by Nana Nwachukwu
Section 1 of the Copyright Act, Cap C28 LFN 2004 lists
“(a) literary works;
(b) musical works;
(c) artistic works;
(d) cinematograph films;
(e) sound recordings; and
as protected by the Act. It goes further in Section 2 to prescribe the requirement for eligibility for literary, musical and artistic works.
This means that the Act would only protect an idea only when it is original, expressed in some material form and for artistic works, intended for industrial use. It has been clearly stated in University of London Press Ltd. v. University Tutorial Press Ltdthat originality in literary works means the expression of the idea in a material form and not the thought itself.
Section 5 of the Act goes on to explain the general nature of Copyright. Note that Copyright must not be registered for one to lay claim to this right rather, it must be reproduced in some material form, published, performed in public, make a recording (audio or visual), distribute for commercial purposes, broadcast etc. There are different modes listed for establishing a copyright and knowing a copyrightable work
Who is the author?
The case of Walter v Lane clearly explains this. An author in my understanding is who actually expresses the idea in a material form. For example, let us assume that you tell me a story of what happened to you and then I write an article based on the facts you provided. The article earns me money. You cannot lay claim to ownership or authorship of the article.
Copyright does not prevent the use and spread of factual events but will rather protect a compilation of these facts as databases or protect the manner that these facts were expressed. Like Pila rightly stated, Copyright is a right of exclusion and not just protection. No one is excluded from using facts. Your story to me does not preclude me from using the same facts in a book.
How does Copyright function with the Social Media?
Users of the Social Media will notice that a lot of posts in form of texts and pictures are made on blogs, twitter, Facebook, pininterest, tumblr, instagram etc. Are these works protected by the Copyright Act? If they are who owns the right to the posts? What does infringement entail on the Social media?
It has been clearly stated that the first requirement for copyright is originality. Originality does not mean an entirely novel idea rather it means a differently thought out process or an improvement on an existing thought.
The second requirement is that it must be expressed in a material form. This means that if I have an opinion which is strictly in my own words and my thoughts, and type it, does the mere fact that it has been typed mean that it has been expressed in material form? This is dicey because the Act says ‘fixed in a definite medium expression’. If I have saved the work, then it has Copyright eligibility.
The next step will be to make such writing public. The Social media has provided a forum for ideas to flow and be published with minimal effort. It is a fixed medium from which the ideas expressed on it can be shared (reproduced) and archived. Same thing goes for musical performance. Now, if you have done a stage performance, it will not be copyrighted until it has been recorded in a video.
Now the issue is this, the video you made and put on YouTube, is it protected by copyright? The article you wrote on a blog, is it protected by copyright? Oh yes they are however, your right online depends on two things. One is the terms of service that you have published it and the doctrine of fair use.
This brings about the need to read the fine print of the Social Media. How many people have clicked on those pop-up agreements and actually read them before clicking on ‘Agree’ or ‘Accept’? How many have read and clicked ‘Decline’ or ‘Disagree’? This is a matter for another day.
However, if you want to retain your rights to a post, it will be proper to read what you are going into. Twitter and Facebook for example have terms of service that give you maximum control in that you can control your privacy settings however, they put you on alert that your work is subject to fair use and unlimited sharing.
Fair use is about using a copyrighted work without permission. Where a case of fair use is alleged as a defence to an infringement, the determinant factors would be;
- Purpose of use : if the material lifted was acknowledged by the person making use of it and if the material was lifted only for news reporting, research or teaching purposes (it cannot be lifted for commercial use)
- Nature of the copyrighted work: some works are exempt from fair use such as consumable products as workbooks and standardized tests e.g GMAT test
- The portion that was used: This refers to size and content. Was the major idea behind the published work used? Was the entire work used?
- Effect on the value of the work: Copyright not only protects the right to ownership, it prevents the use of a work in such a manner that it will devalue the content of the work or purpose of the work.
This means that our original ideas either tweeted; posted as a Facebook status message or blogged about is copyrightable. The internet is novel and fascinating. A lot of people have argued against the regulation of the internet generally but our knowledge has expanded and we have realized that profit-making ideas can be explained in 140 alphanumeric characters. The limitation of expression given by the social media has sharpened the manner in which human beings think therefore creating faster thinking and mini-blogging.
The problem becomes how to control use and infringement. Asides using our privacy settings, we have recourse to the law though our law is not tidy and has a lot of lacuna that makes it clearly unfavourable to the e-author. The Copyrights, Designs and Patents Act of the UK and the Digital Millennium Act are laws that Nigeria should model its Copyright law after.
I have seen cases online where people use quotes as if it is theirs and also lifting blog articles without acknowledging the source. Newsflash, you are committing an infringement. Do you know why? You are quoting verbatim, you are not acknowledging the owner and just in case you do not know, your blog is a commercial site!
Nigeria has no law guiding internet behaviour. Oh yes, I yelled at Abati when he made the suggestion. Yes, because all they bothered about was the political aspect. Let us protect our internet commerce.
I am a disciple of the need to protect rights so what do you say, the next time someone infringes copyright on your blog, shall we give them a run for their money?
Nana Nwachukwu (@purehaire)
  2 Ch 601 Per Peterson J,.
  AC 539
Victoria Park Racing & Recreation Grounds Company Ltd v Taylor  HCA 45
 Justine Pila, ‘An Intentional View of the Copyright Work’ (2008) 71 MLR <www.ssrn.com> accessed 8th September, 2012
 Feist Publications v. Rural Telephone Service (1991) FN28: 499 U.S. 340, 18 USPQ2d 1275