Copyright - Legalnaija

How Creatives Can Protect their Intellectual Property Rights | Adedunmade Onibokun

by Legalnaija | Feb 2, 2018 | Uncategorized

As an Artist,
Inventor, Photographer or a member of the creative industry, it takes a lot of
effort, skill and hard work to do what you do and it is a reasonable expectation
to be paid for your work. However, once work is made available to the public,
the chances of someone claiming the work as their own or reproducing it without
giving proper credit is extremely high in today’s technologically advanced and
share-friendly culture. Nothing is more infuriating than discovering that your
creative ability is being exploited by someone who has neither the permission
nor the right to do so.

Adequately
curbing piracy in Nigeria still requires a lot of effort despite the spirited actions
of several government agencies. Truth is, there really is no actual patent or
copyright police, roaming the streets on behalf of Creatives and looking to
investigate piracy, except for the few police raids on centers known for
selling or making pirated works. Most Creatives
therefore usually enforce their rights, themselves though our non – evolving laws
and the inadequacies of judicial enforcement are not encouraging.

To protect your
Intellectual Property Rights (IPRs), the first thing to note is registration with
the relevant authority. IPRs are governed by the Trademarks Act, the Patents
and Designs Act, the Merchandise Marks Act and the Copyright Act, in
addition to the principles of common law.

The Trademarks Act

A trademark
consists of any word, symbol, or device used to distinguish the company’s goods
or services. A trademark is a recognizable sign, design, or expression which identifies
products or services of a particular source from those of others. The Act
provides that no
person shall be entitled to institute any proceeding to prevent, or to recover
damages for, the infringement of a trade mark except it is registered.

The Patents and Designs Act

The Act
provides that an invention is patentable if it is new, results from inventive
activity and is capable of industrial application; or if it constitutes an
improvement upon a patented invention. Patents protect ideas that are novel,
useful, and non-obvious. When a patent expires which is usually about 20 years,
the item or process enters the public domain. Until that time, a patent holder
can prevent unauthorized use, manufacture, or sale of the invention.

The Merchandise Marks Act

The Act relates
to fraudulent marks on merchandise and provides in Section 3, that anyone who
forges a trademark or assigns on goods a false trademark with intent to deceive
or has in his possession forged goods for sale shall be liable- on conviction before a High Court to imprisonment for a term of two years,
or to a fine, or to both and on summary conviction before a magistrate court to
imprisonment for a term of six months or to a fine.

The Copyright Act

Copyright law
protects the creative expression of ideas. Ideas themselves may be protected by
patents, not copyrighted. Any creative work that has been fixed in a tangible
medium of expression, such as paper, software, or film, and that can be
reproduced or otherwise communicated exactly is automatically protected by
copyright law. Examples include art, songs, movies and writings. The digital
world is boundless and to protect a copyright, an artist may have to use
digital watermarks on their creations and put up a copyright notice on the web
page where your work is displayed.

How to enforce IPRs

Having
registered your intellectual property, whether trademarks, copyrights or
patents; enforcing your legal rights against any person who may have infringed
on them is the second step to protecting your IPRs. IPRs are protected through
the registration of rights with the relevant registries and regulatory bodies
established by the Nigerian Government, such as the Trademarks, Patent and
Designs Registry. the Nigerian Copyright Commission (NCC), as well as other
related offices, such as the National Office for Technology Acquisition and
Promotion (NOTAP), the Standard Organization of Nigeria, and the National
Agency for Food and Drug Administration and Control (NAFDAC). All these offices
run their independent registries and often interface in the discharge of their
mandate.

·
National Agency For
Food And Drug Administration And Control (NAFDAC)

NAFDAC is
empowered to regulate and control the importation, exportation, manufacture,
advertisement, distribution, sale and use of food, drugs, cosmetics, medical
devices, packaged water and chemicals, generally known as regulated products. Under
the provisions of various regulations and guidelines on registration, the
submission of evidence of ownership of trademark is a condition precedent for
the registration of branded regulated products. Where an infringed trademark is
used in respect of a product that is within the purview of NAFDAC powers, a
petition can be presented to NAFDAC in that respect.

·
The Nigeria Copyright Commission (NCC)

The role of the
NCC is limited to works which are eligible for copyright protection under the
Act. It is the agency responsible for the enforcement of the Copyright Law in
Nigeria, carrying out raids and seizing items that are pirated, prosecuting
perpetrators and convicting them with copyright infringement. If a copyright is
infringed, a petition can be made to the NCC on registered copyrights.

·
Nigerian Customs Service

The new fiscal
policy of Nigeria, as contained in the Common External Tariff for 2008–2012
Schedule 4, provides the list of goods which are absolutely prohibited from
being imported. Specifically, Item 3 prohibits the importation of “all
counterfeited/pirated materials or articles including base or counterfeit coin
of any country.”

·
The Nigerian Police

Section 4 of
the Police Act provides for the general duties of the police and one of such
duties is the prevention
and detection of crime and the apprehension of offenders. As such crimes
bothering on criminal infringement of IPRs can be reported to the Police.

·
The Nigerian Intellectual Property Office (IPO)

The IPO is an
arm of the Commercial Law Department under the Ministry of Trade and
Investment, and is also known as the Nigerian Trademarks, Patent and Designs
Registry. Applications challenging the grant of Trademarks either before or
after such registration can be made to the IPO.

·
The Federal High Court

The Federal High
Court is the court with jurisdiction to enforce IPRs and civil proceedings for
infringements can be instituted at the Federal High Court against any offender.
The Federal High court is also vested with the authority to hear criminal
matters bothering on the infringement of IPRs.

It is
important that in Nigeria, there are several pieces of work that do not fall
under the protection of IPRs in Nigeria, including the style designs of fashion
designers, therefore a designer such as Ugo
Monye who made the popular native attire Ebuka Obi-Uchendu wore
cannot claim damages or infringement against any other designer who recreates
the outfit.

There
continues to be a call for a reform of Nigeria’s IP laws as most of the current
legislations are old and do not conform with today’s reality.

If you will like to read further on how to
legally protect your business or startup, here are 10
tips.

Adedunmade Onibokun

www.adedunmadeonibokun.com

info@adedunmadeonibokun.com

Adetola Adeleye. (2016). INTELLECTUAL
PROPERTY RIGHTS ENFORCEMENT IN NIGERIA: REGULATORY AGENCIES TO THE RESCUE.Available:
http://pennjil.com/intellectual-property-rights-enforcement-in-nigeria-regulatory-agencies-to-the-rescue/.
Last accessed 2nd Feb, 2018 .

Ray
Dickinson. (2017). What Can You Protect? Types of Intellectual
Property. Available: http://edwardlowe.org/what-can-you-protect-types-of-intellectual-property/.
Last accessed 2nd Feb, 2018.

Photo Credit – Pic 1 – www.guardianng.com ; Pic 2 – www.lindaikejisblog.com

NOTE: Please
note that this article is strictly for educational purposes and not for
commercial purposes. If you have any comments or remarks you may contact the
author.

Marvin Gaye v. Robin Thicke: How Blurred Are The Lines In This Copyright Suit?

by Legalnaija | Nov 23, 2017 | Uncategorized

On 6th October 2017, Robin
Thicke and Pharrell Williams filed an appeal at the United States Court of
Appeals for the Ninth Circuit against the decision of the District Court for
the Central District of California (District Court) which decided that they had
infringed Marvin Gaye’s copyright in the song “Blurred Lines”.

As the legal fireworks in
the appeal commences, we have decided to examine the issues surrounding this
copyright infringement suit and explain its importance to the intellectual
property community.

One of the most successful
songs in modern history

The song “Blurred Lines”
was released in 2013 by Robin Thicke and featured fellow musicians, Pharrell
Williams and Clifford Harris (also known as T.I). It was a huge hit when it was
released, ruling the airwaves for over a year.

In the United States (US),
the song debuted at No. 94 on the Billboard Hot 100 charts. However, by June
12, 2013, “Blurred Lines” was No. 1 on the charts and had sold over 1 million
copies in the US[1].

“Blurred Lines” later
peaked at No. 1 in 25 countries, including the United Kingdom (UK) and the US.
The song was so successful that it was certified quadruple platinum in
Australia and triple platinum in New Zealand[2].

In Canada, the song was
the No. 1 song for 13 consecutive weeks. It became the longest-running No. 1
single of 2013 and was Canada’s best-selling song of 2013[3]. In the US, it sold over 5 million copies in just 22
weeks and 6 million in 29 weeks thereby becoming the fastest selling song in
digital history[4].

By April 2014, the Blurred
Lines” single had reached the 7 million mark in sales[5] and by April 2015, it had sold 7,380,000 copies in
the US, making it the eighth all-time best-selling digital single[6]. According to the International
Federation of the Phonographic Industry (IFPI), the song had sold 14.8 million
copies by the end of 2013, becoming the best selling song of the year worldwide[7] and one of the best selling
songs of all times[8].

It broke the record for
the largest radio audience in history[9] and
is currently the seventh best-selling digital single of all time. It was the
second best-selling song of 2013 in the US and the best-selling song of 2013 in
the UK[10]. Subsequently, it was
nominated for two Grammys at the 56th
Annual Grammy Awards in the Record of the Year and Best Pop Duo/Group Performance categories.[11]

Earnings from the song

It is estimated that a
total of $16,675,690 was realized in profits for “Blurred Lines.”
Subsequently, $5,658,214 went to Robin Thicke, $5,153,457 was made by Pharrell
Williams and $704,774 went to T.I[12].
The record companies (Interscope, UMG Distribution and Star Trak Entertainment)
took the rest of the profits with an executive at Universal Music Group stating
that overhead costs on the creation of “Blurred Lines” amounted to
$6,900,000[13].

Authorship of the song

In a May 6 2013 interview
with GQ Magazine, Robin Thicke claimed that he wrote the song along with
Pharrell Williams. He stated that he was in the studio with Pharrell Williams
and he informed Pharrell Williams that
Marvin Gaye’s “Got to Give It Up” was one of his favourite songs.. His
statement inspired Pharrell Williams who started playing something with a
similar tune as the Marvin Gaye song and both artists supposedly wrote “Blurred
Lines” in about half an hour and subsequently recorded it.[14]

Clearly, Robin Thicke had
a hit on his hands. However, unknown to him, the storms were beginning to
gather as the Estate of the late Marvin Gaye had heard the “Blurred Lines” song
and would soon commence an action that in my opinion, could affect our perception
of copyright protection.

The legendary Marvin Gaye
is reputed to be one of the greatest soul singers.. He penned several songs
such as “Sexual Healing” and “What’s Going On”. He wrote a smash hit titled
“Got To Give It Up” in 1977. It was released under Motown Records (now a
subdivision of Universal Records). Marvin Gaye died in 1984 leaving the
copyright to his collection of songs to his children.

After reading several
interviews which Robin Thicke gave to the press, the Mavin Gaye family started
to insist that Robin Thicke had infringed on Marvin Gaye’s copyright by
sampling some portions of “Got to Give it Up”. Robin Thicke did not take too
kindly to these accusations and he proceeded to file a suit against the Estate
of Marvin Gaye at the District Court in August 2013. He was not seeking
monetary reliefs but sought a declaration from the court to determine if the
composers of “Blurred Lines” can be held liable for copyright infringement on
the basis that they were influenced by Marvin Gaye’s song, but did not actually
sample such prior works or literally copy any of Marvin Gaye’s music or lyrics.
Put differently, could they be deemed liable for copyright infringement if all
they did was evoke an era and the “feel” of Marvin Gaye’s music?

Marvin Gaye’s family took
the bait and counter-sued in April 2014, claiming that they were entitled to
damages as “Blurred Lines” infringed on Marvin Gaye’s copyright. In
addition to Robin Thicke, the producer and co-writer Pharrell Williams, guest
rapper T.I. and Universal Records were also joined in the suit.

In a shocking twist during
the trial, Robin Thicke informed the jury that he did not compose “Blurred
Lines” as he claimed he was drunk and high on alcohol and vicodine when he
recorded the song. He also claimed that he was inebriated when he gave the GQ
Magazine interview and other interviews where he claimed authorship of the
song. He also informed the court that he did not consider himself an honest
person[15].

On his part, Pharrell
Williams asserted that he wrote the song and that although he drew influences
from Marvin Gaye, he intended to replicate the “vibe feeling” of the genre. He
stated that there was no intention to rip off Marvin Gaye’s song.

In the second part of this
series, we will consider the arguments that were raised by both parties to the
lawsuit and examine the decision reached by the jury at the close of the
arguments. This will be considered in line with the position of the copyright
laws to determine if the eventual decision reached by the jury was proper in
law.

Davidson
Oturu MCIArb

Partner, Intellectual property and brand protection at
ǼLEX/Corporate & Commercial Lawyer

Source: Linkedin

References

[1]Gary Trust, ‘Robin Thicke’s ‘Blurred
Lines’ Hits No. 1 on Hot 100’ (Billboard Articles 6 December 2013)
<http://www.billboard.com/articles/news/1566519/robin-thickes-blurred-lines-hits-no-1-on-hot-100>

[2] Australian Recording Industry
Association, ‘RIA Charts – Accreditations – 2013 Singles’ <http://www.aria.com.au/pages/httpwww.aria.com.aupagesaria-charts-accreditations-singles-2013.htm>

[3] Billboard, ‘Canada’s Digital
Music Sales Rise in 2013 Unlike the U.S.; Eminem, Robin Thicke Among Top Selling
Artists’

[4]Yahoo!
<https://web.archive.org/web/20141222063740/https://www.yahoo.com/music/bp/week-ending-aug-25-2013-songs-robin-marvin-191212316.html>

[5] Paul Grein, ‘Chart Watch: Former
Teen Stars Make Good!(Yahoo, 23 April 2014)

[6]Rumor
Mill, ‘The Rise of “Uptown Funk”: Could It Become the All-Time #1
Seller’

[7]Stuart Dredge, ‘Global music sales
fell in 2013 despite strong growth for streaming services’ (The Guardian 18
March 2014)

[8] IFPI,
‘Digital Music Report 2014’

[9] Robin Thicke’s ‘Blurred Lines’
sets radio audience record

[10] Chart Watch: The Top 10 Albums
and Songs of 2013

[11] Grammy Awards 2014: Full
Nominations List

[12]Nolan Feeney, ‘Here’s Exactly How
Much Money ‘Blurred Lines’ Made (Time 4 March 2015) < http://time.com/3731556/blurred-lines-profits/>

[13]Pamela Chelin, ‘Court case reveals
exactly how much money Pharrell and Robin Thicke made off ‘Blurred Lines’ (Business
Insider 4 March 2015)
http://www.businessinsider.com/court-case-reveals-exactly-how-much-money-pharrell-and-robin-thicke-made-off-blurred-lines-2015-3?IR=T

[14] Stelios Phili, ‘Robin Thicke on
That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, and His New
Film’ (GQ Magazine 6 May 2013)

[15]Eriq
Gardner , ‘Robin Thicke’s ‘Blurred Lines’ Deposition Unsealed: “I Was High
and Drunk” (Hollywood Reporter 24 October 2015)

Intellectual property as an asset: How valuable are our ideas? by Jerry Chiemeke

by Legalnaija | Mar 31, 2016 | Uncategorized

The term “intellectual property” is broad, and is widely used
to refer to intangible assets. Intellectual property differs from other forms
of property because it is intangible—that is, it is a product of the human
imagination.

There are various classes of intellectual property: Patents, Copyright
and Trade marks are perhaps the most prominent. Patent law protects inventions
that demonstrate technological progress. Copyright law protects a variety of
literary and artistic works, including paintings, sculpture, prose, poetry,
plays, musical compositions, dances, photographs, motion pictures, radio and
television programs, sound recordings, and computer software programs.
Trademark law protects words, slogans, and symbols that serve to identify
different brands of goods and services in the marketplace.

The question of valuation of intellectual property is a very vital
one for a number of reasons. Firstly, it greatly strengthens the perception of
the importance of intellectual property in contemporary business environment.
Secondly, it lends credence to the idea of intellectual property as any other
property and reinforces the property rights of the owner. For example, a
clearly valued intellectual property gives unambiguous signals to a third party
of its value and the repercussions of violations of such rights.[1] This
article will attempt to analyze the concept of valuing Intellectual Property,
the prevalent approach to Intellectual Property valuation in Nigeria, a world
view of Intellectual Property Valuation, and the way forward.

Methods of Intellectual Property Valuation

There are three generally accepted ways to value Intellectual
Property. These include: the Cost Approach, the Market Approach, and the Income
Approach.

Cost Approach: A valuation analyst who values
Intellectual Property using the cost approach looks at what it cost to produce
the Intellectual Property, or what it would cost to reproduce the Intellectual
Property on a given effective date. These costs include things like labor,
materials, applied overhead, and capital charges. Depending on the effective
date of the valuation, the valuation analyst may trend costs from a historical
reference point to the effective date.[2]

2.Market Approach: The valuation analyst who values IP using the market
approach looks for comparable transactions in the same industry and of the same
relative size that recently occurred in the open market. Value is determined
indirectly using the comparable IP transaction as a proxy for value of the
target IP. The reasoning is logical: if the market paid X for rights to the use
or own that IP once, then one would expect that the market would reasonably pay
a similar amount again.[3]

Income Approach: This method is the most
principled, requires the most discipline and insight into value-creating
features of the Intellectual Property to complete, and is what valuation
analysts use commonly for Intellectual Property valuation assignments. A
valuation analyst using the income approach bases their opinion on the
Intellectual Property owner’s business plan, marketing and operational inputs,
and other external references. Using this method, the valuation analyst
projects the economic income generated solely from the Intellectual Property
over a discrete period, known as the remaining useful life (RUL) as well as any
residual value after the remaining useful life.[4]

In What Manner Can Intellectual Property Can Be Used As A
Security?

As earlier mentioned, Intellectual
Property differs from other forms of property, due to the fact that it is
intangible in nature. Nevertheless, it remains one of the most valuable forms
of assets, and can indeed serve as security when required.

Intellectual Property could be used as a security by way of either
a legal mortgage, a fixed charge, or a floating charge. The decision as to
which security option is to be exercised over the borrower’s portfolio will be
largely determined by whether security is being granted over registered or
unregistered Intellectual Property. When dealing with registered Intellectual
Property, security will usually be taken through the creation of a fixed
charge.[5]

Fixed charges are equitable (as they grant a beneficial but not
legal interest in secured Intellectual Property) and attach themselves to the
Intellectual Property in question. The lender acquires an equitable interest in
the Intellectual Property but no legal title is transferred. While the wording
used to create the fixed charge is not governed by any statutory or common law
requirements, it is prudent to expressly state that the Intellectual Property
is charged as continuing security for the loan and other obligations set out in
the underlying finance documentation. Ideally the charge should also be granted
by the borrower with full title guarantee; the implication is that the borrower
guarantees that it has the right to grant a charge over the Intellectual
Property in favour of the lender and that the Intellectual Property is
free from other charges, encumbrances, and other rights exercisable by third
parties other than charges, encumbrances, or rights that the lender could
reasonably be expected to know about (such as interests registered against the
Intellectual Property at the Patent Office).[6]

In the event of the borrower’s default, the lender could wish to
sell the secured Intellectual Property to pay off any existing loan obligations
of the borrower. Ideally, the underlying security agreement should expressly
give the lender a power of sale and power of attorney to deal with the
Intellectual Property in place of the borrower (for example, to enter into an
assignment agreement with a third party purchaser). Without an express power of
sale, the lender will have to apply to Court for an order of sale or the
appointment of a receiver. If however, security has been granted by way of a
deed, the lender will have a statutory power of sale and right to appoint a
receiver, exercisable without the need to apply to Court. While the Intellectual
Property remains subject to the fixed charge, the lender should impose
restrictions on the borrower’s ability to deal with the asset (for example, the
grant of licences over the Intellectual Property).

As title to the Intellectual Property secured by the fixed charge
will remain vested in the borrower however, maintenance of the Intellectual
Property will continue to be the responsibility of the borrower. It is
therefore important that the security agreement obliges the borrower not to do
or omit to do anything which may put either the enforceability or validity of
the Intellectual Property in jeopardy (including failing to pay renewal fees or
take action against infringers)

In transactions where the unregistered Intellectual Property of
the borrower is of little commercial value, security will usually be taken by
including these rights under the umbrella of the general list of assets of the
borrower secured by a floating charge. Fixed charges grant to the lender an
interest in specific assets of the borrower, and as such, the borrower is
prevented from dealing with the charged asset without the consent of the
lender. In contrast, a floating charge usually grants to the lender security
over a general list of assets of the borrower that the borrower is free to deal
with.[7]

What is The Situation In Nigeria With Respect To Intellectual
Property Valuation And The Use of Intellectual Property as Security?

In Nigeria, it is fair to say
that the idea of relying on Intellectual Property as a security in a manner similar
to real property, if it exists at all, is yet to be fully embraced by
individuals and corporations alike. The paucity in the use of Intellectual
Property as a security, particularly for debts, is not without cause.

A major challenge in the use of Intellectual Property as security
remains the value to be attached to the Intellectual Property. Unlike tangibles
that can be subjected to easy valuation based on the physical attributes of the
security, Intellectual Property unfortunately cannot pass this test with same
ease. The owners of the Intellectual Property do not always understand the
commercial value of the Intellectual Property assets of their enterprise, and
professionals have still not found a way to subject Intellectual Property to
proper valuation.

The risk and complication that trails the use of Intellectual
Property as a form of security has made it a non-attractive form of
security in Nigeria. The nature of the uncertainty in the use of intellectual
property as collateral is something that cannot be wished away. At present, it
is difficult to assure lenders taking intellectual property as security that
their interest has, in fact, been properly perfected or secured. The reason is
that there is apparently uncertainty among practitioners as to where and how to
file notices, what constitutes notice of a security interest, who has priority,
and what property is covered by a security interest.

Intellectual Property owners are disadvantaged when it comes to
attracting external financing since they do not usually have the track record
or collateral often required by banks. This challenge arises because the loans
secured with intellectual property are more costly to negotiate and administer,
if they can be arranged at all. Furthermore, there is still insufficient
knowledge and education about the unique nature of Intellectual Property
rights, thus it can be understood why Nigerians are reluctant to base loan
agreements on Intellectual Property being the existing collateral.

What Is The Attitude From The Rest Of The World?

While it is admitted that Nigeria has been seemingly hesistant in taking
up Intellectual Property as a form of security, the same cannot exactly be said
of other countries of the world, and developed nations in particular. In other
words, persons in various parts of the world, natural and artificial persons
alike, have recognized and exploited the relevance of Intellectual Property as
a valuable asset, and have moved with the times to good effect. Many
industries, notably the electronics, software, healthcare, consumer goods,
telecommunications, media and entertainment are substantially dependent upon
this intangible asset.

Intellectual Property is quickly becoming the most prized asset of many
companies. In a survey conducted by the United States Patents and Trademarks
Office (USPTO) in the year 2011, Intellectual Property in the U.S. was valued
at over $5 trillion[8]. The development of new technologies and the viral
spread of communication networks have facilitated the rise of businesses that
own very few tangible assets and owe their success almost exclusively to their
Intellectual Property. The ability to use Intellectual Property rights as the
object of security interests is being recognized as an attractive prospect,
rather than a mere eccentricity.

Much of corporate wealth is now tied up in Intellectual Property. It
increasingly constitutes a larger percentage of the overall value of U.S.
businesses and can be appropriated as a form of security. In today’s business
world, the Intellectual Property portfolio of many companies forms an important
part of the company’s assets. As such, banks and other financial institutions
lending money to companies (in Western Europe, the U.S.A., Canada and other
developed countries) are increasingly taking security over borrowers’
Intellectual Property portfolios as part of a security package, particularly in
transactions where the Intellectual Property held by the borrower is of
significant commercial value.[9]

What Can And Should Be Done?

Banks could revisit their lending policies and conditions for
collateral, to provide more room for the use of intangible assets as is the
nature of Intellectual Property. An increase in collaborative efforts between
agencies designated to administer Intellectual Property in Nigeria, and
organisations such as Intellectual Property Lawyers Association of Nigeria
(IPLAN) would also be helpful. Beyond all that, there is need to create public
awareness on the value inherent in the existence and ownership of Intellectual
Property, and furthermore, encourage property valuers to expand their focus to
figuring out the worth of intangible assets.

Endnotes

[1] Singla, Ankur, “Valuation of Intellectual Property”, available at
www.indlaw.com.

[2] Pellegrino & Associates, LLC, “Valuing Intellectual Property”,
2005.

[3] Ibid.

[4] Ibid.

[5] Esomonu J, & Oloyede, A. “Intellectual Property as a Form of
Security”, Seminar Paper on Secured Credit Transactions Presented at the
Faculty of Law, University of Lagos, 2011.

[6] Ibid.

[7] Ibid.

[8] http://trentostler.com/blog/security-interests-intangibles-approach-the-tangibles/

[9] Esomonu J, & Oloyede, A, supra, Note 5.

Editor’s note: This article was initially posted by the author on www.linkedin.com

COPYRIGHT INFRINGEMENT AND PLAGIARISM

by Legalnaija | Oct 10, 2014 | Uncategorized

credits: slideshare.net

With the recent brouhaha following Linda Ikeji’s blog being
temporarily shut down by Blogger, many writers/bloggers/online content marketers
are frantically ~~praying~~ searching for information regarding copyright
infringement in order to ensure the devil does not send a MrAyedee into
their life they don’t run fowl of the law and also have their blogs shut
down. While copyright laws regarding the internet are well established in
foreign jurisdictions, in Nigeria ~~we jus dey open eye~~, blogging just
blew up in Nigeria a little over 5 years ago. But you can always catch our blog
post on copyright
laws.

People tend to get a little
protective of their stuff because there are many unscrupulous people out there
who take content and pass it off as their own. Having done all that hard work
with none of the credit is totally not cool!

Copyright
infringement occurs when any person uses any of your work – no matter how small
it is – for any of his/her personal benefits irrespective of whether or not he
gives you the attribution, unless that person has a written permission from you. Content could
be in many forms such as text, artwork, sound and video (including animations),
ideas, inventions or symbols. Once your work is published – irrespective of
whether on paper or digital media – you own the sole rights to: use the work;
allow reuse; allow derivatives and allow others make profit from your work. If you are
the copyright holder, it means that ONLY YOU are allowed to make copies
of the work and should you wish – others and only the ones to whom you give
written permission can use the work. At this point it is important to note that
the saying “because it’s posted on the
internet, then it’s free” is totally misleading and untrue.

credits- dearauthor.com

Plagiarism on the other hand is “the use of another’s
information, language, or writing, when done without proper acknowledgment of
the original source.” However, the critical element of it is the final part.
The one thing that ties all plagiarism together is going beyond merely
duplicating the work, but also not crediting the source and thus taking the
material for yourself. However, not all incidents of plagiarism are considered
copyright infringement. Plagiarizing works in the public domain, though
unethical, is not considered copyright infringement.

Plagiarism is an ethical concern that may have other elements
of intellectual property theft tied with it. Copyright infringement, on the
other hand, is illegal and carries with it potentially significant
consequences. Plagiarism can be avoided by providing attribution and giving credit,
copyright infringement cannot. So how can one be sure not to plagiarize or
infringe on another’s work? Simple:

If you took the photo or created the graphic and are not
subject to a Work For Hire agreement, then you own it. Taking another person’s
image or graphic and giving them a “shout out,” linkback, or any other type of
attribution does not negate copyright infringement. Copyright law gives the
copyright holder the right to decide where their work is published and maybe
they don’t want their work on your site, in your book, included in your
newsletter or distributed to your social media network.

Ask people for the rights to use their work, it is either
they say yes or no. It may be acceptable to use an image, as is, on your blog,
but you may not have the right to use that same image in a paid newsletter,
book, video or other type of work. Unless the image is in the public domain or
you are the copyright holder, you have to consider the use(s) granted by the
copyright holder or license. A copyright holder may be agreeable to certain
uses but not to others. Also when you take part of a person’s written/published
work, it is important that you write the reference properly in other to avoid
plagiarism allegations.

Adedunmade Onibokun

@adedunmade

WHY YOU SHOULD NOT BUY/SELL PIRATED CDS & ARTIST WORKS

by Legalnaija | Sep 2, 2014 | Uncategorized

The Copyright Act was promulgated in 1988 as the Copyright Decree (No.
47) of that year. It repealed the Copyright Decree (No 61) of 1970. With the
revision of all existing federal legislation, the Decree was re-designated the
Copyright Act and contained in Cap. 68, Laws of the Federation of Nigeria,
1990. The Act was amended by the Copyright (Amendment) Decree (No. 98) of 1992
and further amended by the Copyright (Amendment) Decree (No. 42) of 1999. It
became part of the codification of Nigerian Law done in 2004 and is presently
referenced as Cap 28 Laws of the Federation of Nigeria, 2004.

How will you feel if you were Tuface Idibia, driving through
the Lagos traffic on a lovely and bright Saturday afternoon and to your sudden
dismay, you see this ~~thief~~ audio cd vendor hawking pirated copies of
your ~~sweat and blood~~ CDs to willing buyers in traffic, won’t that make
you want to ~~break someone’s head and beat the shit out of him~~ call the
attention of the police to such a vendor. Grooming a talent takes years of training
and commitment to an artist’s passions, dreams and aspirations, it’s a great
loss to have all that work going down the drain while ~~some stupid children~~
pirates make illegal copies of your work and make undeserved profits from your
work, it’s a crime that’s killing our talent industry and must really be stopped.

Nigerian Copyright law in Section 1
of the Copyright Act, Cap 28, LFN 2004 states that the following shall be
eligible for copyright‐ literary works; musical works; artistic works; cinematograph
films; sound recordings; and broadcasts. However, 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 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.

Copyrights are conferred on every
work eligible for copyright of which the author or, in the case of a work of
joint 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 of, or is
domiciled in Nigeria; or (b) a body corporate incorporated by or under the
laws of Nigeria.

INFRINGEMENT OF COPYRIGHT

Section 15 of the Copyright Act states that a Copyright is
infringed by any person who without the licence or authorization of the owner
of the copyright‐

(a)
does, or causes any other person to do an act, the doing
of which is controlled by copyright;

(b) imports or causes to be imported into Nigeria any copy of a work
which if it had been made in Nigeria
would be an infringing copy under this section of this Act;

(d) distributes by way of trade, offers for sale, hire or otherwise or
for any purpose prejudicial to the owner of the copyright, any article in
respect of which copyright is infringed under paragraph (a) of this subsection;

(e) makes or has in his possession, plates, master tapes, machines,
equipment or contrivances used for the purpose of making infringed copies of
the work;

(f) permits a place of public entertainment or of business to be used
for a performance in the public of the work, where the performance constitutes
an infringement of the copyright in the work, unless the person permitting the
place to be so used was not aware, and had no reasonable ground for suspecting
that the performance would be an infringement of the copyright;

(g) performs or causes to be performed for the purposes of trade or
business or as supporting facility to a
trade or business, any work in which copyright subsists.

Infringement of copyright shall be
actionable at the suit of the owner, assignee or an exclusive licensee of the
copyright, as the case may be, in the Federal High Court exercising
jurisdiction in the place where the infringement occurred; and in any action
for such an infringement, all such relief by way of damages, injunction, accounts
or otherwise shall be available to the plaintiff as is available in any
corresponding proceedings in respect of infringement of other proprietary
rights. This means the owner of licensee of a copyright can sue any person whom
infringes on the copyright and can claim damages or ask the court to stop the
act of infringements.

Criminal
liability

(1) Any person who‐

(a) makes or causes to be made for sale, hire, or for the purposes of
trade or business any

infringing
copy of a work in which copyright subsists; or

(b) imports or causes to be imported into Nigeria a copy of any work
which if it had been

made in
Nigeria would be an infringing copy, or

(c) makes, causes to be made, or has in his possession, any plate,
master tape, machine, equipment or contrivance for the purposes of making any
infringing copy of any such work; shall, unless he proves to the satisfaction
of the court that he did not know and had no reason to believe that any such
copy was an infringing copy of any such work, or that such plate, master tape,
machine, equipment or contrivance was not for the purpose of making infringing
copies of any such work, be guilty of an offence this Act and shall be liable on
conviction to a fine of an amount not exceeding NI,000 for every copy dealt
with in contravention of this section or to a term of imprisonment not
exceeding five years, or to both such fine and imprisonment.

(2) Any person who‐

(a) sells or lets for hire or for the purposes of trade or ‘business,
exposes or offers for sale or

hires any
infringing copy of any work in which copyright subsists; or

(b) distributes for the purposes of trade or business any infringing
copy of any such work; or

any such
work,

(d) has in his possession, sells, lets for hire or distribution for
the purposes of trade or business or exposes or offers for sale or hire any
copy of a work which if it had been made in Nigeria would be an infringing
copy, shall, unless he proves to the satisfaction of the court that he did not
know and had no reason to believe that any such copy was an infringing copy of
any such work, be guilty of an offence under this Act and shall be liable on conviction
to a fine of N100 for every copy dealt with in contravention of this section,
or to a term of imprisonment not exceeding two years or in the case of an
individual to both such fine and imprisonment.

(3) Any person who, without the consent of the owner, distributes, in
public for commercial purposes, copies of a work in which copyright subsists by
way of rental, lease, hire, loan or similar arrangement, shall be guilty of an
offence under this Act, and shall be liable upon conviction to a fine of N 100
for every copy dealt with or imprisonment for six months or to both such fine
and imprisonment.

(4) The court before which any
proceedings are taken for any offence under subsections (1), (2) and (3) of
this section, whether the alleged offender is convicted or not, may order all
copies of the works, plates, master tapes, machines, equipment and contrivances
in the possession of the alleged offender, which appear, to be infringing
copies, of the works, to be destroyed or delivered up to the owner of the
copyright or otherwise dealt with as the court may think fit.

(5) Where an article has been seized by a police officer or an
authorised officer in connection with a suspected offence under this Act, a
court may on the application of the Attorney‐General of the Federation or owner
of the copyright in connection with which such offence is suspected to have
been committed, order that the article be destroyed or delivered up to the
owner of the copyright or otherwise dealt with as the court may think fit,
notwithstanding that no person has been charged with the suspected offence.

Offence by
bodies corporate

(1) Where an offence under this Act has been committed by a body
corporate, the body corporate and every person who at the time the offence was
committed was in charge of, or was responsible to the body corporate for the
conduct of the business of the body corporate shall be deemed to be guilty of
such offence and shall be liable to be proceeded against and punished
accordingly: Provided that nothing contained in this subsection shall render
any person liable to any punishment, if he proves that the offence was
committed without his knowledge or that he exercised all due diligence to
prevent the commission of such offence.

(2) Notwithstanding anything contained in subsection (1) of this
section, where an offence under this Act has been committed by a body corporate
and it is proved that the offence was committed with the consent or connivance
of, any director, manager, secretary or other officer of the body corporate
such director, manager, secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be proceeded against and punished
accordingly.

(3) For the purposes of this section‐ “body corporate”
includes a firm or other association of persons;
and “director” in relation to a firm includes a partner in the firm.


Source: www.copyright.gov.ng

Adedunmnade Onibokun

@adedunmade