

[1] Cap C28, Laws of the Federation of Nigeria, 2004

[2] (2006), FMCA 1136

[3] 172 E.R. 947

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