For any literary or artistic work to be eligible for copyright, the work must be fixed in a definite medium of expression now known or later to be developed, from which it can be perceived reproduced or otherwise communicated either directly or with the aid of any machine or device.
As was graphically illustrated in the story of Emeka and Chike told in Saturday Breakfast of June 15, 2019, copyright does not protect ideas. For any work to enjoy copyright protection, the ideas must have been put into a tangible form. In other words, the work must be on paper, tape, disc, film, etc. As far back as 1938, in an old English case of Donoghue v. Allied Newspapers Ltd, Judge Farewell said, "this, at any rate, is clear beyond all questions that there is no copyright in an idea or in ideas".
In a much earlier case of Hollingrake v. Truswell, Lord Justice Lindley said, "copyright, however, does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied, the copyright is not infringed.
Why is it necessary for an idea to be fixed before it is eligible for copyright protection? Put differently, what will be the consequence if ideas were granted copyright protection? It seems clear that it will result to something close to legal anarchy because anyone will be free to lay claim to any ideas that meets his fancy and demand legal rights to such ideas. In what practical way can such a claim be disputed? If an idea is not required to be put in a tangible form, how can anyone say with certainty that the idea for the mega hit, Sweet Mother did not originate from this author instead of the late Prince Nico Mbarga?
Judge Farewell in Donoghue v. Allied Newspapers Ltd3, said that in order to obtain protection, an idea must be expressed in a definite medium because it ensures certainty in the subject matter and avoids injustice to the rest of the world.
Furthermore, it goes without saying that Equity does not protect the indolent. Anyone who wishes to enjoy some legal rights should be prepared to take some practical steps to enjoy such rights. Having an 'idea' is not enough to enjoy copyright protection, practical steps must be taken to write down, record or fix such an idea in a definite medium of expression.
In the case of Tate vs. Thomas, one Peterman conceived the idea for a play, "The Lads of the Village" and asked the three plaintiffs to compose the music and write the lyrics and dialogue. This they did to the satisfaction of Peterman who paid for the services of the plaintiffs. In an action for infringement, the defendant, Thomas claimed to have acquired the film rights from Peterman. Justice Eve however held that Peterman was neither the author nor a co-author of "The Lads of the Village" and had no copyright to assign. He only had an idea! The arrangement with the plaintiff only gave him the right to produce the play on stage as long as he made the agreed payments to the joint author.
Similarly, in 1983, this author produced the recording of a popular song in Nigeria titled "Baby Kilode?" performed by a young Nigerian singer, Dizzy K. Falola. Not long after the release of the record which received critical acclaim, another well- known Nigerian artiste, the late great Harry Mosco claimed that he had asked Dizzy K. Falola to write a song with the title, "Kilode" for him. In other words, he claimed that he had conceived the idea for Baby Kilode? and that his rights had been infringed. For weeks, there was sustained controversy over this development which almost torpedoed the success of the song as Dizzy K. Falola claimed that he had not infringed Harry Mosco's copyright as the copyright in "Baby Kilode" belonged to him. The controversy began to die down only when knowledgeable people in the music industry intervened and explained to Harry Mosco the legal maxim, there is no copyright in ideas.
Please tell anyone who cares to know, there is no copyright in ideas.
The foregoing, in my series of copyright lectures in "Saturday Breakfast", is adapted from my book, "Copyright & the New Millionaires" A hard copy of the book can be obtained at TOPS LTD, 8 Tokunbo Alli St, Off Toyin Street, Ikeja. You may also call Edith on 0803 849 6110. I hope you found the piece informative.
See you next week.
No comments:
Post a Comment