The use of pseudonyms is a long-standing custom employed, among other things, to maintain anonymity and privacy of authors. Pseudonyms, informally referred to as "pen names", are false names adopted by authors to conceal their identity from the public. While pseudonymous works are published under assumed identities, an anonymous work is of unknown or uncertain authorship. Nicknames and other diminutive forms of legal names are not considered fictitious.1 Although, pen names do not enjoy copyright protection, they can be registered as trademarks, subject to local statutory requirements.
Within the boundaries of international law and subject to certain exceptions, every original creative and intellectual content fixed in any tangible medium of expression is automatically entitled to copyright protection, even if the identity of the author is false or withheld. According to Article 15(1) of the Berne Convention for the Protection of Literary and Artistic Works,2 the presumption of authorship applies in favour of the person whose name appears on the work, provided that where such name is a pseudonym, it must be one that leaves no doubt to the author's identity.3 In essence, when a pseudonym is adopted by which an author is not commonly known, or which gives rise to doubt as to the author's identity, the presumption would not apply.4 In the case of anonymous and pseudonymous works, other than those referred to above, the publisher whose name appears on the work is deemed to represent the author and is entitled to protect and enforce the author's rights in that capacity.5 However, this assumption ceases to apply when the author reveals his identity and establishes his claim to authorship of the work.6
However, the nature of copyright protection accorded to pseudonymous works is slightly different from that of a conventional copyright. For instance, the use of a pseudonym can impact the term of copyright protection.7 Works published under a pseudonym are granted fifty years of copyright protection from the date of publication.8 However, where the alias adopted by the author leaves no doubt as to the author's identity or the author discloses his true identity during the initial fifty-year coverage, the term of protection is the lifetime of the author and fifty years from the year after the author's demise.9 Ratifying countries are not required to protect pseudonymous works if the author can be reasonably presumed to have been dead for fifty years. It is apparent that the use of pseudonyms has been acknowledged under international copyright law. Against this background, this article examines the legal ramifications of publishing intellectual property under a false persona in Nigeria, the United Kingdom, and the United States of America (all signatories to the Berne Convention) and highlights the need for a definite protective framework in Nigeria.
- Protection of Pseudonymous Works under the Nigerian Copyright Regime
In Nigeria, copyright protection is conferred on every original work10 if the author is a citizen of or domiciled in Nigeria at the time of publication.11 Under the Copyright Act,12 ("the Act") original literary, musical or artistic works are protected for the lifetime of the author and 70 (seventy) years after the death of the author or last surviving author in the case of joint ownership while Cinematograph films, photographs, broadcasts and sound recordings are protected for fifty years from the end of the year of first publication.13 For pseudonymous works, copyright protection subsists for seventy (70) years from the end of the year after the work was first published. If the author's identity "becomes known", the normal term is granted automatically as though the work was never published pseudonymously.14 The Act neither explains what amounts to disclosure of identity nor when the identity of an author is deemed to have been disclosed.
Generally, moral rights give creators the perpetual and inalienable right to claim authorship of their work, particularly in connection with any of their exclusive economic rights,15 even if they choose to publish under an alias. When a work is published under an alias or a pen name, authorship is attributed to the author's assumed name/identity. By virtue of Section 12 of the Act, authors are entitled to seek legal redress to preserve the integrity of their intellectual property rights against distortion, unauthorised modification, or derogatory use.
In addition, the principle of first ownership of copyright is equally applicable to pseudonymous works.16 Unless otherwise stipulated by a written agreement, the author is the default owner of copyright in works created in the course of employment or commissioned works.17 The author is also at liberty to transfer total or partial rights in the protected work to the commissioning party. However, pseudonymous authors may have trouble proving copyright ownership under this arrangement, if necessary legal precautions are not taken. In such instances, both parties (employer/commissioner and employee/independent contractor) are advised to execute an agreement defining the terms of the arrangement.
Although copyright vests in any original work by virtue of its creation and fixation in a definite medium and without complying with any registration requirements,18 recording the copyright particulars on the Nigerian Copyright Commission (NCC) database is prima facie evidence of ownership and secures the owner's (including heirs and successors-in-title) priority of interest, right to enforce economic rights or to claim damages for infringement.19 The Nigerian Copyright Commission operates a voluntary copyright notification scheme. Thus, the author/owner assumes responsibility for lodging their interest.20 Only the owner of a valid copyright can successfully bring an action for copyright infringement.
However, there are no specific legal or procedural requirements for formal registration of copyright ownership in pseudonymous works in Nigeria.21 Recordation of copyright ownership under the Nigerian Copyright e-Registration System ("NCeRS"), administered by the NCC, requires the disclosure of the author's legal name and personal information (even when the copyright belongs to another) which can be accessed by the public.22 Once the identity of the author is declared it is deemed to have been disclosed, and the duration of copyright protection shall be calculated from the year of his death.
- Protection of Pseudonymous Works under the United Kingdom Copyright Regime
In the United Kingdom ("UK"), copyright protection requires no formal registration as it is considered an automatic right. Thus, intellectual property is automatically protected as soon as it is fixed in material form. According to Section 57 of the Copyright, Designs and Patents Act 1988 ("CDPA"), copyright in a literary, dramatic, musical, or artistic work is not infringed by an act done where it is impossible by reasonable inquiry to ascertain the identity of the author. Given the absence of a copyright registry, it is difficult to ascertain what amounts to reasonable inquiry and even more so to determine the author's identity, especially if the work is self-published.
Under the CDPA, copyright ownership is based on how the work is credited. Section 104(2) of the CDPA provides that the person whose name appears on the work when first published is, unless proven otherwise, the supposed author of the work. While s.104(2) makes no direct reference to the use of pseudonyms, it is inferred from the Berne Convention that the presumption of authorship and first ownership is triggered if the alias is a reliable and well-known substitute for the author's name. If the pseudonym leaves doubt as to the author's identity, the work would be regarded as anonymous and copyright ownership would be attributed to the publisher.23 However, this is merely a presumption; it will not apply in the face of evidence or proof of ownership attributed to the author of the work or elsewhere.24
Based on the foregoing, it appears that in the United Kingdom works published under an assumed identity will only be granted protection if it is a name by which the author is commonly known.
- Protection of Pseudonymous Works under the United States Copyright Regime
By the US Copyright Act 1976, copyright in pseudonymous works created after 1st January 1978 endures for 95 (ninety-five) years from the year of first publication or 120 (one hundred and twenty) years from the year of creation, whichever expires first. If a work is credited as pseudonymous, the US law allows the option of omitting the author's legal name, birth year, and death year (if published posthumously) on the copyright registration.25 The Compendium of U.S. Copyright Office Practices sets out the requirements and procedure for obtaining copyright protection for pseudonymous works.26
It is important to note that registration records are open to the public. Thus, the author's personal information should not be disclosed in an application for registration of a pseudonymous work if the author does not wish to make the information public. The Copyright Office will not remove the author's name from the registration records once a certificate has been issued.
Supplementary registration allows the author to add their real name to registration records, where the work was originally pseudonymous. A certificate of supplementary registration will be issued to this effect. However, providing the author's real name creates a clear record of authorship and ownership of the copyright and may affect the term of protection. Authors who take care to comply with legal registration requirements, register their names with the copyright office.
Although, copyright protection is available to pseudonymous works in various countries, the lack of judicial authorities addressing the issues associated with the use and protection of pseudonyms has resulted in the questionable legal stance on the protection of copyrighted pseudonymous works. While authors can elect to use a pseudonym in place of their legal name, it is important to note that publishing under a fictitious name has several drawbacks which are addressed below.
Despite the recognition accorded to pseudonymous works in the Copyright Act, the Nigerian Copyright Commission requires applicants to provide the author's legal names. Although some jurisdictions have stronger laws to protect intellectual property created under a false persona, prospective authors should keep in mind that copyright is territorial, meaning that it only gives protection in the countries where it is granted or registered. To protect pseudonymous works outside the country of origin, the owner may have to meet certain conditions such as republication and sale of the work, especially in jurisdictions without reciprocal copyright protection regime.
Notwithstanding that authorship is attributed to the person whose name appears on the work, the law does not extend legal personality to an alias. Business transactions involving the copyrighted property may be more complex, as contracting parties may raise questions about the copyright ownership.27 Also, in the event of a dispute and the absence of overwhelming evidence, the author who intends to retain copyright ownership, must prove that both his legal name and pseudonym belong to the same person.
To ensure that their identity is kept confidential, publishing contracts are usually signed in the author's actual name. While a pen name shields the author from public scrutiny, it provides no shield against a lawsuit. Consequently, the author might be forced to disclose their identity to a plaintiff claiming legal necessity. Conversely, authors pursuing damages for infringement of their copyright might have to reveal their legal names as the law does not extend legal personality to a pen name or an alias.
These highlighted drawbacks are likely to affect the moral and economic rights of authors of pseudonymous works and certain safeguards should be adopted to forestall probable infringement and ensure adequate protection.
To scale these hurdles, the article puts forward the following recommendations. Authors publishing under a professional name should have physical evidence of authorship. The more tangible the proof of authorship, the higher the likelihood of a favourable presumption of authorship in the event of a dispute.28
Creators seeking to ensure anonymity may consider adding a layer of privacy by using pseudonyms connected to corporate entities or business ventures. By this arrangement, the author can publish under a pen name and transfer copyright ownership to a wholly owned corporate entity or business enterprise. By doing so, the author can protect his identity and shield his copyright under the name of his business.
In addition, creatives are advised to explore the option of registering a domain name or creating a website under their pen name to secure their identity online. In the event of licensing and exploiting the protected work, the author may also require business affiliates to sign non-disclosure agreements.
In conclusion, this article proposes that the anticipated Nigerian Copyright (Repeal) Bill 2015, should incorporate specific provisions on the protection of pseudonymous authors and their creations as well as mechanisms for legal recourse. Authors intending to release works under fictitious identities are strongly advised to consult an intellectual property legal practitioner to assist with securing rights to their pseudonymous works.
* Oluwademilade Odutola, Associate, Corporate Finance and Capital Market Department, S.P.A. Ajibade & Co., Lagos, Nigeria.
1. See "Copyright FAQ: What If I Want to Use a Pseudonym?" available at https://www.hg.org/legal-articles/copyright-faq-what-if-i-want-to-use-a-pseudonym-31454 accessed on 15th March 2022.
2. Berne Convention for the Protection of Literary and Artistic Works, 1886.
3. Article 5 of the Berne Convention for the Protection of Literary and Artistic Works, 1886.
4. Ronan Deazley and Kerry Patterson, "Copyright In Pseudonymous And Anonymous Works" available at https://www.digitisingmorgan.org/uploads/BN3-pseudonymous%20works_DigiMorgan.pdf accessed on 15th March 2022.
5. Article 15(3) of the Berne Convention for the Protection of Literary and Artistic Works, 1886.
7. Ashima Obhan & Sumathi Chandrashekaran, "Protecting Pseudonymous Works" available at https://www.mondaq.com/india/copyright/827704/protecting-pseudonymous-works accessed on 15th March 2022.
8. Article 7(3), Berne Convention for the Protection of Literary and Artistic Works, 1886.
9. Article 7.3, Berne Convention for the Protection of Literary and Artistic Works, 1886.
10. The six categories of works that are eligible for copyright protection are literary works, musical works, artistic works, cinematograph films, sound recording and broadcasts.
11. Section 2(1)a, Copyright Act, Cap C28, Laws of the Federation of Nigeria (LFN), 2004.
12. Copyright Act, Cap C28, LFN 2004.
13. First Schedule to the Copyright Act, Cap C28, LFN 2004.
14. Section 2(3), Copyright Act, Cap C28, LFN 2004.
15. Economic rights give the copyright holder absolute control of the exploitation of their work for financial gain. It includes the right to reproduction, performance, distribution, adaptation, and display. While economic rights are alienable, moral rights are inalienable.
16. Section 10, Copyright Act, Cap C28, LFN 2004.
17. In the absence of any agreement to the contrary, copyright in literary, artistic, or musical works created by employees at newspapers, magazines, or similar periodicals vest in the employer strictly for the purpose of publication in any newspaper, magazine, or similar periodical, or for the reproduction of the work for the purpose of publication. In all other respect, ownership is vested in the employee in the first instance.
18. See Cynthia Njoku and Maryam Abdulsalam, "Is Registration of Copyright a requirement for proving infringement? A Critical Analysis of the Ruling of the Federal High Court in the case of Paul Allen Oche V. Nigerian Breweries Plc. & 3 Ors.", available at https://www.mondaq.com/nigeria/copyright/1124982/is-registration-of-copyright-a-requirement-for-proving-infringement-a-critical-analysis-of-the-ruling-of-the-federal-high-court-in-the-case-of-paul-allen-oche-v-nigerian-breweries-plc-3-ors accessed on 12th June 2022.
19. Copyright registration is not required but automatic, lodging a copyright with the Nigerian Copyright Commission is primarily for record and enforceability purposes.
20. See Sandra Eke, "Fundamental Elements Of Copyright Ownership And Protection Under Nigerian Law", available at https://spaajibade.com/fundamental-elements-of-copyright-ownership-and-protection-under-nigerian-law-sandra-eke/ accessed on 12th June 2022.
21. See n. 19 supra.
22. See "Author Information", Paragraph 3(3) of the Help Section of the Nigerian Copyright Commission website available at http://www.eregistration.copyright.gov.ng/ncc/help accessed on 12th June 2022.
23. Section 104(4), U.K. Copyright, Designs and Patents Act 1988. In such situations, ownership of the copyright in the work will depend on the pre-existing arrangement between the author and the publisher.
24. Ronan Deazley and Kerry Patterson, "Copyright In Pseudonymous And Anonymous Works" available at https://www.digitisingmorgan.org/uploads/BN3-pseudonymous%20works_ DigiMorgan .pdf accessed on 15th March 2022.
25. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 600.615 (3d Ed. 2021).
27. See "Copyright FAQ: What If I Want to Use a Pseudonym?" available at https://www.hg.org/legal-articles/copyright-faq-what-if-i-want-to-use-a-pseudonym-31454 accessed on the 23rd March 2022.
28. See Section 43, Copyright Act, Cap C28, LFN 2004.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.