ALL THE GLORY GOES TO THE ALMIGHTY

I am humbled by what God has done with me.

I have written before that in the building of the copyright system in Nigeria, I have carried placards many times and led very risky demonstrations many-many times. On several occasions, I could easily have been shot by an "unknown soldier".

I have been seen in courts across the nation many-many times not over any private land dispute or any matrimonial cause. Indeed, I have been to court more times than many active litigation lawyers and witnessed against top corporations, governments and individuals time and time again. I have done this because in building a copyright culture, we must have court decisions that set the precedents and define the 'do's and 'don'ts.

I have gone many-many days without sleep, travelled lonely roads at dangerous hours, written opinion articles, delivered hundreds of lectures, organized myriad conferences, seminars and workshops, written a striking book on the subject because I believe that a significant contributor to the future of our nation will not be oil or gas. It will also not be buried in the soil. It will be the product of the minds of talented and brilliant young Nigerians. I verily believe that our greatest wealth and our future trading assets will be our intellectual property.

I congratulate our dear sister, the newly minted Director-General of the World Trade Organization, the very brilliant Dr. Ngozi Okonjo Iweala. Very soon she will find out that a lot of the battles between nations on trade will not be about oil or gas or shipping or steel. The new war zones are IT and IP - intellectual property.

I helped to construct PMAN. PMAN was one of Nigeria's strongest hot beds of brilliant ideas and deep thoughts. There was nothing we did without deep strategic thinking behind it. As I watch the kind of people currently engaged in what appears to be a death struggle, the banality of their fight to control the once great PMAN and the gutter language they splash all over the place, I am saddened. They clearly do not understand the reason behind the PMAN struggle. Permit me to ask: is the hunger in the land so bad that Nigeria has degenerated to the point where everything is about a meal ticket? In this case, I verily agree with the saying, 'nemo dat quod non habet'. You cannot give that which you do not have.

As you may know, I superintended over the building of an outstanding Nigerian institution called COSON which many said could never see the light of day. When the COSON House was commissioned nearly four years ago, a lot of people were surprised that there was not one Naira of government money in the magnificent building, no donor dollar from anywhere, no bank loan and no debt of any type. Thank God, the building continues to stand tall and to sparkle and many superb young Nigerians continue to work within it.

I have also written before that for close to eleven years, not one of the highly trained staff of COSON has received his or her salary one day late. No COSON member entitled to royalties was ever denied money due to him. Not until some meddlesome interlopers went to court behind our backs in a typical example of the famous Nigerian 'bad belle', to shut down the bank accounts of COSON. It might surprise many to know that no COSON member has ever paid any registration fee, monthly dues or subscription of any type yet every COSON member is entitled to some income every year. 

I also worked with others to construct the Nigerian Copyright Commission. With the help of great Nigerians like the recently departed Prince Tony Momoh, the unforgettable late Prof Vincent Chukwuemeka Ike and the living legend, Prince Bola Ajibola, the NCC was set up. I helped in writing the law creating the institution and with the unassailable Prof Egerton Uvieghara and Bayo Aiyegbusi, a straight- shooting public servant, drafted the first amendment to the law. Unfortunately, like several of Nigeria's badly led institutions, the NCC has left its main purpose and made the pursuit of Tony Okoroji its key objective.

My dedication to the intellectual property cause has never been because of a title or because of personal wealth. It is my way of serving the Almighty and my nation. That is the way I pay my tithe and praise the Lord.

Over and over again, I have been counted out by men who do not understand the concept of giving and of sacrifice. They have tried every which way to count me out. Each time they think they have finally succeeded, something new happens. They are confused and cannot understand why the good Lord has refused to count me out. I work for Him.

I have repeatedly emphasized that I drive on a full tank of faith. I serve a living God who by all measures is not finished with me. The work I do is to the glory of the Almighty. The power I use is not mine but His.

You might face trials upon trials like I have, but like Job, you will prevail. I advise that you do not worship men or money. Worship the Almighty and take care of the needs of His children. Do not fret about how you will survive. You will.

Please do not take credit for that which the Almighty does through you. It is not by your power. All glory and honour belong to Him. Drive on a full tank of faith with your tires pumped with love and do not listen to anyone who tells you that your dreams are impossible. The word, impossible, belongs to the devil.

See you next week.

EXCEPTIONS FROM COPYRIGHT CONTROL

In the last three weeks, we have examined the limits of copyright and established that while the owner of copyright has a large basket of exclusive rights, his rights are not limitless.  We have seen that in many cases, copyright does not last forever because of the terms of copyright in different works. There are also 19 exceptions from copyright control created by the second schedule to the Nigerian Copyright Act which also limit the exclusive rights of the owner of copyright.

Of the 19 exceptions, "fair dealing" appears to be one of the most misunderstood and most misused. The exception of 'fair dealing' is not a carte blanch exception. It is limited to use of the work in four clearly stated situations: research, private use, criticism and the review or reporting of current events. The exception of 'fair dealing' therefore will not protect a user against liability outside of the four mentioned situations. For instance, it is doubtful if the exception of fair dealing will protect a social club at the University of Lagos which holds a dance party at which gate fees are charged, unlicensed music is performed and unlicensed poetry is recited.

What exactly is fair dealing? The world famous jurist, Lord Denning in the English case of Hubbard v. Vosper tried to answer this question using a literary work context. He said: 

"It is impossible to define what is 'fair dealing'. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportion. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression the tribunal of fact must decide"

Fair dealing, which may be a successor to the earlier term, 'fair use' appears to be targeted at the promotion of research and learning, for the benefit of the entire society and not for private gain. This exception applies to all the six categories of works protected by copyright: literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts.

It must be repeated that any public use of a protected work, whether fair or unfair, which is not accompanied by an acknowledgment of the title of the work and its authorship is an infringement of the moral rights of the author and such infringement is actionable.

Apart from "fair dealing", where a protected work is used by way of parody, pastiche or caricature, it may not constitute an infringement of copyright. In other words, members of Nigeria's current sassy generation of stand-up comedians like Ali Baba, Basketmouth, Gbenga Adeyinka, Klint Da Drunk, Gordons, Lepacious Bose, Koffi Da Guru, Okey Bakassi, Mandi Uzonicha, I Go Die, A.Y., Julius Agwu, etc., who use bits and pieces of protected songs in their rib cracking jokes may not have too much to worry about. Their hilarious acts may indeed qualify as exceptions from copyright control.

It is also not an infringement of copyright if an artistic work situated in a place where it can be viewed by the public, is included in a cinematograph film or broadcast.

For instance, if Mr. Prolific, the recently departed Chico Ejiro, while shooting a movie on the Lagos Marina, included Ben Enwonwu's great sculptural work "Sango" situated in front of the NEPA building in his movie, would he have infringed copyright? "Sango" is situated in a place where the public can view it and if the public is already free to view the work, no harm is really done by including it in a movie.

Similarly, it is not an infringement to reproduce or distribute copies of any artistic work permanently situated in a place where it can be viewed by the public.

My favorite photographer is a guy based in Ekiti, known as Femi Adagunodo. Femi is an incredibly gifted sharpshooter with eagle eyes.. What if Femi took a photograph of Ben Enwonwu's "Sango" and decided to produce post cards with the photograph for distribution or sale, it is doubtful if any action for infringement of copyright can be sustained against Femi. "Sango" is already available to the public to enjoy as much as the public pleases. However, the photograph by Femi Adagunodo will be protected by copyright because it is a creative work on its own. Any unauthorized reproduction of the postcard should therefore be an infringement of the copyright of Femi Adagunodo..

If an artistic work is incidentally included in a film or broadcast, it will not constitute an infringement. Whether the inclusion of an artistic work in a film or broadcast is incidental or fundamental, of course would be a question of fact.

There are also exceptions to copyright control with respect to educational broadcasts, use of works in educational institutions, sound recordings of previously recorded works, reading or recitation of an extract of a published literary work, non-commercial use of a work by the government, public libraries, etc.

I hope that our tour of the limits and exceptions to copyright control has been informative. I promise that going forward, there will be more tutorials on the intricate subject of copyright.

See you next week.