WORKS FOR PROTECTION UNDER COPYRIGHT LAW

WORKS ELIGIBLE FOR PROTECTION UNDER COPYRIGHT LAW

 

The first question under this sub-section is what ‘works’ are eligible for protection? The Act stipulates the kind of works that are eligible for protection and the requirements that must be satisfied to enjoy copyright status. It is not unusual to find persons laying claim to copyright over materials that either do not qualify under the Act or with respect to which sufficient skill, judgment and labour have not been expended to give it an original character. S.1(1)(a)-(f)[1] provides thus: “Subject to this section, the following shall be eligible for copyright: (a) literary works, (b) musical works, (c) artistic works, (d) cinematograph films, (e) sound recordings and broadcasts”. Aside from the neighbouring rights, therefore, there can be no copyright in any work that does not come expressly or impliedly within the six categories of works enumerated. The Act[2] defines work to include “translations, adaptation, new versions or arrangements of preexisting works, and anthologies or collection of works which by reason of the selection and arrangement of their contents present an original character”.

Now, let’s look at the works for protection under copyright law

 

Literary works

 

The word “literary works” includes, irrespective of literary quality, any of the following works similar thereto: novels, stories, poetical works, plays, stage directions, film scenarios and broadcasting scripts. Others include choreographic works, computer progarmmes, textbooks, treaties, histories, biographies, essays and articles. Further, it includes encyclopedias, dictionaries, directories and anthologies, letters, reports and memoranda. It further more includes lectures, addresses, sermons, written tables or compilations, and law reports, excluding decisions of courts and written tables or compilations[3].

 

Similarly, Peterson J. in the case of University of London Press vs. University Tutorial Press[4] expressed thus:

work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word literary seems to be used in a sense somewhat similar to the use of the word “literature” in political or electioneering literature, and refers to written or printed matter.

 

It should be noted that under Nigerian Copyright Act, the items that qualify as literary works are set out in a long list that includes computer programmes. Secondly, nowhere is the word “writing” used in relation to literary works generally, except in the case of “written tables and compilations”[5] and so no definition of the word is necessary or even offered. All that is required for a literary work to be eligible is that it be “fixed in any definite form of expression now known or later to be developed, from which it can be perceived, reproduce or otherwise communicated either directly or with the aid of any machine or device”[6]. There is no reason why a literary work that is fixed in a tape recorder or other recording device, for instance, should not be protectable as such under the Nigerian Copyright Act, so long as it can still be classified under the ten sub-heads of literary work or works similar thereto.

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WORKS FOR PROTECTION UNDER COPYRIGHT LAW
WORKS FOR PROTECTION UNDER COPYRIGHT LAW

 

This was a statement made in 1916, which would not stand now due to advancement of technology in the 21st century. In Masterpiece Investments Ltd & Anor vs. Worldwide Business Media Ltd & Ors[7], the main issues for determination was whether the article in which copyright was alleged had violated in a literary work, and, if so, whether there was an infringement of the work. The evidence before the court revealed that sometime in 1989 one of the plaintiffs’ clients commissioned them to do a write up on the image of companies known as the Edison Group of Companies. The plaintiffs published the article in the Business Magazine owned by the defendants. A few months later, however, another article on the image of the third defendant, Ugochukwu & Sons Ltd appeared in the same Business Magazine. The two articles contained many similarities and it was obvious that the contents of the second write up were copied mainly from the write up on the image of the plaintiffs’ client company. When efforts by the plaintiff to seek redress from the defendants yielded no positive results, the plaintiffs took this action against the defendants. The court held that the write up by the plaintiffs in the business magazine was a literary work. Odunowo J. stated inter alia “…there is no doubt in my own mind that the said article is a literary work which is eligible for copyright under section 1of the Copyright Act”.

Musical Works

A musical work is defined in the Copyright Act as any musical composition, irrespective of musical quality and it includes works composed for musical accompaniment[8]. This consists of songs, choruses, operas, musicals, and may be composed for one instrument (solos)[9]. The Supreme Court in Ghana, in the case of C.F.A.O. vs. Archibold[10] the court held that copyright with respect to musical works implies the subsistence of a manuscript of written matter setting out the distinctive combination of melody and harmony or either of them. That mere words or verses with no intelligible musical notation indicating the melody did not qualify to be called musical works. The views in this case are relevant in the case of mere visual representation. The composer who is illiterate in music would be well advised to put his music on audio tape or some other recording device in order to gain protection. Otherwise, he stands the risk of being denied copyright, if he merely improvises a tune from memory without having reduced it to intelligible notation or a sound recording.

Artistic Works

Section 51 of the Copyright Act[11] defines “artistic works” to include, irrespective of artistic quality:

 

any of the following works or works similar thereto: paintings, drawings, etchings, lithographic, woodcuts, engravings, prints, maps, plans, and diagrams. Others are works of sculpture, photographs not comprised in a cinematograph film, works of architecture in the form of building models. Further, it includes works of artistic craftsmanship also (subject to subsection (3) of section 1 of this Act) pictorial woven tissues, articles of applied handicraft and industrial art.

 

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Under section 1(3), an artistic work is not eligible for copyright, if at the time when the work was made, it was intended by the author to be used as model or pattern to be multiplied by any industrial process. However, the Act provides no guide on what would qualify as industrial multiplication. Nevertheless, it should be taken to mean no more than that it should “be possible as reproduce the design upon articles en mass”. It needs not always involve the use of a machine. In as much as the artistic work is not intended for industrial exploitation or to be industrially multiplied, it is protectable under copyright irrespective of whether it could be a proper subject of a registered design or not[12]. Since the Act expressly defines artistic works to include “works” of architecture in the form of building models” such architectural models are not to be confused with other models or pattern intended for industrial application. In the case of Maurice Ukaoha vs. Broad-Based Mortgage Finance Limited & Anor[13] in an infringement of an artistic work, the plaintiff led evidence to show that he constructed 17-storey architectural model and lent it out to the defendants to display temporarily in their conference room, but, he saw the architectural model in a newspaper without permission. The defendants had claimed that the model was their proposed headquarters in Abuja. Jinadu J. held that copyright exists in the model work, which is an artistic work of art made and constructed by the plaintiff.

 

 

 

 

 

 

 

[1] Copyright Act, Laws of the Federation of Nigeria, 2004.

[2] S.51, Copyright Act, ibid

[3] Ibid

[4] (1916)2 Ch.601 at 608. See also Masterpiece Investments Ltd & Anor vs. Worldwide Business Media

[5] Ibid.

[6] Section 1(2)(b), ibid.

[7] (1997) F.H.C.L 496

[8] Section 51, ibid

[9] Asein, J.O. Op cit. p.44.

[10] (1964) G.L.R. 718.

[11] Cap C28, Laws of the Federation of Nigeria, 2004.

[12] Asein, J.O. op cit. p.47

[13] (1997) 2 FHCLR 477

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