Copyright Protection under the Nigerian Law: Eligible Works and Criteria for Protection

Copyright is a form of intellectual property protection. It is an exclusive right conferred on the author of an eligible work, which authorises him/her to do certain specified acts in relation to his/her creative work. Copyright protects creative works. It is not every work that is eligible for copyright protection. The Nigerian Copyright Act enumerates works eligible or copyright protection, confers copyright on eligible works, and governs the general operation of the copyright regime in Nigeria.

Works Eligible for Copyright Protection
There are 5 broad categories of works that are eligible for copyright protection in Nigeria.
These works are expressly stated by section 1(1) of the Nigerian Copyright Act. They are:
i. Literary works;
ii. Musical works;
iii. Artistic works;
iv. Cinematograph works;
v. Sound recording; and
vi. Broadcasts.

Works eligible for copyright protection are not inventions or things capable of any technical application. They are works of a creative or artistic nature.

Literary works include novels, stories, film scenarios, letters, dictionaries, directories, essays, books, magazines, lectures, sermons, computer programmes and works of a similar nature. Works that can clearly be classified as literary works are eligible for copyright protection, irrespective of their literary quality. This means that a badly written essay will be eligible for
copyright protection, biographies and tributes in a funeral programme are also eligible for copyright protection.

Section 51 of the Copyright Act defines musical works to include works which are composed for musical accompaniment. An instrumental piece, with or without vocals, is a musical work, eligible for protection. Any musical composition irrespective of its musical quality is eligible for copyright protection. Thus, songs that are full of meaningless repetitions, screaming and the occasional throwing around of words, whether or not accompanied by a musical instrument, are still eligible for copyright protection.

Artistic works include drawings, painting, engravings, maps, diagrams, photographs, articles of applied handicraft and industrial art, works of architecture (such as building plans) etc. All artistic works are eligible for protection irrespective of their artistic quality.

Cinematograph film is defined by section 51 of the Copyright Act and it means the first fixation of a sequence of visual images, which may be reproduced and which includes the recording of a sound track that may be associated with the cinematograph film. Examples of cinematograph films are movies, documentaries, music videos etc.

Broadcast means sound or television broadcasts. Examples include radio programmes and television programmes.

A sound recording refers to the fixation of a sequence of sounds that is capable of being heard by the ears. Audio cassettes, MP 3 and sound recordings done on a phone are eligible for protection as sound recordings.

Criteria for Protection
There are two requirements that an eligible work must satisfy in order for it to be protected by copyright. It must be original and it must be fixed. These terms are usually referred to as originality and fixation.

The originality requirement is satisfied if the author or creator of the work has spent a reasonable time in creating, doing or making the work, such that the work has a unique quality or character. Copyright will not be conferred on a cheap copy or imitation of another’s work. The work in respect of which copyright is sought must be an original product of the author’s intellect or imagination and not a mere regurgitation or a slight modification of another’s work.

Section 1(2) of the Copyright Act provides that a work is fixed, if it is put 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’. The condition of fixation demands that a literary, musical or artistic work be recorded in any medium from which it can be retrieved at will, either by reading, seeing or listening. The requirement of fixation is encapsulated in the aphorism; ‘copyright does not protect ideas’. The condition of fixation is satisfied if a work is recorded on a phone, either
by writing, by typing or by an audio recording etc. Until an idea is fixed, recorded, written down or drawn, it is ineligible for copyright protection.

At the time the provision of fixation was made by the Copyright Act, there were no smartphones, Instagram, Facebook or the likes. Nevertheless, a post on Facebook, Instagram, WhatsApp, an email etc is eligible for copyright protection if it is original. A cinematograph film, sound recording or broadcast is not required to be fixed, because by their very nature, they are recorded/fixed.

Where a literary, musical or artistic work is original and fixed in any medium of expression, it becomes eligible for copyright protection. It is therefore important that before you share your ideas, write, type or record them, so that in the event of any dispute, you can assert the existence of copyright protection. There have been cases of people who claimed that they
shared their ideas with media houses or companies and their ideas were used without any credit given them. This can be prevented or where it occurs, redress sought if before ideas are shared, they are recorded. This makes it easier to establish that an idea was stolen or copyright infringed.