The Need For A Right Of Privacy Over Commissioned Works Under The Nigerian Copyright Law | Emmanuella M. Odidika

INTRODUCTION

Copyright is a branch of intellectual property that vests
exclusive rights for creative works of authorship in respect of works provided
for under Section 1(1) of the Copyright Act Chapter C28 Laws of Federation of
Nigeria 2004 (the “Copyright Act”).

As opposed to patents and industrial designs whose protection is
dependent on its registration, copyright protection automatically vests in the
author of the work upon the fixation of the work into a definite form without
the prerequisite of registration or compliance with any formality.[1] It
is also pertinent to note that what copyright protects is the expression of an
idea and not the idea in itself.

The purpose of copyright protection is to confer on the author
the exclusive right over the creative work and to prohibit or authorize other
persons to exploit same. In the subsequent part of this paper, the author shall
consider the different realms of rights conferred on the author of a copyright
work under the Nigerian Copyright Act and examine the need for a right of
privacy over a commissioned work. The work shall also comparatively analyse the
position in the United Kingdom and conclude by proffering workable
recommendations.

AUTHOR’S RIGHTS UNDER THE COPYRIGHT
ACT

The Act confers certain rights on the author of a copyright
work. These rights include:

1.     
Economic rights and;

2.     
Moral rights.

Economic rights: This grant to the author the exclusive right to
commercially exploit the work against all other persons, thereby protecting his
pecuniary interest in the work. However, economic rights are for a limited
duration of time upon expiration of which, the work goes into the public domain
following which the members of public can freely exploit. The 1st Schedule to
the Copyright Act provides for the duration of copyright in respect of various
categories of works.

Moral rights: On the other hand, moral rights seek to protect
the reputation and honour of the author in respect of the creative work in
which copyright subsists.

Under the provisions of Section 12(1) of the Copyright Act, two
forms of moral rights are conferred on the author of a copyright work and they
include;

1.     
Right to paternity 

2.     
Right to integrity 

The right to paternity indicates the author’s right to claim
authorship of his work. It places a requirement that his authorship shall be
mentioned where the work is exploited in any manner.[2]

Hence, a false attribution of authorship to a person other than
the true author of the work will be tantamount to a legal wrong. This was
exemplified in the case of Maurice Ukaoha
v. Broad-Based Mortgage Finance Limited & Anor[3]
where the court held that the acts of the defendants which included the model
of the plaintiff being advertised by the defendants in some national newspapers
as its proposed headquarters as well as attributing authorship of the model to
a 3^rd party instead of the plaintiff without the consent of the
plaintiff constituted an infringement of the plaintiff’s honour and reputation
as the author and owner of the model.

The right to integrity which is the second category of moral
right is the right of the author to object and seek relief in connection with
any distortion, mutilation or other modification of, and any other derogatory
action in relation to his work, where such action would be prejudicial to his
honour or reputation.[4]

The essence of these rights are not far-fetched and can be
linked to the principal objective of intellectual property protection, which is
to protect the private interests of owners of intellectual work by recognizing
their ownership rights in their creations or inventions.

AUTHOR’S RIGHTS VIS-À-VIS THE RIGHTS
OF COMMISIONERS OVER COMMISSIONED WORKS

The Copyright Act essentially provides that ownership of copyright
vests in the author.[5]
This provision still stands where the author is being commissioned to create
the work or under a contract of employment.[6]
Nonetheless, the Act stipulates that a written contract stating otherwise will
overturn the general rule, thereby vesting ownership of copyright in the
employer, under a contract of employment or the commissioner, in respect of a
commissioned work.

Irrespective of this exception and other exceptions provided for
under the Act, it is evident that the Copyright Act seeks to protect the
interest of the author with respect to his creation whether the work was
carried out under a contract of employment or commissioned. The rationale
behind the stipulation of the Act which vest copyright in the author is to
ensure that his authorship is protected.

The author possessing copyright in a work, whether literal,
artistic or musical work has the right to exploit the work in various manner
ranging from reproducing, publishing, selling, distributing, communicating the
work to the public and many other acts provided for under the Act.[7]

However, there are circumstances whereby these acts or
exploitation may be unfavourable or prejudicial to a person other than the
author and this may occur where a work or creation is being commissioned. 

A practical example is photographs and films commissioned for
private and domestic purposes. In this instance, where a person commissions
another person to take a photograph or make a film, copyright subsists in the
outcome of the work in favour of the latter, that is the author. The author
reaps the benefit of exploiting the photograph or film either by exhibiting or
issuing of the work to the public, as copyright subsists in his favour and
without regard to the purpose for which the work was commissioned.

Moreover, the Copyright Act does not make any provision
protecting any right whatsoever, in favour of the commissioner with respect to
the commissioned work. Hence, the author is at liberty to do whatever he
pleases with the commissioned work and can find solace under the provisions of
Section 10 of the Copyright Act.

RIGHTS OF A COMMISSIONER OVER
COMMISSIONED WORKS: A COMPARATIVE ANALYSIS

Under the UK Copyright, Designs and Patents Act 1988 (C.D.P.A),
there are four moral rights recognized under UK law:

1.     
The Right to Attribution; that is the
right to be identified as the creator of your work.

2.     
The Right of Integrity; that is the
right to object to derogatory treatment of your work which negatively affects
the author’s reputation.

3.     
The Right to object to False
Attribution; that is the right to not be identified as the creator of a work
created by another.

4.     
The Right of Privacy; that is the
right to not have photographs or films commissioned for private and domestic
purposes exhibited, broadcast or issued to the public.

The first two moral rights seek to protect the creator of the
work and they are in line with the rights of paternity and integrity granted
under the Nigerian Copyright Act. However, the last two moral rights are
concerned with both managing a person’s reputation and the privacy of those who
have commissioned photographs or films.

The rationale behind section 85 of the U.K. Copyright, Designs
and Patents Act 1988 is to protect the interest of the commissioner and to
enable him control the exploitation of works commissioned for private and domestic
purposes. Hence, anyone commissioning the taking of a photograph or the making
of a film in which copyright subsists in the resulting work but for private and
domestic purposes is conferred the right not to have the work exploited by:

1.     
Issuing copies of the work to the
public;

2.     
exhibiting or showing the work in
public or;

3.     
Communicating the work to the public.[8]

This provision guarantees that the author of the photograph or
film commissioned for private or domestic purpose, is restricted from exercising
his right of ownership in a way that is detrimental or prejudicial to the
commissioner’s privacy.

Thus, the doing or authorising of any acts under section 84(1)
of the C.D.P.A by the author, infringes the right of privacy of the
commissioner and the latter can successfully institute an action against the
author.

CONCLUSION & RECOMMENDATION

The right of privacy over commissioned works is very essential
and plays a vital role in protecting the privacy of the commissioner especially
where the work commissioned is for private or domestic purpose and not for
public display, commercial purpose or enjoyment. 

The Copyright Act does not provide for a right of privacy
neither does it make a similar provision protecting the privacy of
commissioners in relation to commissioned works. Nonetheless, the commissioner may
rely on the exception provided for under section the 10(2) of the Act. 

It provides that where there is a contrary stipulation in a
written contract, then copyright will not vest initially in the author of the
work or creation. 

This simply means that the commissioner and the author
(photographer or filmmaker in this case) may sign a written agreement stating
that copyright in the work would vest in the commissioner or may agree that
while copyright may vest in the author, the commissioner will possess the right
to restrict the author from issuing copies, exhibiting or communicating the
work to public under the contract and this will be binding on both parties.

The photographer may also sign a release agreement which
dictates that all his rights in the photographic work are released and now
conferred on the commissioner of the work.

In other words, in the absence of a release agreement or a
contrary provision limiting the rights of the author in respect of a
commissioned work, the commissioner will be incapable of restricting the author
from issuing copies, exhibiting or communicating the work to the public
notwithstanding the fact that the work was created for private or domestic
purposes.

Therefore, it is important for the right of privacy to be
incorporated into the copyright Act in order to maintain an equilibrium between
the author’s right of ownership and the commissioner’s right of privacy. This
will ensure that whilst ownership of copyright in a commissioned work vests in
the author, the commissioner of the work retains the right to restrict the
author from issuing copies, exhibiting or communicating the work to the public,
where the work was commissioned for private or domestic purpose. 

Emmanuella M. Odidika is a law graduate of Olabisi Onabanjo
University and was called to the Nigerian bar in 2019. She currently works in
the law firm of Wole Olanipekun & Co. as a trainee associate. Emmanuella
has interest in general practice areas but she has special interest in
Intellectual Property Law practice. She believes Intellectual Property is a
valuable asset in business and key to economic growth and development.