JUDICIAL TREND IN APPLICATION OF COPYRIGHT PRINCIPLES

JUDICIAL TREND IN APPLICATION OF COPYRIGHT PRINCIPLES: ELIGIBILITY CRITERIA AND EFFECT OF REGISTRATION OF WORKS FROM THE PERSPECTIVE OF TV XTRA PRODUCTIONS LTD V NATIONAL UNIVERSITY COMMISSION AND ZAIN NIGERIA.

“Lanre Ridwan Ajetunmobi is a research fellow at Nigerian Institute of Advanced Legal Studies, Abuja. His research interest are in intellectual property law and arbitration Law”.
Email: ajetlarry1@yahoo.com

 

Introduction

The case of TV XTRA PRODUCTIONS LTD v NATIONAL UNIVERSITY COMMISSION AND ZAIN NIGERIA provided the opportunity for the court to adjudicate on the basic copyright principle of eligibility. The main query is whether a work requires registration for copyright protection. This review is of the perception that the judiciary is failing to live up to expectations regarding copyright matters. There is no provision on registration in the Copyright Act of Nigeria. Originality and fixation are the determining factors for copyright protection. Therefore, it is crucial to explore the position of registration of copyright works in Nigeria from the prism of TV Extra’s case.

The concept of copyright registration is dynamic and territorial, as a requirement for the registration of copyright differs depending on the jurisdiction or copyright laws of a state.  Copyright is conferred by statute, and in line with the international and global norms, copyright protection is automatic and requires no registration or formality.[1] Once a work meets the minimum standard for copyright protection set by the Berne Convention, the work automatically enjoys protection.[2] Also, as a fundamental rule of copyright law, ideas are not protected, but only the expression of ideas,[3] therefore once an idea or concept is original and fixed in a tangible form, it enjoys protection, save for broadcast in Nigeria.

In simple terms, Originality and fixation are the determining factors for copyright protection in Nigeria without any registration or formality.[4] Although, Copyright Laws of some nations like the US and Canada require registration by owners of copyright works as a requisite for bringing an action for infringement.[5] These works still enjoy protection once the work is created. The effect of the failure to register a work in those states only prevents enforcement of any action in an event of infringement until such registration is done.[6] In Nigeria however, failure to register or notify the Nigerian Copyright Commission of the existence of a work does not affect the right of a copyright owner to commence an action in respect of an infringement suit requiring enforcement.

In the case of TV Xtra Productions Ltd V National University Commission And Zain Nigeria[7], the federal high court sitting in Abuja gave judgment in favor of the plaintiff against one of the biggest service providers in Nigeria, ZAIN, and the NUC for infringing on the plaintiff’s copyright in his work Universities Challenge’ by copying and titled it ‘Zain African Challenge’. The decision was hinged amongst others on the fact that the plaintiff was the first to register its work with the Nigerian Copyright Commission (NCC). Hon. Justice Eko held:

‘It must be stated that it is registration by the NCC that qualifies a person to the exercise of copyright ownership in Nigeria as stated in S. 2(1)(i) of the Copyrights Act of the category of work which the copyright is granted. It is a person who has registered ownership of the copyright in Nigeria that can exercise all the rights that accrue to that registration exclusively.

The question then arises: Does registration of a work confer copyright protection on that work? In order to appreciate and properly answer the question, it is important to briefly appreciate the basic underlying concept and principles of copyright protection.

Eligible works for protection

S 1 of the Act generally provides for the scope of copyright protection by listing the kind of works eligible for protection as well as criteria for protecting them. Such works include literary works, musical works, artistic works, cinematograph films, sound recording, and broadcast. The Act[8] further clarifies the kind of works envisaged under each broad categories. It should therefore be noted that no work shall enjoy copyright protection unless it falls within the classification as mentioned above.[9]

Prerequisite for copyright protection

While the basic idea of preventing people from unauthorized copying or use of copyright work without permission is the main idea underlying and still driving the force of copyright protection, the criterion of originality, fixation, and the connection is the prerequisite that qualifies a work for copyright protection in addition to the broad classification of eligible works.[10] The Act does not provide a definition or guideline as to when will sufficient effort be deemed to have been expended to give a work an original character, but the general guiding principles as provided by case law are that the work must originate from the skill, labour, and judgement of the author, and not copied from another source.[11] It is instructive to state that copyright does not seek to establish a system of monopoly as patents and designs do. The concept of copyright only espouses the negative right of preventing the copying of physical material. Thus, if it can be shown that two precisely similar works were in fact produced wholly independently of each other, there can be no infringement of copyright by the author of either of the works.

The requirement of fixation requires that the work must be reduced to a physical form before it can be granted copyright protection. In other words, for a work to qualify for protection, it must be fixed in any tangible medium of expression now known or yet to be developed in a form from which it can be perceived, reproduced, or otherwise communicated to the public, either directly or with the aid of a mechanical device.[12] It is important to note at this juncture that as a fundamental rule of copyright law, ideas are not protected, but only the manner in which the idea is expressed.[13] It is also instructive to note that copyright is conferred by statute,[14] and in line with international and global norms, copyright protection is automatic and requires no registration or formality.[15]

Appraisal of the Case

Based on the foregoing, its obvious that the court erred by pronouncing that the plaintiff has sufficiently proved his case by the provision of ‘notification of copyright certificate from the NCC’. It is instructive to state that the notification certificate issued by the NCC is just a regulatory scheme or policy of the commission to track copyright works in the country, and for evidenciary purposes. Such registration and issuance of notification certificate does not in anyway confer protection on such work. As it has been mentioned earlier, copyright is conferred by statute and it does not require any registration or formality as a condition for protection. Indeed, it is interesting to note that it is even written at the bottom end of the notification certificate that the certificate does not confer protection.

Therefore, the holden of the court that the plaintiff had sufficiently proved its case, in the humble opinion of this review is erroneous in law and fact, to the extent that the court entered judgement in favour of the plaintiff based on the fact that, it’s the first to register his work with the NCC and a notification certificate was issued to that effect. Whereas, the 2nd defendants work titled ‘ZAIN African Challenge’ has been in existence and broadcasted in many African countries long before the purported 1st defendant registration of his work with the NCC. Furthermore, it must be pointed out however that copyright does not seek to establish a system of monopoly as patents and designs do.  All that the law is interested in is the negative right of preventing the copying of physical material.  Thus if it can be shown that two precisely similar works were in fact produced wholly independently of each other, there can be no infringement of copyright by the author of either of the works.

Conclusion

The case under review presents another rare opportunity for the Nigerian court to make pronouncements on basic copyright principles on the eligibility criterion of whether a work should be registered before it enjoys copyright protection, which the court has failed in the humble opinion of this review based on the above analysis.

This now brings to fore once again the increased need for improved advocacy and adjudication of copyright cases in specific, and indeed, the enhancement of IP knowledge at the bench for quality adjudication and development of IP law in general.

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[1] Kunle Ola, ’Evolution and Future Trends of Copyright in Nigeria’ 2014 (2)1, Journal of Open Access to Law,
[2] Section 5(2) Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886
[3] Adebambo Adewopo, Nigerian Copyright System: Principles and Perspectives (Odade Publishers, 2012) 183
[4] Ibid 18
[5]  Babafemi F. O., ‘Intellectual Property: The Law and Practice of Copyright, Trademarks, Patents and Industrial Designs in Nigeria (1stedn., Justinian Books Limited, 2007)  20
[6] Especially in the United states, see generally sections 411 & 412 of the Copyright Act of 1976 Title 17 of United States Code (1976)
[7] Suit No: FHC/ABJ/CS/680/2008 (unreported)
[8] See generally Ss 39 and 51 of the Copyright Act 1988 Cap C28 LFN 2004
[9] Babafemi (n 5) p 10. Please note that copyright has now been extended to public performances, folklore,  traditional knowledge and computer programs (under literary works)
[10] S 1(2)
[11] See Masterpiece Investments Ltd v Worldwide Business Media &  Ors. (1977) F.H.C.R. 496. See also ICIC (Directory Publishers) v. Ekko Delta (1977) FH. CLR 346
[12] S 1(2)(b)
[13] Adewopo and Ajetunmobi, Microsoft Corporation v Franike Associates Ltd: A Critical Analysis 2013 NJIP
[14] Adewopo (n 3) p 6
[15] Adewopo & Ajetunmobi (n 13)