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Nana Nwachukwu: Before you click that publish button – what is protected by copyright and what isn’t

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Nana Nwachukwu: Before you click that publish button – what is protected by copyright and what isn’t

by Nana Nwachukwu

I once got mail from a friend saying ‘my article has been stolen from my blog and is being used by another blog and I did not authorize that’

A lot of blogs, writers and websites do this. They take an entire content off and then reproduce it without asking questions or seeking permission. This is quite sad but today, I am not here to look at the emotions rather let us examine the legal angle to article and news reports taken off a site and reproduced on another without linkbacks.

Why did I mention linkbacks? A linkback is the act of putting a weblink that goes back to the original site where the article came from in the first place. For example, if you are using Tumblr, there is something called ‘reblogging’, that is the site’s way of preventing certain copyright issues and also a way of making you give your automatic permission once you use the site and enable that function.

Now back to the main issue. Opinion articles, letters and news reports whether posted in the traditional media or posted online are covered by copyright laws under literary works. I would provide you with three definitions for a clearer understanding of what the law protects.

U.S. Copyright Law;

“S. 101 ’Literary works’ are works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied”

Nigerian Copyright Act[1]

“S. 50 (1) literary work” includes, irrespective of literary quality, any of the following works or works similar thereto‐

(a) novels, stories and poetical works;

(b) plays, stage directions, film scenarios and broadcasting scripts;

(c) choreographic works;

(d) computer programmes;

(e) text‐books, treatises, histories, biographies, essays and articles;

(f) encyclopaedias, dictionaries, directories and anthologies;

(g) letters, reports and memoranda;

(h) lectures, addresses and sermons;

(i) law reports, excluding decisions of courts;

(j) written tables or compilations” (emphasis is mine)

The Berne Convention 1971[2]

“Article 2 (1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.”

Let me present some scenarios;

  1. President Goodluck Jonathan makes an official speech as part of his official functions. The text of that speech is not protected by copyright. Every media house and individual is free to reproduce, copy, sell and do whatsoever to that speech. Why? This is because official texts are regarded as works in the public domain and cannot be protected despite the amount of intellectual work that has been put into it or not.
  2. Let’s say a News media runs an editorial/commentary on the speech, that editorial and commentary is protected by Copyright. This means, it would be illegal everywhere in the world for such editorial and commentaries to be run by another person word for word without express permission from the owner of the Copyright who in this case happens to be the media house.
  3. What if this editorial/commentary has parts of it copied by another media house but not the entire work? This means that there are factors that would be considered before considering that an infringement. Such factors would include the following;
  4. Is the Media House a competitor? Surely any media house is a competitor to another even if they are owned by the same group. This means that they are in the same/similar business.
  5. Was the copying substantial? The Courts have decided in different jurisdictions on what substantial copying means in such scenarios. It could be a line or a large chunk of the work. Why do I say a line? If the part of the work copied goes to the heart of the work that is to say what gives it the ‘edgy feel’ then it could be said to be substantial and as such an infringement.
  6. Was the part copied for purposes of criticisms or parody? Now if I take some lines out of your editorial to show how silly or not I think it is, I have not infringed on your copyright. However, parody still has fuzzy lines and each case is unique and is determined by the facts of the matter.
  7. The other scenario would be if an incident happens and there is a news story on it. These are factual events. Style of reporting these events differ and as such two persons or more would not have the exact words and style at the same time. Finding infringements in news reports are as hard as they are easy. Let me explain;
    1. News Blog A carries the news and News blog B copies exactly what Blog A published and simply adds underneath, ‘Source: Blog A’. This is an infringement of the copyright that lies in that news.

You may ask how does this infringe copyright seeing that copyright does not protect facts?  This is why; Blog A made a news story out of facts and what you copied was not just the facts but their news story. For you to do a copy and paste job, you need permission from Blog A.

  1. Now let’s say that you make a news story out of Blog A’s facts and it may look like this “According to Blog A, an accident happened on so, so and so place, however we checked and this was the report we got….” or you could state the headlines and make commentaries based on the report. This would not be an infringement.
  2. This applies despite the manner of news. It could be celebrity gossip news, Government looting, Obasanjo’s letter or just my birthday party gist.
  3. Another scenario is if I have published an article on my blog or submitted an article to another blog and it is being used by a blog I have no idea about and neither does the publishers. This is a copyright infringement. The issue of permission online is a little bit dicey but the rule is always, ‘when in doubt, ask for permission’. The blog posting it could have links that lead back to the original publisher and if the publisher is only seeking page views, this may go down well and palliate the case if it ever comes up in Court, however, if the posting causes a negative effect by directing traffic away from the original publishers, this would mean that the injury would be quite easy to prove.

Why do I mention injury? For you to prove an infringement which the palliative would go beyond ‘removing/taking down the article’, you would have to prove that the act was financially injurious to you or your reputation in court to get damages. Not all infringements get paid damages.

I have refrained from using Linda Ikeji’s blog in particular as most blogs commit these blunders.

Now, there is this thing about jurisdiction; where you can sue, who you can sue and how far the Nigerian Courts will take your claims of online infringements. It is true that Section  258 (1)(d) has defined evidence obtained from a ‘computer’ but Section 41, 84 and 86 of the same Act does not do justice for user-generated content per se. Time and space will not permit me the explanations, perhaps in another post.

– Follow this writer on Twitter: @purehaire



[1] Nigerian Copyright Act (as amended) Cap C28, LFN, 2004

[2] The Berne Convention is an international copyright treaty that protects literary and artistic works. Nigeria is a party to this convention. This means that works covered by it that has been infringed on can get legal action in any of the countries covered by the convention.

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