INTELLECTUAL PROPERTY UNDER LABOUR LAW: LITERARY WORK IN FOCUS

Hussain Olatomiwa Tijani

Legal Practitioner at H. O. T. Legal Practitioners, Lagos State.

LL. B (Lasu); B.L (Nigerian Law School, Kano Campus); MBA Candidate (Lasu); AICA

[email protected]

ABSTRACT

Employees in Nigeria have over the years signed employment contracts with their Employers without much regard towards studying the content of the employment contract or engage legal practitioners to vet contract.

This paper sets to explore the consequences of an Employee signing an employment contract, that has a “copyright assignment case”, and the legal implication of the clause not being stated in the employment contract, or company handbook or policies.

The Paper shall look at the provisions of the Copyright Act, and judicial decisions in Nigeria and abroad, as it relates to the topic.

Keywords: Literary Work, Copyright, Intellectual Property.

INTRODUCTION

Literary work is an offshoot of Copyright, subsumed in Intellectual Property. Intellectual property is an intangible asset, being a thing that is capable of being owned or controlled to produce value[i].

The Accounting Standards Board United Kingdom defines an asset as “rights or other access to future economic benefits controlled by an entity as a result of past transaction”[ii]. The term “future economic benefit” refers to the economic return expected from the disposal or use of the asset whilst control means the ability to get future benefits or to restrict other access to the future benefit.

INTELLECTUAL PROPERTY

Intellectual Property rights are like any other property rights which allows the creator or owner of a patent, trademark, or copyright to benefit from his or her own work or investment[iii]. These rights are outlined in Article 27 of the Universal Declaration of Human rights which set forth the right to benefit from the protection of moral and material interest resulting from authorship of any scientific, literary or artistic production.

The importance of intellectual property was first recognized at the Paris Convention for the Protection of Industrial property in 1883 and the Berne convention for the protection of literary and artistic works in 1886[iv]. Both treaties are administered by the World Intellectual Property Organization (W.I.P.O).

Intellectual Property in Nigeria, is encapsulated in Patents; Trademarks; Design Rights and Copyright. Focus in this paper shall be on Literary Works, which is an offshoot of Copyright and its relation to the work environment between employers and employees.

The historical development of Copyright in Nigeria can be traced to the evolution of copyright in England. The international copyright Act of 1886 made the copyright Act of 1911 applicable to Nigeria being a statute of general application. The copyright Act became Nigeria’s first copyright legislation and it remained in force until 1970 when it was repealed by Nigeria copyright Act of 1970 which was enacted on 24th December 1970. In 1988, the Copyright Act was amended to address the defects in the copyright Act of 1970, and established the Nigeria Copyright Commission and the establishment of a governing board for the Commission.

COPYRIGHT 

Copyright is defined as “the right of literary property as recognized and sanctioned by positive law[v]. An intangible, incorporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested for a “limited period” with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them” in the Black Law Dictionary 5th Edition by St Paul Minn at page 304.

Copyright is a set of exclusive right granted to the author or creator of an original work including the right to copy, distribute and adapt the work. Copyright does not protect ideas only their expression. Copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time after which the work is said to enter the public domain.  

The scope of copyright covers eligible works, simply called “works”. It is not all works that enjoys statutory protection. The copyright Act section 1 defines works eligible for copyright to include the following:

(a)           Literary works

(b)          Musical works

(c)           Artistic works

(d)          Cinematography

(e)           Sound recording and

(f)           Broadcast

LITERARY WORKS

Section 51 of the Copyright Act, provides that: Literary works includes irrespective of literary quality, any of the following works or works similar thereto:

(i)   novels, stories and poetical works;

(ii) plays, stage directions, film scenarios, broadcasting scripts;

(iii)           Choreographic works;

(iv)computer program;

(v)  text-books, treaties, histories, biographies;

(vi)encyclopedias, dictionaries and directories;

(vii)          lectures, addresses and sermons;

(viii)        law reports excluding decisions of court; and 

(ix)           written tables or compilations.

In line with section 1(2) of the Act, a literary, musical or artistic work shall not be eligible for copyright unless|:

a)    sufficient effort has been expended on making the work to give to give it an original character.

b)   the work has been fixed in any definite medium of expression now known or later to be developed from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.

Section 1(4) of the Act, it provides that a work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involves an infringement of copyright in some other work.

OWNERSHIP OF LITERARY WORKS

Under the Nigeria law, ownership of copyright is automatic and if someone is not a citizen of Nigeria, you cannot lay claim to copyright ownership unless the work was first published in Nigeria.

Black's Law Dictionary 9th Edition Bryan A Garner page 1215 defines ownership rights thus: - 

" the right to possess a thing, regardless of any actual or constructive control. Ownership rights are general, permanent and heritable". 

At page 388 of the same Black's Law Dictionary Copyright owner is defined to be thus: -  

"One who holds an exclusive right or rights to copyrighted material". 

Section 2 of the Act provides that copyright shall be conferred by this section on every work eligible for copyright of which the author or in the case of a joint work of authorship, any of the authors is at the time when the work is made, a qualified person, that is to say-

(a)           An individual who is a citizen or is domiciled in Nigeria or

(b)          A body corporate incorporated by or under the laws of Nigeria. In the case of anonymous or pseudonymous literary, musical or artistic works, the copyright therein shall subsist until the end of the expiration of seventy years from the end of the year in which the work was first published provided that when the author becomes known, the terms of the copyright shall be calculated in accordance with paragraph 1 of the first schedule to this Act.

In case of a work of joint authorship, a reference in the first schedule to this Act to the death of the author shall be taken to refer to the author who dies last, whether or not he is a qualified person within subsection (1) of this section.

Section 2 (1) of the Act confers copyright by virtue of nationality or domicile whilst 3(1) (a)and b of the Act confers copyright by reference to country of origin.

Section 51 of the Act defines “author” to mean in the case of “literary, artistic or musical works, means the creator of the work”.

TRANSMISSION OF OWNERSHIP OF LITERARY WORKS

By law the owner of a literary work can assign and grant exclusive licensing to all or some of his rights over his literary works, which shall be valid only when the assignment or transmission is documented in a written form.

Section 11 of the Act, it provides that copyright works are transmissible by assignment by testamentary disposition or by operation of law as movable properties. However, upon the death of the owner, it devolves upon his personal representatives for the benefit of the person to whom he has bequeathed it and when the owner dies intestate, then it will be for the benefit of his next of kin.

The definition of assignment of copyright and exclusive licence is well stated in Halsbury's Laws of England, 4th Edition, 2006 re-issue Lexis/Nexis Butterworth on page 122, paragraph 166 thus: - 

"A legal assignment of Copyright or any part of it, vests the rights assigned the assignee so that he becomes the owner and may take proceedings against persons who infringe or who have infringed it". 

In paragraph 176 of Halsbury's Laws of England (Supra) an Exclusive License was defined as:

“An Exclusive Licence means a licence in writing signed by or on behalf of the Copyright owner, authorizing the license to the exclusion of all other persons including the person granting the license to exercise a right which would otherwise be exercisable exclusively by the copyright owner. 

The licensee under an exclusive Licence has the same rights against a successor in title who is bound by the Licence as he has against the person granting the Licence. An Exclusive licencee may bring proceedings for infringement in the same way as an assignee.”

NON-TRANSMISSION OF LITERARY WORKS

By virtue of Section 10(2) b of the Act, it provides that copyright in the work shall belong in the first instance to the author unless otherwise stipulated in writing under the contract of employment. See the case of Byrne v Statist Co (1914)1.KB 622, where a journalist who undertook  a piece of translation and editing from the  Portuguese as a special job outside his normal hours of work was held entitled to the copyright even though the piece of work was for advertisement in his employers newspaper.

By virtue of Section 10(2) of the Act, where the work has been commissioned by a person who is not the author’s employer under a contract of service or apprenticeship, it provides that the copyright in the work shall belong in the first instance to the author unless otherwise stipulated in writing under the contract.

DURATION OF RIGHTS OVER LITERARY WORKS

The First schedule of the Copyright Act provides that in respect of literary, musical or artistic work other than photographs, copyright in the work will expire seventy years after the end of the year in which the author dies. For government or body corporate, copyright in literary, musical or artistic works will expire seventy years after the end of the year in which the work was first published.

ENFORCEMENT OF COPYRIGHT 

Enforcement of copyright can be by way of civil and criminal proceedings.

REMEDIES FOR INFRINGEMENT

(a)           Damages- either special, general , exemplary, nominal and General damages.

(b)          General damages  flows naturally from the defendant’s conduct and its quantum need not be pleaded or proved as it is presumed by law.

(c)           Exemplary or punitive damages- This is not intended to compensate the claimant but to punish the defendant and to deter him from similar behaviour in the future.

(d)          Nominal damages-awarded where the Claimant establishes a violation of his rights by the defendant but is unable to show that he suffered any actual damages as a result of the defendants wrongdoing. It is also awarded where damages has been proved but no evidence has been given as to its assessment of compensatory damages

(a)           Injunction

(b)          Anton pillar order-An order which can be given Ex-parte for inspection, photographing and delivery up of infringing materials in the possession or control of an infringer.

(c)           Account for profit-Section 16(3) of the Act provides that where in an action for infringement of copyright is proved, the plaintiff shall be entitled to an account of profit in respect of the infringement. 

(d)          Right of conversion-This is one of the rights available to a party whose rights have been infringed. This is recognized by virtue of section 18 of the Act. It provides that all infringing copies of any work in which copyright subsist shall be deemed to be property of the owner or assignee or exclusive licensee of the copyright.

CONCLUSION

From the above expositions, it would be seen that both the Employee and Employer stand to lose and gain from the inclusion or non-inclusion of the Copyright assignment clause.

[i] https://courses.lumenlearning.com/boundless-accounting/chapter/introduction-to-long-lived-assets/

[ii] Julian Lyon, 2010. "Accounting for leases: telling it how it is," Journal of Property Investment & Finance, Emerald Group Publishing, vol. 28(5), pages 328-332, August.

[iii] https://www.manishmb.in/intellectualproperty.html

[iv] https://www.wto.org/english/tratop_e/tpr_e/s384_e.pdf

[v] https://www.acep.org/how-we-serve/sections/copyright-basics