Artist and illustrator Yas Imamura on seeing her art for sale on unauthorized products online said "it felt like my heart was being ripped out".1 This represents the exact purpose the different laws and acts on intellectual property seeks to protect. The creation of any original idea, work, art, design, or any product at all imposes a right of ownership on the creator. It is as natural as the process of the creation of the work itself. These creations are referred to as Intellectual Property. There are several ambits under the broad terminology of Intellectual Property, some of which are, Copyright, Trademark, Design and Patent.
These rights as stated above represent the different areas of protection afforded under the Nigerian regime. These rights are defined and regulated by several statutes and regulations, some of which are Copyright Act2 the Patents and Designs Act3, and the Trademarks Act,4 among others. To serve as a better board for providing a distinction between the different protections, we would provide a brief insight into each protection.
Copyright is defined 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" 5
The discuss as to what copyright entails begins with the creation of an original work. The creation of an original work automatically places ownership rights to the creator of the work. These rights extend to the right to reproduce the work, prepare derivative works, distribute copies, perform, and display the work publicly and other rights. The holder of this right may choose to transfer and assign his right whether collectively or to one or more persons. It is important to note that the protection Copyright offers extends to the expression of the idea in a tangible form and not just the creator's idea. Artistic works like novels, music, movies, photographs, paintings, and many more are covered under Copyright laws.
A trademark is a specific, distinctive sign or indicator used by a business, individual, or any other legal entity in order to set apart their products and services for the purpose of ease of identification. The essence of a trademark is to distinguish the product or service from other existing products or service similar or otherwise.6 A trademark could be in the following formats, either a name, word, phrase, logo, symbol, design, image, or a joint combination of these elements.
Design as an intellectual property is concerned with the appearance of articles and not the article themselves. The appearance of things essentially forms the basis for Design as an intellectual property. The word design has been defined to mean:
"Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be 159 used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result"7
Distinguishing between Copyright, Design and Trademark
- Copyright laws involve the protection of artistic works like novels, music, movies, photographs, paintings, while Trademark entails the protection of a name, word, phrase, logo, symbol, design, image, or a joint combination of these elements and Design seeks to protect the appearance of a product or article.
- Copyright may very well overlap with Trademark in regards to materials or artistic elements which may qualify to be protected under both the Copyright and Trademark Laws. However, they still maintain fundamental differences. Design is solely concerned with the appearance of products.
- Copyright protects original expression of ideas; Trademarks protect elements of branding while Design protects the distinctive distinguishing appearance of products.
- Copyright provides the right to control the reproduction, making of derivative works, distribution and public performance and display of the copyrighted works. Trademark provides the right to use the mark and to prevent others from using similar marks in a way that would result in a confusion with regards to the origin of the goods or services. Whereas, the law of design provides for the protection of the appearance of a product as to also safeguard the origin of the goods.
In summary, the law of intellectual property in its forms of copyright, design and trademarks seeks to protect original ideas and the goodwill attributed to products and services. The modern market space would not exist without this important area of the law and there would be little or no incentive for the creation of new ideas.
1. Alexander Webb, 'The Difference Between Copyrights, Trademarks and Patent' (New York, 1 May 2009) accessed 16 April 2020
2. Cap C 28 Laws of the Federation of Nigeria 2004.
3. Cap P2 Laws of the Federation of Nigeria 2004.
4. Cap T13 Laws of the Federation of Nigeria 2004.
5. Ekpo M.F., Director General Nigerian Copyright Commission (May 1997)
6. David I Bainbridge, Intellectual Property (Sixth Edition) Pearson Education Limited (2007).
7. Section 12, Patent and Design Act
Originally Published 15 June 2021
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.