Copyright Protection: Beyond Economic Rights
Intellectual property is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property and some countries recognize more than others. The well-known types are copyrights, patents, trademarks, and trade secrets. The area of law which prevents others from copying or taking unfair advantage of the work or reputation of another and provides remedies is known as Intellectual Property Law.
Copyright under Intellectual Property law gives the owner of a work (for example, a book, movie, picture, song or website) the right to determine how other people can use it. With copyright, a work can only be copied if the owner gives permission.
Popularly, copyright refers to the economic rights of the author. But, many copyright legislations, including Nigerian Copyright Act, also recognize the existence of a right known as “MORAL RIGHTS”. In the world of intellectual property; especially copyright – moral rights are owned by the author or creator of a work. it must be recalled that copyright in works arises automatically and there is no formality regarding registration to pull protection or ownership. Moral Rights were introduced at the Rome Revision of the Berne Convention in 1928 for the Protection of Literary and Artistic Works. Most of the countries have recognized for a very long time that the author of a book or other creative works have rights beyond his purely economic ones.
Moral rights confer on the author, paternity of the intellectual creation and protects the personal and reputational value of a work, as opposed to its purely economic value. In Nigeria, this right is provided for in Section 11 of the Copyright Act; LFN 2004
The moral right first surfaced in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work 1886 (as amended). It is noteworthy to state that Nigeria became a signatory to the Berne Union in 1993. Article 6bis {1} provides that:
“Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation.”
Accordingly, Section 11 of the Nigerian Copyright Act provides the right of an author as:
(1) A) “to claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts reserved for the right owner in section 6 except when the work is included incidentally or accidentally when reporting current events by means of broadcasting.”
(b) To object and to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation.
(2) The rights referred to in subsection of this section, are perpetual, inalienable and imprescriptible.
In view of the above provisions of the Berne Convention and the Nigerian Copyright Act, two moral rights can be deduced; The Right of Paternity or Authorship and Right to Object to Derogatory Actions on a work.
RIGHT TO PATERNITY OR AUTHORSHIP
The author is the creator of the work. He is sometimes also the copyright’s owner, but if an employee, the owner of the copyright could be his employer (subject to the terms of contract as binding between both parties). Pursuant to Section 11 (a) of the Nigerian Copyright Act, a publisher or a reporter of a part or whole of a copyrighted work should acknowledge the author in the publication. What this means is that when an author creates a work and the same work has been copyrighted, then the author’s name should appear on the work anywhere in the world that part or whole of the work is being used (with the permission of the author if for commercial purposes). For instance, If I write a book, and in a publication a part of the book is quoted, the right to paternity requires the publisher to reference my name following the quote or before the quote. The same thing applies to work of art, songs, craft, among others. In the case of Meskenas vs. ACP Publishing Property Ltd 369, the respondents purchased the right to publish the appellants 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 a correction and an apology. After many phone calls there was no apology. It was held that the appellants’ moral rights relating to the portrait has been infringed and he was awarded damages. In essence, failure to acknowledge the author where phrases or passage are taken verbatim from a copyrighted work would amount to an infringement of the author’s copyright. Though, this is not without exceptions.
RIGHT TO OBJECT TO DEROGATORY ACTIONS ON A WORK
Derogatory treatment would involve doing anything in relation to a work that is “prejudicial to the author’s honour and reputation”. The right of integrity encompasses adding to, deleting from, altering or adapting the relevant work. Or, by dealing with a work in a manner inconsistent with the character and integrity of the author. See; Joseph vs. National Magazine Co. Ltd. 373.
The Nigerian Copyright Act in Section 11 {1} {B} further provides that an author may seek relief where he is connected to distortion, mutilation or derogatory in relation to his work. Comprehensively provided in Article 6bis of the Berne Convention: “…the author has the right to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honor or reputation.”
For instance, if I make a photoshoot with my male friend (flaunting our muscles). Imagine a writer of a homosexual story uses (with or without permission) such picture as his cover. This would certainly tarnish the reputation of the subjects in the picture; unless he discloses same to the subjects – This completely violates the moral right of such copyrighted image. Also, if an author publishes a book, a reader who disagrees with the content cannot for any reason publicly set the book on fire—distortion—as that would offend the moral right to the integrity of the book. Most importantly to note, the right to integrity is in the work, not in the author.
In addendum, it is very essential to note that these rights mentioned in Section 11 of the Act are “perpetual, inalienable and imprescriptible” to the extent referred to in Section 5 of the Act. See Section 11{2} of the Act; LFN 2004. In other words, moral rights are not transferrable, and end only with the life of the author – which can further be enforced by his or estate. Even if the author has conveyed away a work or her copyright in it, he or she retains the moral rghts to the the work. Though, a person may decide tobwaive his rights to be identified as the author or director of the work in question and/or his right to object to derogatory treatment of the work.
It is no surprise to see people using works of authors indiscriminately in this part of the world – Nigeria. This is largely because most people do not know the implication of same; whereas the victims also are not aware of their rights of authorship and integrity in their intellectual creation. To overcome these challenges, it is my recommendation that the Nigerian Copyright Commission should endeavour to undertake awareness programs regarding Copyright.
Mohammed Ismaila Sesan is a student of law who has keen interest on Intellectual Property Law . He writes from the Faculty of Law, University of Ilorin and could be reached for further interaction on 08065995289.
