Part 2 – What’s Changed in Nigeria’s Copyright Law? - Comparative Analysis of the “New” Copyright Act, 2022 (“CA22”)

1.0 Who’s the First Owner of Copyright in a Creative Work?

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1.1 The sections to compare on this issue are section 10 of the old law and section 28 CA22. Section 28(1) CA22 succinctly embodies the content of section 10(1,2) of the old law. Bottom line is an author (as in the human that created the work) owns copyright, unless parties sign an agreement saying otherwise. This is so whether the author is an employee or not – the roundabout and even confusing way the old law tried to make a distinction without a real difference in section 10(2) is ditched.

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1.2 A significant change is a distinction between private sector and public sector engagement of a creator. Section 28(2) of CA22 says that when a person creates content for a government department or agency or prescribed inter-governmental organization, the initial copyright belongs to the department/agency/organization. It doesn’t matter whether the creator was an employee (contract of service) or an independent contractor (contract for services). To deviate from this rule, there has to be an agreement saying otherwise. Creators, take note. ??

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1.3 The old provision regarding mainstream media content is dropped. That naturally falls under the general rule of first ownership of copyright. So, if you own any mainstream media or a company in the writing or other creative business, and want to retain copyright in works authored by your staff/contributors – make sure there is a contract stating so expressly and on what terms. But to attract the best talent, you may want to avoid a one-size-fits-all approach – some talents would want to retain republishing rights and proper attribution for certain creative outputs.

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2.0 Interesting Features

2.1 A dimension I consider to be interesting in section 28 CA22 involves engaging someone to take a photograph/painting/drawing or make a movie for private use (i.e, non-commercial purposes). Section 28(3)(b) empowers the person who engaged/hired the photographer or artist to restrain the publication, exhibition, etc of copies of the work to the public. The section does not streamline who the hirer can restrain. It goes without saying that the hirer can restrain even the copyright owner/photographer/artist from distribution. Remember that the work was for private use. This makes sense. That’s why generally, if you hire a photographer to take your pics for private use, the photographer would be erring by publishing your pics without your consent.

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2.2 And for individual or corporate brands on social media using other people’s pictures to boost their posts, be careful. No point putting your brand in a position where someone in a photograph would have a valid claim against you. And if anyone uses your picture without your prior consent, you know what time it is. ???

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2.3 There’s a section you’ve got to read side by side with section 28(1) on an author first owning copyright. It’s section 108(1) which defines “author” in the context of different types of works.

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2.4 As far as audiovisual works (formerly “cinematograph films” in the old law) are concerned, “author” means “the person by whom arrangements for the making of the audiovisual work were made, unless the parties . . . provide otherwise by contract between themselves”. I quoted that verbatim. This definition is the same as it was in the repealed law. The definition protects a movie producer, for example. This also applies to sound recordings – but does not include sound track. (see definition of “sound recording” in section 108).

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2.5 Query – what does “arrangement” for the making of a sound recording mean within the context of voice actors or those who record audiobooks? Don’t look at me – I’m asking. ?? I guess context will be a huge determinant.

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2.6 Section 29 is another good one on copyright in collective works. An example of a collective work is a journal or book containing writeups by several contributors. The general rule is that copyright vests in the person on whose initiative the collective work was created. So, when your professional association, for example, calls for submission of articles in its journal, know that copyright in the journal vests in the trustees of the association. But you have the right to re-publish your own contribution on any other platform. Section 29(b) clarifies that an individual contributor can exploit their own article. Of course, parties can agree otherwise. So before submitting your creative work for a collective publication – do yourself the favor of confirming the terms of publication by that body calling for submission of articles.

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2.7 Unlike section 11 of the old law, section 30 of CA22 which deals with Assignment and License makes additional provisions in subsections 7 to 9. These distinguish between ownership of a material in which a work is embodied and ownership of copyright in the work itself. A practical example where this manifests in real life is the music business. Physical ownership of Masters does not necessarily mean ownership of copyright in the individual contributions (e.g, beats, songs, etc) in the music embodied in the Masters.

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2.8 I particularly like the content of section 20(3) – Any term/content of a contract that tries to restrict or prevent the doing of something that’s permitted in the CA22 is void. For those who like including oppressive terms in contracts with creators – put that in your pipe and smoke it.?? An example of a contract term that would be void is assignment of moral rights. Section 14(3) expressly states that the moral right of attribution as author of a work shall not be transmissible when the author is alive. I continue to cringe at publications of companies, firms, etc, that cite the company or firm but don't mention the names of the individuals who contributed to the work.

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2.9 Part 8 should interest performers including choreographers/dancers, and I’d add voice actors who read audiobooks too. I add them because section 63(2)(c) says “performance includes a reading or recitation of literary act or any or any similar presentation which is a live performance given by one or more individuals.” Now, I’ll highlight section 66. It protects a performer’s moral rights. That is, the right to be identified as the performer in connection with any use of the recorded performance. And the right to prevent any modification of their performance or recording of the performance. These rights cannot be transferred when the performer is alive. Section 66(2) of the CA22 does not recognize assignment of these moral rights. I repeat. A performer's moral rights cannot be assigned.

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2.10 Also interesting is the shift in the CA22’s emphasis on fixation (i.e, recording, etc.) of a performance. Unlike section 27 of the repealed law which simply says duration of copyright protection in this category of creative work is 50 years from the end of the year when the performance first happened – CA22 says duration of protection is 50 years from the end of the year when the performance was first FIXED.

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In part 3 of this series, we’ll look at what’s new with copyright regulation in Nigeria. Till next time, be well.??