- INTRODUCTION
Copyright has been in existence before the inception of printing technology and also predates the world's first true Copyright Act, the Statute of Anne.1 The Copyright Act of 1709, was the first Act to explicitly recognize the legal right of authorship in a book, but it was only limited to printing and reprinting of books not owned by colleges and universities. This was remedied by the Copyright Act of 1755, which granted perpetual copyright to copies owned by colleges and universities, such as colleges of Eton, Westminster, and Winchester, as well as the Universities of Oxford and Cambridge.2 Also, the enactment of the Copyright Act of 1911 brought about significant modifications to the United Kingdom's copyright laws.3
The first indigenous Copyright Act in Nigeria was the 1970 Copyright Act. The Act was passed as a decree on 24th day of December 1970 under the then General Gowon military administration.4 Up until 1970, copyright infringement in Nigeria was regulated by the English Copyright Act of 1911.5 This Act was applied to Nigeria through an order-in-council,6 which was issued pursuant to Section 25 of the Copyright Act of 1911 (Great Britain).7 Protection was granted generally under the Copyright Act of 1911 for 50 years following the death of an author.8
Later, Nigeria introduced the 1988 Copyright Act, which was embodied in the 2004 collection of the Laws of the Federation. The Act established the Nigerian Copyright Commission9 and extended the protection for Copyright in literary, musical or artistic works (excluding photographs), for a period of 70 years after the end of the year in which the author dies, in the case of cinematography, films, and photographs, the copyright lasted for a period of 50 years after the end of the year in which the work was first published, and in the case of sound recordings, the copyright was given for a period of 50 years after the end of the year in which the recording was first made.10 The 1988 Copyright Act was amended in 1992 and 1999, respectively, before the enactment of the Copyright Act of 2022.11
Moral rights originated from the European tradition of protecting the integrity and reputation of creators. They were first recognized in France and Germany before they were included in the Berne Convention for the protection of Literary and Artistic Works in 1928.12 The goal of moral rights is to regulate the right of authors by giving them the ability to be recognized, be granted paternity, and be protected from derogation.13 These rights can be perpetual, or be granted for the author's lifetime, depending on the jurisdiction.
This article addresses Copyright, moral rights and the position of moral rights following the demise of an author in Nigeria and some other jurisdictions.
- DEFINITION AND SCOPE OF COPYRIGHT AND MORAL RIGHTS
2.1 Copyright
The term "Copyright" was not expressly defined in the Copyright Act of 2022.14 Copyright (or author's right) is a legal term used to describe the exclusive rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.15 However, there are conditions that must be fulfilled in order for copyright to exist in an author's work.16 First and foremost, some effort must have been expended to make the work original.17 The second requirement is that the work must be captured in a fixed medium of expression.18
The basic framework of Nigeria's copyright law is the Copyright Act 2022. Sections 9 – 13 of the Copyright Act provides that subject to certain statutory exceptions, Copyright in a work such as literary or musical works, artistic works, audiovisual works, sound recordings, and broadcast is the exclusive right to control the doing of certain specified acts in respect of such works, either in their original form or in any form recognizably derived from the original.19
The right to make copies of an intellectual work and distribute them inheres in the owner/holder of a copyright. The primary goal of this area of Intellectual property is to prevent people from taking advantage of someone's labour, ability, or product without authorisation. It acknowledges that writers and authors should be able to enjoy the ownership of their creations for a considerable time to allow for the extraction of adequate commercial benefits relative to the creative efforts and other investments of an author.20 In some cases, the protection period lasts for seventy (70) years after the death of the author of the work.21 Therefore, if a person performs one of the acts/works over which an author enjoys exclusive rights without the permission or license of the author during the subsistence of the period of protection, the copyright owner can sue for infringement of copyright. The available remedies include, damages, injunction, delivery-up, account of profits and conversion rights, except such act falls under the category of exceptions for use of a copyright work for example, fair dealing etc., as provided by law. 22
2.2 Moral rightMoral rights are rights that are intended to prevent interlopers from claiming authorship of a work that they have not written and to safeguard the honor and reputation of the creator of that work.23 Although, the protection of moral rights is a matter of national law, the most important international reference for moral rights is the Berne Convention for the protection of Literary and Artistic Works.24 However, provision for the protection of moral rights as contained in the Berne Convention was not incorporated into the TRIPS25 Agreement by reference. The TRIPS agreement required that with the exception of the provisions of the Berne Convention on moral rights, the substantive provisions of the Paris Convention for the Protection of Industrial Property (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) must be complied with by the World Trade Organisation (WTO) member states.26
In contrast to economic rights, moral rights seek to protect creators' non-commercial and personal interest in their works, by drawing attention to other important non-economic rights such as: the paternity rights, rights of integrity, rights of attribution, rights of divulgation, etc.27 These rights acknowledge the unique bond that artists have with their works and the right to decide how they are utilized and exhibited to the general public.28
Moral rights guarantee that an author's work is properly attributed whenever it is utilized, with the exception of situations in which it is inadvertently or incidentally used to report current events in a broadcast.29 For example, a novelist has the moral right to be identified as the work's author and to stop others from stealing or manipulating that work of authorship.
Furthermore, authors' rights prevent their works from being altered in a way that would be disrespectful or detrimental to their honor or reputation.30 A novelist, for instance, can object to any unauthorized changes, mutilations, or adaptations of their book that would alter its meaning or message or that will be detrimental to his/her character and societal recognition.
In a notable incident involving Dotun Popoola and Obafemi Awolowo University, on September 3, 2018, the university faced potential legal action from the international sculptor and former student.31 Popoola, who had created a sculpture of Nobel laureate Professor Wole Soyinka as his final year project, threatened to claim damages of N200 million against the institution. The university had altered the artwork by removing its head, the artist's signature, and the execution date, relocating it to a prominent spot within a newly constructed museum dedicated to the renowned Nobel laureate.32 In response to accusations of rights infringement and alteration of his artwork, a lecturer from the institution reportedly stated that the "student has no right again over his project after he has left the school because he has been given the award, which is the certificate. The project is what he submitted to get the certificate."33
According to Section 1 of the Copyright Act of 1988, the sculpture created by the Artist in this instance qualified for copyright protection under Nigerian law. This is because the work involved sufficient effort to impart it with originality, and it had been fixed in a tangible medium through which it could be perceived.
Under Section 10 of the Copyright Act of 1988, the initial right of ownership of copyright in an artistic work belongs to the author. Section 51 of the Act defines "author" in relation to literary, artistic, or musical works as the creator of the work. It's important to distinguish between authorship rights and copyright in an artistic work. While copyright can be transferred or contracted away from the initial owner, authorship rights remain inseparable and perpetual.34 The author must always be acknowledged as the creator of the work, and these moral rights are inalienable and cannot be extinguished.35
Based on the wording of the above Section 12, it logically follows that the right to object to distortion of an artistic work inherently requires obtaining the Artist's consent beforehand. Failing to secure the artist's consent prior to altering their work constitutes grounds for seeking recourse under Section 12.
Therefore, the actions of the Obafemi Awolowo University's in altering the Artist's work, specifically removing his signature that recognises him as the author of the work, constitutes a clear and blatant violation of his authorship rights protected under the 1988 Copyright Act. It is undeniable that the Artist has a legal basis to pursue action against the institution.
- DOES MORAL RIGHT END WHEN THE AUTHOR DIES?
3.1 Nigeria
Before the enactment of the Copyright Act 2022, which repealed the Copyright Act 1988,36 moral rights in copyrightable works were perpetual, inalienable, and imprescriptible.37 Therefore, moral rights were not transmissible during the lifetime nor transferable at the death of the author either by testamentary disposition or by operation of law.
Pursuant to Section 14 Copyright Act 2022, Nigeria unlike the United States of America, makes specific provisions for the moral rights of the author. The section provides for extension of moral right protection to works of authors in literary, musical, artistic works, and audiovisuals.38 Therefore, once a work is qualified to be copyrightable, the moral rights become automatically vested in the author, and are not transmissible during the life of the author.39 However, the moral rights in the copyrightable works can be transmissible by testamentary disposition or by operation of law upon the death of an author.40 Section 14 (4) Copyright Act 2022 provides that moral rights in a copyrighted work shall subsist for the duration of the copyright in the work. As a result, the author's right of paternity and integrity in his/her work will expire when the copyright in such work expires. This can be seen as the continued reputation an author receives for his work will still be preserved even after death, and may be enforced by the owners of the copyright (obtained by testamentary disposition or operation of law), provided the copyright in the work has not expired.41
3.2 United States of America
The United States of America does not have specified provision(s) in the Copyright Act 1976 (USA CA) for the protection of moral rights in the country.42 The United States approaches the concept of moral rights in a more constrained manner. Although the United States' copyright law offers strong protection for economic rights like reproduction, public display and performance, adaptation, and distribution, it does not specifically acknowledge moral rights. Thus, the lack of moral rights in American law has given rise to discussions and disagreements, regarding situations with authors who might want to preserve the integrity of their creations.43 Therefore, in order to preserve the integrity of their works, creators might have to turn to alternative legal tactics. This could entail negotiating contracts or pursuing legal remedies under several legal doctrines similar to the protection which moral rights are designed to achieve, such as discouraging unfair competition.44 These legal doctrines include subscribing to the Berne Convention 1886, and enactment of the Visual Artists Rights Act (VARA) 1990.45
The United States did not ratify the Berne Convention until 1988. This is explained by the apparent conflict between Article 6bis of the Berne Convention and Article 1, Section 8, Clause 8 of the United States Constitution, which gives the US Congress the authority "To promote the Progress of Science and useful Arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Nevertheless, in order to benefit from the global protection of the labour of its citizens based on the national treatment principle and with the trajectory of negotiations leading up to the WTO-TRIPS Agreement in 1994/95, the United States was compelled to sign the Berne Convention.46
Under the Berne Convention, moral rights are inalienable,47 and protection of moral rights in the work of an author must be granted until the expiration of the 50th year after the author's death. There are, however, exceptions to this general rule. In the case of anonymous or pseudonymous works, the term of protection expires 50 years after the work has been lawfully made available to the public, except if the alleged pseudonymous work leaves no doubt as to the author's identity or if the author discloses his or her identity during the protection period, in which case, the general rule applies. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public (i.e., "release"). In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work.48
The Visual Artists Rights Act (VARA),49 which gives writers of visual art such as paintings, sculptures, and photographs moral rights, was the first piece of legislation to acknowledge moral rights in the US in 1990. However, VARA only applies to the right of attribution (paternity) and the right of integrity. Furthermore, VARA does not confer moral rights on writers after their death; rather, it permits authors to waive their moral rights through a written document.50
Moral rights are waivable (in writing) under VARA but not transferable by license or assignment. The right ends with the author's death, unlike economic rights, which continue for 70 years after the death of the author.51
- CONCLUSION
The Objective of Moral rights is to recognise the deeper connections between authors and their creations beyond economic benefits and thus to regulate the rights of authors to control the use and dissemination of their works through the right of attribution, paternity and non- derogation. These non-economic rights may either exist for the lifetime of the author or for the duration of the work of the author depending on the jurisdiction.
Under the Nigerian Copyright law, moral rights are no longer perpetual, as they only last for the duration of copyright in a work. Therefore, moral rights do not end upon the death of an author, but at the end of the period of copyright protection.
Under the 1988 Act, it was not clear whether moral rights could be waived by the author because moral rights were 'perpetual, inalienable, and imprescriptible'. Therefore, the moral right of authorship in a work does not seem to voluntarily permit the waiver of their moral rights. The Copyright Act of 2022, does not retain the stipulation that moral rights are 'perpetual, inalienable, and imprescriptible', but only provides that the rights shall be transmissible upon the death of an author by testamentary disposition or by operation of law. Therefore, this provision seems to permit authors to voluntarily waive their moral rights as there are no limitations to the alienability of copyrighted works. Nevertheless, the Copyright Act 2022 stipulates that the moral right in a work is only transmissible at the demise of the author, either by testamentary disposition or by operation of law. Thus, the moral right of a work is no longer perpetual and it can be perceived to be relinquishable by an author, but only upon the death of such author.
Footnotes
1 Also known as Copyright Act 1709, available at https://case.edu/affil/sce/authorship/statueofanne.pdf accessed 7th June 2024.
2 Chudi. C. Nwabachili, Intellectual Property Law and Practice in Nigeria, Malthouse Press Limited, 2016 at p. 12.
3 Ibid.
4 O. F. Babafemi, Intellectual Property: The Law and Practice of Copyright, Trade Marks, Patents and Industrial Designs in Nigeria (Justinian Books, 2006) at p.5.
5 Isochukwu Ltd, "A Brief History of Copyright Law", available at https://isochukwu.com/2018/06/19/a-brief-history-of-copyright-law/ accessed 17th May 2024.
6 No. 912 of June 29 1912.
7 See the Copyright Act of 1911 available at https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/enacted accessed 17th May 2024.
8 Isochukwu Ltd, "A Brief History of Copyright Law", available at https://isochukwu.com/2018/06/19/a-brief-history-of-copyright-law/ accessed 17th May 2024.
9 Section 34 of the Copyright Act 1988.
10 Paragraph 1 of the First Schedule of the Copyright Act 1988.
11 Copyright Act of 2022 (Act No. 8 of 2022) available at https://www.wipo.int/wipolex/en/legislation/details/21820 accessed 7th June 2024.
12 Cyrill. P. Rigamonti, Deconstructing Moral Right, Harvard International Law Journal 47, Summer 2006, available at https://web.archive.org/web/20200220020621id_/https://boris.unibe.ch/69876/1/Rigamonti_47HarvILJ353.pdf accessed 22nd May 2024.
13 See Carter v Helmsley-Spear, Inc 71 F.3d 77 (2d Cir. 1995).
14 Section 108 Copyright Act 2022.
15 WIPO, 'Copyright" available at https://www.wipo.int/copyright/en/ accessed 22nd May 2024.
16 Emmanuel Kelson, "Ownership of Copyright Under The New Copyright Act - The Standpoint of An Employee and Independent Contractor" available at https://spaajibade.com/ownership-of-copyright-under-the-new-copyright-act-the-standpoint-of-an-employee-and-independent-contractor/#_ftn4 accessed 8th June 2024.
17 Section 2 (2) (a) copyright Act 2022. In the case of Yeni Anikulapo-Kuti & Ors. v. Iseli & Ors. [2003-2007] I.P.L.R. 53 - 73, the court held that special skill and labour must have been expended on the work by the author, and such work is not copied from another author.
18 Section 2 (2) (b) copyright Act 2022. This entails that when an idea is fixed in a particular medium (writing, recording), copyright automatically subsist in such work. In the case of Yeni Anikulapo-Kuti & Ors. v. Iseli & Ors. [2003-2007] I.P.L.R. 53 - 73, the court held that as far as the author of a work had written down the lyrics to a song, and had tapes recorded, the works had satisfied the requirement of fixation, and as such, copyright subsisted in the work.
19 Section 9,10,11,12, and 13 of the Copyright Act 2022.
20 NOUN, "Laws of Intellectual Property I" available at https://nou.edu.ng/coursewarecontent/LAW%20435%20-%20LAW%20OF%20INTELLECTUAL%20PROPERTY%20I.%20for%20upload.pdf accessed 8th June 2024
21 Section 19 of the Copyright Act 2022.
22 Section 20 of the Copyright Act 2022.
23 Legal Ideas Forum, "What is Moral Right in Copyright" available at https://legalideasforum.com/what-is-moral-right-in-copyright.html accessed 22nd May 2024.
24 Article 6bis Berne Convention for the Protection of Literary and Artistic Works, available at https://www.unido.org/sites/default/files/2014-04/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works_28.09.1979_0.pdf accessed 22nd May 2024. It is universally understood as codifying the moral rights of attribution and integrity.
25 Trade-Related Aspects of Intellectual Property Rights 1995.
26 Article 9.1 of TRIPS Agreement 1995 provides that "...However, members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention (Berne Convention) of the rights derived therefrom". Therefore, the provision regarding moral rights was not incorporated into the TRIPS Agreement.
27 FasterCapital, "The Origins and Importance of Moral Rights" available at https://fastercapital.com/topics/the-origins-and-importance-of-moral-rights.html accessed 30th May 2024.
28 Ibid.
29 Ibid.
30 FasterCapital, "The Origins and Importance of Moral Rights" available at https://fastercapital.com/topics/the-origins-and-importance-of-moral-rights.html accessed 30th May, 2024.
31 See, Oliver Omoredia, "The Copyrights Act & OAU's Violation of Intellectual Property" available at https://www.academia.edu/37419949/THE_COPYRIGHTS_ACT_and_OAUS_VIOLATION_OF_INTELLECTUAL_PROPERTY_BY_OLIVER_OMOREDIA accessed 28th June 2024.
32 Ibid.
33 Ibid.
34 Section 12 (2) Copyright Act 1988.
35 The Copyright Act of 2022 has altered the stance that moral rights are 'perpetual, inalienable and imprescriptible'.
36 Copyright Act Cap C28, Laws of Federation 2004.
37 Section 12 (2) Copyright Act 1988.
38 Section 14 (1) of the Copyright Act 2022.
39 Section 14 (3) (a) of the Copyright Act 2022, provides that Moral rights shall "not be transmissible during the life of the author...".
40 Section 14 (3) (b) of the Copyright Act 2022, provides that upon the death of the author, moral right can be transmissible by testamentary disposition or by operation of law.
41 Section 14 (4) of the Copyright Act 2022, entails that Moral right in a work is not perpetual. Moral right subsists in a work only for the duration of the copyright in the work.
42 U.S. Copyright Act of 1976 available at https://www.wipo.int/wipolex/en/legislation/details/16604 accessed 8th June 2024.
43 See, FasterCapital, "The Origins and Importance of Moral Rights" available at https://fastercapital.com/topics/the-origins-and-importance-of-moral-rights.html accessed 5th June 2024.
44 Ibid.
45 Visual Artists Rights Act 1990 available at http://136.145.223.14/images/pdf/Inv_Vara_1990_EN.pdf accessed 8th June 2024.
46 See, Elizabeth Schere, "Where is the Morality? Moral Rights in International Intellectual Property and Trade Law" Fordham International Law Journal, (Vol 41. 2018). p. 778.
47 See, Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works 1886.
48 See, Article 7 of the Berne Convention for the Protection of Literary and Artistic Works 1886.
49 See, 17 U.S.C. §106A.
50 See, FasterCapital, "The Origins and Importance of Moral Rights" available at https://fastercapital.com/topics/the-origins-and-importance-of-moral-rights.html accessed 5th June 2024.
51 See, 17 U.S.C. §106A (d).
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