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Authorship and ownership of copyright

By Jamila Adaora Eyutchae

AUTHORSHIP refers to who made or created work. An author is a creator and original right holder. The author can be defined as the person to whom the work owes its origin and superintended the whole work. Farwell, J, in Donoghue V. Allied Newspaper Ltd said:

Copyright

A person may have a brilliant idea for a story or a picture, or for a play and one which appears to him to be original; but if he communicates that idea to an author or an artist or a playwright, the production which is the result of the communication of the idea to the author or the artist or the playwright is the copyright of the person who clothed the idea in form, whether by means of a picture, play, or a book, and the owner of the idea has no rights in that product.

An author can also be described as someone who contributes copyrightable expression to a work. The author includes heirs and successors in title. (Copyrights Act Cap C28 Sec 12).

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Ownership refers to who owns the work. As a general rule, the author is the first owner. This is, however, not always the case. These exceptions are:

* If a work is created by an employee in the course of his/her employment, the employee owns the copyright.

* If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be “made for hire”, the commissioning person or organisation owns the copyright only if the work is:

(i)A part of a larger literary work, such as an article in a magazine, or a poem or story in an anthology;

(ii) Part of a motion picture or other audio-visual works such as screenplay;

(iii)A translation;

(iv)  A supplementary work such as an Afterword, an Introduction, chart, editorial not bibliography, appendix or index; a compilation;

(v) An instructional text;

(vi A test or answer material for a test;

(vii)An Atlas (Fairuse.stanford.edu/overview/faqs).

Works that do not fall within any of these categories (1-7) constitute works made for hire only if created by an employee within the scope of his/her employment. If an author has sold the entire copyright, the purchasing person or persons becomes the copyright owner.

According to Copyright Act Cap C28, Laws of Federation of Nigeria 2004, the following are authors:

(i) Cinematograph Film: In this case, an author is a person by whom the arrangements for the making of the film were made, unless the parties to the making of the film have a contract that differs.

(ii) Literary, artistic/musical works: The author means the creator of the work.

(iii) Photographic works: In this case, the author means the person who took the photograph.

(iv) Broadcast: Author, in this case, means any person by whom the arrangements for the making of the transmission from within the country were undertaken.

(v) Sound recording: In this case, the author means the person by whom the arrangements for the making of the sound recording were made except there is a contract agreement to the contrary.

(vi) Sound recording of a musical work: Author means the artist in whose name the recording was made except there is a contract to the contrary.

Copyright ownership is not automatic under Nigerian Law. The Copyright Act Cap C28 Laws of the Federation of Nigeria 2004 states that Copyright ownership can only be claimed when the person is a citizen of Nigeria or domiciled in Nigeria or the work first published in Nigeria.

Sometimes ownership can be complicated. Issues arise because of collaboration. Such complications arise in circumstances such as these:

(i) Collaboration in an online networked environment

(ii) Creation from multimedia course materials

(iii) Collaboration on Textbooks

(iv) Tele courses and distance learning

(v) Music

(vi) Videos

In order to be joint authors of a work, each person must:

(i) Contribute copyrightable expression

(ii) Intend at the time the work is created that all contributors will be joint owners of the whole finished work.

According to Georgia K. Harper while writing in the COPYRIGHT CRASH COURSE: “The best way to start out joint ownership is through discussion and agreement at the start of the project”.

When two or more authors prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered joint copyright owners. The most common example of a joint work is when a book or article has two or more authors. However, if a book is written primarily by one author, but another author contributes a specific chapter to the book and is given credit for that chapter, then this probably wouldn’t be a joint work because the contributions aren’t inseparable or interdependent.

*COPYRIGHT AND COPYRIGHT INFRINGEMENT

Duration of copyright is not perpetual. Copyright subsists for a term of years before falling into what is known as the public domain. The terms of copyright duration under the Copyright Act Cap C28 Laws of Federation of Nigeria 2004 are as follows:

  1. Literary, musical or artistic works other than photographs: For works that fall under this category the term of expiration for copyright is 70 years after the end of the year in which the author died. If the author happens to be a government or a body corporate, 70 years after the end of the year in which the work was first published.
  2. Cinematography films and photographs: Fifty years after the end of the year in which the work was first published.
  3. Sound recordings: Fifty years after the year in which the recording was first published.
  4. Broadcasts: Fifty years after the end of the year in which the broadcast first took place.

What is meant by works in the public domain? Wikipedia defines it thus: “The public domain consists of all creative works to which no exclusive intellectual property rights apply. Those rights have expired, been forfeited, expressly waived or may be inapplicable”. The works of such classic masters such as William Shakespeare, Beethoven, etc., are some examples of works in the public domain. In this instance, nobody can claim any copyright on works in the Public domain.

What is Copyright Infringement? Copyright Infringement, as defined by Wikipedia, “is the use of works protected by copyright law without permission for a usage where such permission is required thereby infringing certain exclusive rights granted to the Copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works”.

Copyright Infringement, in summary, is a situation whereby a person or persons who without authorisation of a Copyright owner does or causes any of the acts specifically reserved for the owner.

(Copyright and fair use – Stanford University Libraries).

To be concluded

*Adora  Eyutchae is of the Public Affairs/Planning Research and Statistics Department, Nigerian Copyright Commission, Enugu Office. She  can be reached via Gennyjamila@yahoo.com

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