IMPORTANT LESSONS IN COPYRIGHT

Do you know that copyright is infringed by any person who without the licence or authorisation of the owner of copyright performs or causes to be performed for the purposes of trade or business or as supporting facility to a trade or business, any work in which copyright subsists?

 

Please do not think that performance only refers to live performance. Performance does not only refer to live performance but includes the playing of recorded music on the facility. It also includes radio, television and cable broadcasts or computer transmission received on the facility. As long as it can be shown that the reception of such a broadcast or transmission is outside of a private setting, a performance in public will be deemed to have taken place. Indeed, even if the record player, radio or television set or a computer monitor is located in a private residence and the performance is clearly audible or visible in public, copyright infringement may still have occurred!

 

That certainly was the case in one of the many ground breaking copyright cases won by the Performing Rights Society of England (PRS), the UK version of COSON. In PRS v. Camelo, the defendant's wife managed a restaurant on the ground floor of a storey building where the family lived. There were three rooms on the ground floor used by the family. The room at the back was the kitchen. The room in the middle served as the family living room. The room in front opened out to the streets and it was in this room that madam's customers were served their meals.

 

A radio set in the family living room was so loud that it could be heard clearly in the restaurant. The evidence was that the customers were attracted to the music. The defendant however took the position that the radio was situated in a private residence and the fact that the music was heard in the restaurant area was merely accidental.

 

Justice Clauson who determined the case took the view that it was irrelevant where the radio set was located, the performance took place wherever the music was audible to a person hearing it as a musical piece. In the words of the judge, "the performance may be in the private living room and extend far beyond the area and on the facts of this case I should say it extends over substantially to the whole restaurant".

 

Of course, it was held that the defendant had infringed copyright.

 

This kind of infringement is pervasive in Nigeria. Culprits include nightclubs, banks, hairdressing & barbing salons, supermarkets, stadia, restaurants, luxury buses, airports, etc.

 

In Nigeria, it is not unusual for a proprietor of a nightclub or business premises to express the view that he is promoting the work when such work is used in his establishment. In other words, the owner of the work should be grateful for the use until a court summons is served on the proprietor of the facility!

 

This same argument has been made elsewhere but the principle has been clearly established that the user must obtain authorisation or licence whether he thinks he is doing the owner of the copyright a favour or not. If the user does not obtain authorisation, he will be in breach of copyright.

 

The Performing Right Society (PRS) of England in the past did not ask owners of record shops to obtain licences in order to play music over loud speakers in their shops. In 1976, this policy was changed and the new policy was seriously resisted because the record shop owners took the position that by playing the records in their shops, they were promoting record sales, thereby increasing royalties paid to music composers. Unfortunately for the record shop owners, the English courts did not buy their argument.

 

In Performing Right Society Ltd v. Harlequin Record Shop Ltd, it was decided that PRS was entitled to an injunction to restrain the record shop owners from playing music over loud speakers because such use constituted copyright infringement.

 

The acid test applied by the Courts was to ask the owners of record shops if they would wish to stop playing music in their shops if they lost the case. Both the defendant and the owner of a chain of 22 record shops, with obvious reluctance, said that they would rather pay royalties than stop playing the music.

 

Please note that where unauthorized copying or reproduction has been proved, a defendant obtains no legal immunity by claiming that he did not know that he was copying the work of the owner of copyright.

 

Even where the infringer had no intention to infringe, he will still be liable for the infringement. It is clearly no defense that the defendant had no intention or was unaware and could not have been aware that what he was doing was an infringement of copyright.

 

In the English case of John Lane, The Bodley Head Ltd v. Associated Newspaper Ltd, a newspaper editor published a short story which he had paid for in the belief that it was an original work. A claim of innocence was rejected by the court, which decided on "the true interpretation of the section", that copyright had been infringed.

 

It must however be stated that while infringement may be held against the innocent infringer, he will not be liable for damages if it is proved that he was not aware and had no reasonable ground to suspect that copyright subsisted in the work. He will however account for any profit he has made to the owner, assignee or exclusive licencee as the case may be. This was the decision of the Supreme Court of Nigeria in Plateau Publishing Co. Ltd v. Adophy.

 

Chief Adophy had taken Plateau Publishing Co. Ltd to court for publishing his literary works titled "After Tarka, what Next?" without authorization. The article was published in the company's newspaper, The Nigeria Standard, under the name Yima Sen under a different title, "Lessons from Tarkaism- a tribute feature". Chief Adophy claimed a total of =N=250,000 (Two hundred and fifty thousand Naira) for the infringement.

 

The Court found Plateau Publishing Company to have infringed Chief Adophy's copyright and awarded special damages of =N=25,000 (Twenty Five thousand Naira) and additional damages of =N=10,000 (Ten thousand Naira).

 

The decision was appealed up to the Supreme Court. The Supreme Court upheld the decision and the special damages but set aside the additional damages.

 

The Supreme Court consequently made the following decisions which have become important markers on the issue of "innocent infringement":

 

1.   Where it is admitted or proved that an infringement had taken place, but that at the time of the infringement the defendant was not aware and had no reasonable grounds for suspecting that copyright subsisted in the work, the plaintiff is not entitled to damages, but to account of profit whether any other relief is granted or not.

 

2.   The defense of innocent infringement cannot protect a person who, knowing or suspecting that copyright subsists in a work, makes a mistake as to the owner of the copyright and therefore obtains authorisation from a person who is not the owner.

 

3.   To merely show that he had an honest but mistaken view of the law or that he reasonably believed that the work in question was an original work is not enough to establish that a defendant had no reasonable grounds for suspecting the existence of copyright. Furthermore, if a defendant made no inquiry whatsoever as to the source from which the work was derived he cannot plead that he had no reasonable grounds for suspecting the existence of copyright.

 

4.   As a general principle, any invasion of a right of property gives the owner of the property a right of action against the person responsible for the invasion of his rights, whether the invasion is intentional or not. Consequently, innocence is no defense to an action for infringement of copyright or for the conversion or detention of an infringing copy or a plate.

 

In the week of the celebration of the World Intellectual Property Day, I thought that for Saturday Breakfast today, we should serve this course which is an adaptation from my book, Copyright & the New Millionaires.

 

See you next week.

CAN YOU IMAGINE… IT HAS BECOME SEXY TO DIE?!

Say what you may, hatred has taken over the world and terror is out of control and the world as we know it may have changed forever. Time was when every security or war plan was based on the fact that every rational human being will do anything to stay alive. Only losers with no hope committed suicide.

You set up your security knowing that the fear of death was a deterrent to the robber who wants to attack your home. 'Beware of dogs!' was the inscription on the wall of the home of every rich man. Those who want to wage war against your nation must first check out your military might to determine if they can match you bazooka for bazooka, missile for missile.

Forget all the flowery stuff we read in the holy books about heaven, how many people did you know who were in a hurry to visit the white cool place where angels sing day and night and everyone eats fresh fruits? Do you remember the words in the evergreen song, 'Equal Rights' by the late great Jamaican reggae superstar, Peter Tosh: "Everyone wants to go to haven but nobody wants to die!"? That was before it was revealed to young men that for each of them ready to blow himself up, there are seven exquisitely beautiful and randy virgins waiting for them to do all kinds of imaginable things in the cool place.

That was how the suicide bomber stepped in and proliferated. Now, how do you protect yourself against so many men and women scattered all over the world strapped with bombs around the most intimate parts of their anatomies and begging to blow themselves up and blow up everyone else around them and die for whatever crazy beliefs they profess? Can you imagine… it has become sexy to die?!

Beautiful young women in their prime, gorgeously dressed are walking around shaking their thing with explosives pressed against their tender skin knowing that once they press the button, it would be 'gboam'! They would be blown up into bits and pieces with whoever has the bad luck to be around them and they are glad to do it! That is how ISIS attracted thousands of young people from across the world. People don't want to die quietly in their sleep or in their bedroom anymore. It appears to have become fashionable to die in one's prime in an explosive! 

Osama Bin Laden may be dead but the seeds he planted are growing wild. From Kabul to Kandahar to Kirkuk to Karachi to Kano; from Najaf to Nairobi; from Paris to Palmyra to Peshwar; Baghdad to Basra and Benghazi and everywhere else. It is not just his wild bearded look that is proliferating, the world appears to be engaged in an orgy of death, a fireworks competition. Explosives are going off all the time and my guy, it is not video game. Real people in their thousands are having their lives stamped out. We are not talking about roaches but people's fathers, mothers, sons, daughters, brothers, sisters…..

Time was when we used to boast that Nigerians could never be suicide bombers. Then, Boko Haram arrived and taught the world how to kill people without rhyme or reason.

That was why I have begged my proud brothers and sisters from Igboland to think through the method of the Biafra agitation. I do not want any beautiful young Igbo girl strapping herself with bombs and blowing herself up in a world where it has become sexy to die. There is just too much blood flowing everywhere. Each person killed brings more people to engage in the endless shedding of blood. I do not want the blood of any of my kith and kin shed meaninglessly.

Because of my plea, some guy took me to town calling me a coward! Me?! A coward?! I forgive the guy. He does not know me. 

See you next week.

THE MAGICAL POWER OF WORDS

I am a sucker for words masterfully put together. I believe that words used the right way can move mountains. They can make men fight like hell in war. The right words can bring peace where strife had reigned. The architecture of change is words. The building is action.

I am sure that if Barack Obama did not have the talent for assembling words the unique way he has done, he probably would have at best been a tourist that once in a while gets a chance to peep at the White House from the barricades on Pennsylvania Avenue. For eight good years, Obama was the occupant of the historic estate.

 Just imagine how many people have been moved by the immortal words of Martin Luther King Jnr in his 'I have a dream' speech. What of the unforgettable 'Ask not what your country can do for you' speech of John F. Kennedy? Without 'Yes we can' would Obama, the young man of Kenyan ancestry, have become President of the most powerful nation on earth?

This lanky black boy and his wife have been received with full military honours by the King of Saudi Arabia. Not too long ago, the regal Queen Elizabeth of England and her ninety-something year old husband had to go out to the helipad to personally receive Barack Obama and his wife. Imagine!

As a Nigerian, I keep scratching my head in search of the memorable or inspirational words of our leaders. Of course, I ask myself whether the lack of appreciation of the use of words by those who purport to lead us, to paint their picture of tomorrow and to inspire us to dream big dreams, has something to do with the level of our underdevelopment.

When Reuben Abati, a man of words, joined the team of President Jonathan, I began to nurse the hope that the President's speeches would from then show the understanding that words and the way they are used matter. I waited and waited.

 

I am sure everyone remembers that during his first inauguration, President Buhari said these words: 'I belong to everybody and I belong to nobody'. The words practically caught fire. They were repeated over and over across the country. Those nine words conveyed deep meanings of which a major book could be written. I had hoped thereafter to hear from our President such deep words that can exalt Nigerians and elevate the desire of Nigerians, man and woman, to do the work necessary to uplift our nation.

 

Why is it important? No general fights a war alone. He must inspire his commanders and foot soldiers to feel what he feels, take on the enemy with gusto and lay down their lives if it becomes necessary. A good army is like an orchestra. All the instruments are in tune and every instrumentalist follows the slightest gesture of the conductor. My gut feeling is that Nigeria is at war but the foot soldiers necessary to win the war are not engaged. The war has not been properly articulated. So, everyone is waiting for President Buhari to fight the war and win it all by himself. I do not know how that is going to happen. I know not where it has happened before. No conductor plays a symphony all alone.

 

Words and the way they are used matter at every level of leadership; at home, at work, in religion, in politics, everywhere. The greatest salesmen are those who know how to use words. The greatest preachers are those who know how to use words and definitely, the greatest leaders.

 

Words wrongly used can also set off a fire like they did in Rwanda. 'I am not a magician' once credited to Dr Emmanuel Ibe Kachikwu, the Honorable Minister of State for Petroleum caught fire across the country. I am not sure that it caught the kind of fire Dr Kachikwu would have wished. How many remember the words credited to the late Umaru Dikko: 'Nigerians are not picking food from the dustbin' or 'telephone is not for the poor' allegedly said by the former Senate President, David Mark? Such regrettable words hit the people below the belt at their most vulnerable. By the way, I once watched Dr Kachikwu take on some very difficult questions on CNN after a failed OPEC meeting. I was proud. It is my humble opinion that he handled himself very well.

 

As I watched Barrack Obama on TV speak with uplifting panache at the 2004 convention of the Democratic party in Boston Massachusetts at which John Kerry was nominated candidate for the US presidency, I had no doubt that I was watching history unfold. Obama has since then been elected a US Senator. He has twice been elected President of the United States. John Kerry at whose Presidential convention the magic of Obama became clear to those who appreciate such things, served Obama as Secretary of State. Kerry never became President. The power of words!

As I write about the power of words, I am very much persuaded that if the Buhari presidency will do for Nigerians that which every good Nigerian wants, the quality of communication needs to be lifted. Otherwise, somebody at Aso Rock may just be winking at a beautiful girl in the dark!

See you next week.

 

HOW DID THE CONCEPT OF COPYRIGHT SPREAD AROUND THE WORLD?

 

In the seventeenth century, the ideas propagated by the likes of the English philosopher, John Locke made great impact in Europe. His social contract theory and the idea that men are born equal had tremendous resonance among the people who began to question the unlimited powers of their leaders. The old order began to disappear as people claimed more individual freedom and the absolute monarchies were replaced by parliamentary democracies. As people exercised their new found freedom of expression, the old practice of printing privileges and monopolies were challenged and the theory of intellectual property began to spread. The Stationers' Company consequently set about to bring pressure on Parliament to grant some form of protection to authors and their publishers.

 

On January 11, 1709, a Bill was brought to the House of Commons intended to pass a law "for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies during times therein mentioned". Arising from the draft Bill, a law was passed on April 10, 1710, with an introduction that said that printers had taken the liberty, without the consent of authors to print books and other writings, to the very great detriment of authors "and too often to the ruin of them and their family". The law known as the Statute of Anne is widely believed to be the first copyright law in the world. It is the first known enactment recognizing the right of an individual to protect a published work, in the modern sense.       

 

Before the Statute of Anne was enacted, there was massive exploitation of authors by printers who at that time were not required to obtain the consent of an author before embarking on the exploitation of his work. Strange as it may sound, the authors themselves did not have the right to publish their own books except they were members of the Stationers' Company and obtained permission from the King, conditions which were most difficult to fulfill. The exploitation of the works of authors without their consent had dire consequences. Some of the most brilliant minds in England lived in penury. The situation discouraged gifted people from exploiting the resources of their intellect.

 

The stated objective of the Statute of Anne therefore was, "the encouragement of learned men to compose and write useful books". The law gave the author of a book already printed the sole right of reprinting such a book for a term of twenty one years with effect from the date the law came into force. The author of a book not already in print or written was given the sole right of printing or reprinting the book for a term of fourteen years in the first instance. The author could renew the term for a further fourteen years if alive at the expiration of the first term.

 

The Statute of Anne only protected the authors of books. As the saying goes in Nigeria, the other classes of creators were on their own!  Over time, even the protection given authors of books was criticized for being too limited. The law neither made any provision for the control of translations nor of public performance. Agitations for either new laws or changes in the existing law began to gather steam. The works of one of the most famous English cartoonists of the era, Hogarth was being massively reproduced. Hogarth, whose drawings always had a slant of biting sarcasm, became the arrow head of a movement that led to the enactment of the Engravers' Act of 1735. The Act, for the first time, gave legal protection to the works of designers, artists and painters.

 

The development of the copyright concept in England coincided with the spread of the very powerful ideas of the French philosopher, Jean Jacques Rousseau. It was a very turbulent period in France as the revolutionary ideas of Rousseau flourished. The concept of literary property itself was revolutionary and quickly overthrew the system of privileges. In 1777, King Louis XVI promulgated six decrees which recognized the right of the author to control the publishing and sale of his work. During the revolution, attempts were made to remove all individual privileges and that of cities and provinces. At the end of the turbulence, a fundamental recognition was made by the French which in many ways might explain why the French have ever since, taken the lead on most issues related to copyright. The recognition was that the right of the author was not dependent on the concessions of public officers but on the natural order flowing from intellectual creation itself. France promulgated a decree in1791 which for the first time recognized the exclusive right of an author to control the performance of his work. Another decree of 1793, established another exclusive right of an author, the right of reproduction. The French also played a leading role in establishing the framework that produced the major international conventions on copyright.

 

Following developments in Europe, in the United States of America, most of the various states had some copyright provisions in their laws even before the American Revolution. For instance, the immortal words which said that there was "no property more peculiarly a man's own than that which is produced by the labour of his mind", came from the law passed by the state of Massachusetts on March 17, 1789 which provided protection for the works of authors. The first federal copyright law in the United States came barely a year after the Massachusetts law. The Copyright Law of 1790 provided for the protection of books, maps and charts. This was clearly in fulfillment of the powers given by the United States Constitution to Congress "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". Subsequent enactments however, appear to have given an elastic interpretation to the word, "writings" because these enactments went on to provide protection for dramatic performances , photographs, songs and other forms of art.

 

For most countries in Europe, the period following the enactment of the Statute of Anne, was a period of tremendous development in legislative affirmation of the author's right. Some even did more than anyone could have hoped for. For instance, Norway and Denmark adopted an ordinance in 1741 which provided a perpetual exclusive right for an author or his heir.^[1] In Spain, King Charles III enacted a law in 1762 which emphasized that the privilege to print a book would only be granted to "the one who is the author". It is reasonable to say that the fever quickly spread all over Europe, especially with the tremendous expansion of rights and the subsequent extension of such rights to foreign authors, which were all promoted by France.

 

In England, different statutes were enacted to increase the term of copyright and to bring more types of works other than books, to enjoy copyright protection. For example, an Act of 1842 provided that copyright will subsist throughout the life of the author of a book and for seven additional years after his death. Most of these statutes were combined to bring about the 1911 Copyright Act of England. The 1911 Act was extended to apply to the Protectorate of Northern and Southern Nigeria by an Order in Council. And then came the Nigerian Copyright Decree of 1970 and the present Copyright Act of 1988 which this writer played no small part in getting enacted. 

 

This article is an adaptation from my book, Copyright & the New Millionaires

 

See you next week.

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