Discourse: The Limits of Copyright – Tony Okoroji

Anyone may be justifiably frightened by what appears to be the unlimited powers of the copyright owner. Indeed, it may appear that regardless of one’s best efforts, it is impossible not to be a copyright infringer. That is not absolutely correct.

There are restrictions to the rights of the copyright owner. These restrictions attempt to find a compromise between the desire to protect the rights of creators of intellectual property; the need to ensure that the rules are not such that make life very inconvenient for the average person; and the desire to ensure that the creations of members of the society are of benefit to the entire society.

It has been said that the rights conferred by copyright are monopoly rights. Every monopoly confers benefits on some and burdens on others. The benefits of copyright are conferred on the copyright owner and the burden on the members of the public who may wish to use the work. To strike a balance therefore, the Copyright Act sets out limitations to the rights of the copyright owner.

You may have believed that the rights conferred by copyright are enjoyed forever. No. Apart from the moral rights, which are perpetual, the rights conferred by copyright expire after a period set out by law. This period known as the term of copyright depends generally on the nature of the work in question.

With the exception of photographs, all literary, musical and artistic works enjoy copyright protection from the time of creation of the work to the end of seventy years after the end of the year in which the author dies.

The question may then be asked, when will the copyright expire in “Shakara”, “Lady”, “I no be Gentleman”, “When Trouble Sleep”, “Suffering and Smiling” and all the other great compositions of the Abami Eda, Fela Anikulapo Kuti?

Since Fela died in August 1997, the term of copyright in his songs will end seventy years after December 31, 1997. Therefore, the successors-in-title to Fela should continue to have exclusive rights to his great works up to December 31, 2067. It then follows that from January 1, 2068, Fela’s works should enter the public domain. In other words, anyone may be able to exploit those works without being held for any copyright infringement, provided the moral rights of Fela, which are perpetual, are respected.

“Identity” is arguably one of the most popular songs ever composed in Nigeria. The sudden death of the creator of the song, Oliver De Coque in 2008 does not make “Identity” the property of everyone. Oliver’s heirs or assignees should continue to enjoy exclusive rights to the song, “Identity” and his other hit songs such as “Ibiri Kam Mbiri” and “Peoples Club” until December 31, 2078. Thereafter, all of Oliver’s songs will enter the public domain.

Some of the implications of the rule discussed above are that for literary, musical or artistic works (except photographs), the copyright in all the works belonging to an author expire at the same time, regardless of when the works were made. In a case where the copyright has been transferred, assigned or sold, the expiration of the copyright depends on the death of the author and has nothing to do with the death of the eventual owner of copyright.

We have so far looked at the term of copyright in literary, musical or artistic works (other than photographs) in cases where the author of the work is a biological person. There are times when the law considers an institution, organization or corporate body as the author of a literary, musical or artistic work. Since such an author is not a biological person, it will be illogical to fix the term of copyright, in such cases, based on the time of the death of the author. In a case where an institution, government or a corporate body is the author of a literary, musical or artistic work, the copyright expires seventy years after the end of the year in which the work was first published.

Copyright in a cinematograph film or photograph, on the other hand, expires fifty years after the end of the year in which the work was first published.

While copyright in a literary, musical or artistic work other than photograph cannot expire during the lifetime of the author, it is practically possible for copyright in a cinematograph film or photograph to expire while the author is still active, especially if his productive career took off early in his life.

Copyright in Jab Adu’s movie, “Bisi, Daughter of the River”, which starred the beautiful Nigerian actress and singer, Patti Boulaye, should expire in the year 2027. If Jab Adu who passed on in 2016 had lived longer, the copyright may have lapsed during his lifetime because the movie was published in 1977 when Jab was quite active.

Similarly, copyright in some of the earlier photographs of Sunmi Smart-Cole may be running out. This is because Sunmi, the all-round artiste, embraced photography early in his life.

“The Gardener”, the sweet home video movie produced and directed by Patrick Doyle which had gentleman singer and actor, Tunde Obe as the lead character was published in 1998. Copyright in “The Gardener” should expire on December 31, 2048. Therefore, from January 1, 2049, any broadcasting station may be able to broadcast “The Gardener” as much as it wants, without infringing the copyright of Patrick Doyle or his assignee or licensee as the work would have fallen into the public domain.

I promise that we will continue with this intriguing subject, the limits of copyright, in subsequent weeks. I thank you for being part of Saturday Breakfast.

Chief Tony Okoroji is Chairman, Copyright Society of Nigeria (COSON). This piece was first published in his regular weekend colum, Saturday Breakfast with Tony Okoroji.

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