Understanding the “Property” component of Intellectual Property –  A Copyright Exposé 

Definition of Terms 

Property: A thing or things belonging to someone; or possessions collectively;

Intellectual Property: Intangible property that is the result of a creative process of thought and development, such as patents, copyrights, Trademark etc, protected by statute;

Governing Statutes in Nigeria: Copyright Act, Cap 68, Laws of the Federation of Nigeria (“LFN”) 1990; Trademark Acts, Cap 436 LFN 1990; Patent and Designs Act, Cap 344 LFN 1990

Copyright: A legal right that gives the author of an original work the exclusive rights to employ the work so created as he deems fit and to control its distribution, usually for a limited time, with the intention of enabling him to receive compensation for the intellectual effort.

It prohibits others from making use of the works created without permission or authorization as required by the law.

Understanding Copyright 

In Nigeria, certain works are eligible for copyright protection and Section 1 of the Acts lists them as literary works, musicals works, artistic works, cinematograph works (includes photographs), sound recordings and broadcasts. For protection to suffice, the work must be original (sufficient effort expended on making it) and it must be fixed in a definite medium of expression from which it can be perceived, reproduced or communicated. Copyright protection is available for any eligible work once these conditions are met and no further act of registration is required to give it the right. Our focus in this exposé will be largely on musical and cinematograph works.

Musical works fall into the sound recording category. Section 5 of the Act provides that copyright in literary or musical works shall be the exclusive right in Nigeria to control/authorize the following acts:

1. reproduce the work in any material form;
2. publish the work;
3. perform the work in public;
4. produce, reproduce, perform or publish any translation of the work;
5. make any cinematograph film or a record in respect of the work;
6. distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire,

A loan or similar arrangement;

1. broadcast or communicate the work to the public by a loudspeaker or any other similar device;
2. make an adaptation of the work; and
3. do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the

work in sub-paragraphs (I) to (vii) of this paragraph

Section 5(c) expresses that for cinematograph films (including photographs), the author shall have the exclusive right to do or authorize the following acts:

1. make a copy of the film;
2. cause the film, in so far as it consists of visual images to be seen in public and, in so far as it consists

of sounds, to be heard in public;

1. make any record embodying the recording in any part of the soundtrack associated with the film

by utilising such soundtrack;

1. distribute to the public, for commercial purposes copies of the work, by way of rental, lease, hire,

A loan or similar arrangement.

According to Section 10, the only ways by which another person can have the right to exploit an author’s work is either by assignment/license, testamentary disposition (in a will) or by operation of law. For the consent to use, adapt, recreate, remix, remake or otherwise employ an original work as the foundation for creating another, the best course of action is to either obtain approval to ‘sample’ or ‘interpolate’ the work, secure the assignment of the rights in the song, or apply for a license to make use of it.

Please note that there is no requirement of registration of works before copyright subsists in them. Once you have created a work (musical recording or photograph) – i) with sufficient effort to give it an original character; and ii) have the work fixed in any definite medium of expression from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device, copyright immediately subsists in the work. Up until recently, there has been the erroneous belief by a section of the creative industry that where they had not ‘registered’ their copyright in the song, they were not protected. This is a misconception. In these days of massive technological advancement, specialized tracking of works on the internet, widespread and almost instantaneous distribution of songs via web platforms, creators appropriating works owned by other artistes without the requisite license, permission and authorization will only have themselves to blame.

Every piece of recorded music has at least three copyrights.

▪ First is the right in the actual sounds which is the performance of the work by the artiste;

▪ second is the notes of the song the musician plays to create the song; and

▪ lastly is the lyrics of the song written by the songwriter(s).

These three copyrights can inure in the same person or entity but the licenses for them must be obtained separately.

The Nigerian entertainment industry today is rife with ignorant, flagrant and most times inexcusable infringement of existing copyright in other works of arts. This trend has become so rampant that even artistes whose works are infringed upon do not even bat an eyelid about this intellectual theft. Songs are produced every day with the same beat, the same lyrics that we only now differentiate songs based on the artiste performing them. The aim of the Act is to ensure that authors of literary, artistic, musical, cinematograph, sound recordings and broadcasts works have the exclusive right to control the reproduction, performance or other exploitation of the works. The Act stipulates that there would be an infringement of the rights of the author where a new work among other things is made “…in any form recognizably derived from the original.” 

Duration of Rights 

The right to preclude others from exploiting an author’s rights in literary, musical or artistic works other than photographs lasts until seventy (70) years following the death of the author.

Copyright in films and photographs, however, subsists for 50 years after the year the work was first published.

Punishment for Violation 

For every breach of the law, there is a punishment. As a matter of fact, it is no law if it has no punitive measures. Section 14 of the Act states that copyright is infringed by any person who without license or authorization of the owner of the copyright carries out certain proprietary acts conferred on the author by the law.

Asides from the fact that there is criminal liability for the sale, hire or trade of any infringing copy of a work in which copyright subsists, action for damages are also open to the author of the work. To drive home this point, I will explain briefly the remedies available to a plaintiff (author, licensee or assignee of copyrighted work) for its infringement.

Damages, Injunction, Anton Piller Order, accounts of profits and conversion rights are the remedies available to a plaintiff in an action for infringement of copyright. Damages are of two types; general and special. We also have the punitive and nominal damages as sub-classifications.

General damages flow from the acts of the person infringing and the quantum of damages need not be pleaded or proven.

The judge can make an assessment of the quantum of damages to be awarded in line with the pleadings of the plaintiff. There are also punitive damages that are mainly intended to punish the defendant and to deter him from similar behaviour in the future.

According to section 15 of the Act, the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement will guide the court in assessing the damages payable. Belgore J stated in O. Yemitan v The Daily Times (Nig.) Limited (1980) FHCLR, 186 that:

“…in the circumstances of this case, I have no doubt that the defendants flagrantly infringed the copyright of the plaintiff, taking advantage that few artists in this country are aware of their rights under copyright law and the defendants believing that the profit to be realized from the infringement, were litigation to be undertaken, would outweigh any nominal damages to which the plaintiff was entitled… I have no doubt that the defendants were motivated by glitters of profits in 

infringing the copyright of the defendants and perhaps they were intoxicated by actual profits in treating him so contemptuously afterwards.” 

Other available remedies are Injunctions which can be granted by the court to prevent a person from doing or continuing to do a wrong (per F.O Babafemi ); Anton Piller Order which is given ex parte essentially for inspection, photographing and delivering up of infringing materials in the possession or control of the infringer.

There can also be an order to account for profits made by virtue of the infringement and conversion of all infringing copies of any work to the rightful author. I will not belabour the matter by citing instances of careers that have been wrecked because of copyright misappropriation.

Summary of steps to be taken to ensure protection and avoid infringing other people’s rights 

▪ Make sure you have the work reduced into a perceivable form, as the Law does not protect an idea;

▪ Execute the right contacts with the people working on production, mixing and songwriting so you are clear on who owns what rights;

▪ If you are of the opinion that in disclosing your works to third parties, either for collaboration, investment or other forms of assistance, you may be exposed to the possibility of theft, execute a non-disclosure/ non-circumvention agreement;

▪ Most times, the above may be difficult to achieve, so ensure you leave a paper trail. In your email, put a short note that has a standard form clause stating that you hold the reader to a duty to not disclose or circumvent your efforts and express the penalty for such.

Then in the body of your mail, drive attention to this note. This will give a level of protection and if matters go to court, it is evidence of ownership and communication and makes your case easier. I am yet to see it tested to know if the court will enforce the penalty, but it does not hurt to try;

▪ Take advantage of publishing deals that will go after folks using your works wrongly;

▪ Make yourself and team easily accessible to people that want to obtain licenses as some people use songs when they have tried but could not reach the artiste;

▪ Join a collection society to pursue royalty collection;

▪ Work with professionals to develop new earning models for yourself i.e merchandising, website sales, etc.

▪ Monitor the figures on the distribution as a statistical basis for future use;

▪ Be aware of new inventions and revenue-earning streams;

▪ Have a website and release your music from it;

▪ Always obtain permission or license to use/sample;

▪ When you’re covering, ensure that you acknowledge original song in the cover graphics;

▪ Seek mentorship.

Lastly, stay up to date with all you need to know about African music at SOA, right here.

Demilade Olaosun as the Principal Partner at RBMM Solicitors, Media and Entertainment Attorneys, leads the pack of brilliant and passionate people that insist on delivering only the best services with integrity and professionalism.  He practised law in one of the top law firms in Lagos State, providing various local and foreign clients with services in the areas of Electricity Law, tax forensic investigation, transaction support and general project advisory services.  He left the firm to pursue his passion of providing strategic advisory services in the Nigerian entertainment industry and grooming the careers of emerging entertainers to achieve the greatest of heights.  Demilade recently led the Legal Team that advised a Nigerian Music Streaming start up on the offtake of Equity in the Company by Mr Matthew Knowles, Former Manager and Father of Pop Star, Beyonce.

Demilade graduated with the best result in the Faculty of Law, the University of Lagos in 2008, winning several academic prizes including the Vice-Chancellor’s prize for the best all-round performance in the Faculty of Law 2007/2008 and the Dr Taslim Elias prize for the best student in Jurisprudence.  He currently serves as a legal coach to several media and entertainment practitioners.

Understanding the “Property” component of Intellectual Property A Copyright Exposé