Copyrights and Neighbouring Rights under the Nigerian Intellectual Property

INTRODUCTION:

Intellectual Property law ensures private property rights enabling individual and business outfits to appropriate to themselves the value of the information they produce and encourage them to produce more. There are two main concepts of intellectual property. These include the moral and economic right of a work.

It is important to note that Copyright is the main aspect of intellectual property. This is the right that protects the work of an author in any circumstance from invasion or infringement. The protection of copyright is an obligation of nations to promote and encourage innovation and creativity. The copyright law gives the owner of copyrighted work the exclusive right to control the reproduction of copyrighted works. This right, however, does not bestow on the copyright owner an absolute monopoly to control access to copyrighted information.

Neighbouring rights, also referred to as related rights or neighbouring copyrights, are a distinct set of rights that protect the interests of performers, record labels, and other rights owners associated with the commercial exploitation of sound recordings. These rights are separate from traditional copyright and play a vital role in the Nigerian music industry.

There are four major categories of Intellectual property rights which comprises of Copyright, Patents, Trademark, and Industrial designs respectively. The focus of this article is on Copyrights and Neighbouring rights.

• DEFINITION OF TERMS

1. INTELLECTUAL PROPERTY:

According to Paul Marett, the term intellectual property has come into vogue relatively recently. Sometimes, the term is used to include Copyright, the law of confidence and others are classified as industrial property rights such as Patent, Trademark, and industrial design.[1]

David Bainbridge defines intellectual property as “that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill”.[2] Intellectual property law deals with the protection of inventions. It is also a means of safeguarding the fruits of their creativity and maintaining their incentives to invest in innovation.

2.    COPYRIGHTS:

Okoye defines Copyright as “the right which the law gives an author or other originator of an intellectual production whereby he is invested with the sole and exclusive privileges of reproducing and selling copies of his work”.

However, the Black’s law Dictionary, sixth edition, defines copyright as “the right of literary property as recognised and sanctioned by positive law. 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.”

Copyright has also been defined by Ekpo M.F., Director General Nigerian Copyright Commission (May 1997) as “a right in law conferred on authors and owners of creative works be they literary, scientific, or artistic in nature, to control the doing of certain acts in relation to those works. This means that the work is protected against unauthorised use. The rationale for this protection is that the law regards the work as property, which, like other properties entitles the owner to the exclusive right of usage.”

1. NEIGHBOURING RIGHTS:

Neighbouring rights, also referred to as related rights or neighbouring copyrights, are a distinct set of rights that protect the interests of performers, record labels, and other rights owners associated with the commercial exploitation of sound recordings. These rights are separate from traditional copyright and play a vital role in the Nigerian music industry.

1.2 BRIEF HISTORICAL BACKGROUND OF INTELLECTUAL PROPERTY

Although many of the legal principles governing intellectual property evolved over the centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became common in the United States of America (US).

The modern usage of the term intellectual property goes back as far as the year 1888 with the founding in Bern of the Swiss Federal Office for Intellectual Property (the Bureau fédéral de la propriété intellectuelle). When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they also located in Berne, and adopted the term intellectual property in their new combined title.

The United International Bureau for the Protection of Intellectual Property, subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations.

The protection of intellectual properties in many countries of the world has been implemented by their government through the enactment of dynamic and vibrant laws. These laws are reviewed regularly from time to time as a basis of addressing emerging and current issues in the operating environment. Undoubtedly, the protection of intellectual property rights of creators and inventors has attracted global attention, and this has been instrumental to the establishment of two global organizations set up to protect intellectual properties in the world. These organizations are:

1. World Intellectual Property Organization (WIPO), and
2. International Forum for Reproduction Rights Organization (IFRRO).

These organizations are responsible for overseeing the protection and enforcement of intellectual property rights of creators and inventors across member countries. Apart from this, treaties, and agreements have been established by these organizations involving several countries of the world, including Nigeria. For instance, Nigeria is a signatory to several treaties and international agreement such as Berne Convention, 1886; Universal Copyright Convention, 1952; Trade Related aspect of Intellectual Property Right and the World Intellectual Property Organization; among others[3].

• NATURE OF RIGHTS OF AN INTELLECTUAL PROPERTY OWNER

1. MORAL RIGHTS[4]:

Moral right is a right that grants the author ownership of the intellectual creation and protects the personal and reputational value of a work, as opposed to its purely monetary value. Moral rights are especially important under intellectual property law since the author has the right to decide whether he wants to disclose the work to the public or not.

The author can set the conditions of its commercial exploitation and defend its integrity as the author is deemed to have the moral right to control its creation, moral right relates to the connection between an author and his creation.

2. ECONOMIC RIGHTS:

This relates to the commercial value of the creation and grants the author a monopoly to exclusively exploit his creation for a certain period. This fosters industrial and commercial relations as well as creativity. Under this, right holders can prevent third parties from using, producing, and selling the creation without authorization. If rights are infringed the author can take legal action against unlawful use of his literary, artistic, or industrial creations.

• COPYRIGHT UNDER THE NIGERIAN INTELLECTUAL PROPERTY LAW

The essence of a Copyright is to protect intellectual property of someone and to stop it from being reproduced and sold by unauthorized persons. It therefore enables the author of the work to enjoy the fruit of his or her hard work. A Copyright does not protect mere ideas, but it protects the expression of an idea in a tangible form.

Okoye defines Copyright as “the right which the law gives an author or other originator of an intellectual production whereby he is invested with the sole and exclusive privileges of reproducing and selling copies of his work”.

However, the Black’s law Dictionary, sixth edition, defines copyright as “the right of literary property as recognised and sanctioned by positive law. 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.”

The Copyright Act 2022[5] does not give a clear definition of copyright. It, however, recognizes it as a right to stop or restrict or to restrain others from printing or interfering with another’s work.

Copyright law was governed in Nigeria by the English Copyright Act 1911 which was made applicable to Nigeria by virtue of an order-in-council under Section 25 of the Act of 1911 of Great Britain. Nigeria applied the 1911 Act until 1970 when it replaced it with the Copyright Act of 1970[6]. Umaru[7]notes that the 1970 Act was inadequate as it could not combat the increasing rate of piracy and other copyright infringements, coupled with the need to increase the penal sanctions and provide adequate remedial measures. Hence, the birth of the 1988 Act. In 1992 vide the Copyright Amendment Decree No. 98 of 1992, the Act was amended. The primary legislation now is the Copyright Act 2022.

Section 2 (1) of the Copyright Act 2022 specifies works eligible for copyright to include literary works, musical works, artistic works, sound recording, audiovisual, and broadcasts. Literary works include novels, poems, plays, reference works, newspapers etc. Musical works covers musical scores in the form of sheet music, broadsheets or other notation, artistic works include paintings, drawings, sculpture, maps etc.

2.2 DEFINITION AND SCOPE OF NEIGHBORING RIGHTS IN NIGERIA[8]

In Nigeria, neighboring rights for performers are governed by the Nigerian Copyright Act 2022. A performer is an individual who sings, deliver, recite, play, dance, act, or otherwise perform literary, dramatic, musical, or artistic works. It encompasses a wide range of performers, including singers, musicians, actors, dancers, and other individuals involved in the creation of sound recordings.

Neighboring rights in Nigeria encompasses the rights and protections granted to performers, record labels, and other rights owners associated with the commercial exploitation of sound recordings. These neighboring rights are separate from traditional copyright and aim to safeguard the interests of these stakeholders.

1. PERFORMERS:

Neighboring rights for performers in Nigeria refer to the exclusive rights granted to individuals who contribute their artistic performances to sound recordings. These rights include:

1. The right to authorize or prohibit the reproduction of their performances in sound recordings.
2. The right to authorize or prohibit the distribution of sound recordings embodying their performances.
3. The right to authorize or prohibit the rental or lending of sound recordings to the public
4. The right to authorize or prohibit the public performance of their recorded performances.

Performers have control over the use and exploitation of their recorded performances and have the opportunity to earn income through licensing and royalty collection.

2. RECORD LABELS:

Neighboring rights for record labels in Nigeria grant them exclusive rights and protections in relation to the sound recordings they produce and distribute. These rights include:

1. The right to authorize or prohibit the reproduction of sound recordings.
2. The right to authorize or prohibit the distribution of sound recordings.
3. The right to authorize or prohibit the rental or lending of sounds recordings to the public.
4. The right to authorize or prohibit the making available of sound recordings to the public through digital means.
5. The right to authorize or prohibit the broadcasting of sound recordings.

Record labels have the authority to control the reproduction, distribution, rental, and digital availability of their sound recordings. They can negotiate licensing agreements, collect royalties, and protect their investments in recording, production, and distribution.

3. OTHER RIGHTS OWNERS:

Neighboring rights in Nigeria also extend to other rights owners, such as music publishers, composers, and songwriters, who hold rights in the underlying musical compositions contained within sound recordings. These rights include:

1. The right to authorize or prohibit the reproduction of their musical compositions in sound recordings.
2. The right to authorize or prohibit the distribution of sound recordings embodying their musical compositions.
3. The right to authorize or prohibit the public performance of their musical compositions when incorporated into sounds recordings.
4. The right to authorize or prohibit the broadcasting of sound recordings embodying their musical compositions.

Other rights owners can exercise control over the use and exploitation of their musical compositions within sound recordings and receive compensation for the use of their works.

These neighboring rights provide performers, record labels, and other rights owners in Nigeria with legal protections and avenues for revenue generation. By understanding and asserting these rights, stakeholders can effectively manage their intellectual property, enter into licensing agreements, and ensure fair compensation for the use of their performances, sound recordings, and musical compositions.

2.3 TYPES OF PERFORMANCES UNDER NEIGHBOURING RIGHTS

Neighboring rights cover various types of performances that are protected under intellectual property laws. Under neighboring rights, the following examples of performances are typically covered:

1. MUSICAL PERFORMANCES:

This includes performances by singers, musicians, bands, and orchestras. It encompasses vocal performances, instrumental performances, and any live or recorded performances of musical works.

2. SPOKEN WORD PERFORMANCES:

These include performances involving spoken word, such as poetry recitals, storytelling, or spoken word recordings.

3. DJ PERFORMANCES:

These include performances by DJs who create and mix music sets or playlists for live audiences or recordings.

4. VOICE-OVER PERFORMANCES:

These include performances by voice actors in dubbing, narration, commercials, video games, animated films, and other voice-over work.

5. SOUND EFFECTS PERFORMANCES:

These include performances involving the creation or manipulation of sound effects for audiovisual works, including films, TV shows, and video games.

It is important to note that neighboring rights protect the performances themselves, irrespective of the medium in which they are fixed, such as sound recordings or audiovisual works. These rights ensure that performers have control over the use, reproduction, distribution, and public performance of their recorded performances, and they are entitled to fair compensation for the commercial exploitation of their works.

2.4 IMPACT OF NEIGHBORING RIGHTS ON PERFORMERS, RECORD LABELS, AND RIGHTS OWNERS IN NIGERIA

Neighboring rights have quite a huge significant impact on performers, record labels, and rights owners in Nigeria. Below are some key impacts of neighboring rights on these stakeholders:

1. FINANCIAL COMPENSATION:

Neighboring rights provide performers, record labels, and rights owners with a valuable source of income. By asserting their neighboring rights, they are entitled to receive royalties for the use of their sound recordings and performances. This financial compensation helps support their artistic endeavors, invest in new projects, and sustain their careers in the music industry.

2. RECOGNITION AND ATTRIBUTION:

Neighboring rights help ensure that performers receive recognition and attribution for their creative contributions. Performers invest their time, talent, and effort into creating memorable performances, and neighboring rights ensure that they are acknowledged and credited for their work. This recognition enhances their professional reputation and can lead to further opportunities in the industry.

3. CONTROL OVER USE OF WORKS:

Neighboring rights grant performers, record labels, and rights owners control over the use of their sound recordings and performances. They have the authority to authorize or prohibit the use of their works in various contexts, such as public performances, broadcasting, and digital distribution. This control allows them to negotiate favorable licensing agreements, maintain artistic integrity, and protect their works from unauthorized exploitation.

4. REVENUE STREAMS AND BUSINESS OPPORTUNITIES:

Neighboring rights create additional revenue streams for performers, record labels, and rights owners. Licensing their works for public performances, broadcasting, streaming, and other uses generates income through royalty payments. This income can support the development of new artists, the production of new recordings, and the growth of record labels and rights management companies.

CONCLUSION

Overall, neighboring rights have a positive impact on performers, record labels, and rights owners in Nigeria by providing financial support, recognition, control, and business opportunities. They empower rights holders to protect their works, earn income, and contribute to the cultural landscape of the country.

While Copyrights is the right which the law gives an author or other originator of an intellectual production whereby he is invested with the sole and exclusive privileges of reproducing and selling copies of his work, Neighboring rights in Nigeria encompasses the rights and protections granted to performers, record labels, and other rights’ owners associated with the commercial exploitation of sound recordings.

FOOTNOTES:

[1] Paul Marett, Intellectual Property Law, London: Sweet & Maxwell (1996).

[2] David I Bainbridge, Intellectual Property (Sixth Edition) Pearson Education Limited (2007).

[3] Blackeney, M. (2008). Guidebook on enforcement of intellectual property rights. Queen Mary Intellectual Research Institute, University of London. Retrieved from https://www.academia.edu/1185442/Guidebook_on_Intellectual_Property_Enforcement

[4] Section 14 of the Copyright Act 2022 provides for Author’s moral rights.

[5] Section 108 Interpretation Section.

[6] Babafemi, F. O. (2007) Intellectual property: the law and practice of copyright,trade marks, patents and industrial design in Nigeria. Ibadan, Justinian Books Limited.

[7] Umaru, M. J. (2002). Nature, subsistence and scope of copyright in Nigeria. In J.O. Asein & E.S. Nwauche (Eds.), A decade of copyright law Nigeria

[8] https://www.kashishworld.com/blog/what-are-neighbouring-rights/amp/