THE LIMITS OF COPYRIGHT (2)

Last week, we examined the limits of copyright and found that while the owner of copyright has a wide range of exclusive rights which he does not share with anybody, his rights are not limitless. For instance, we learnt that in many cases, copyright does not last forever.

For instance, copyright in a sound recording expires fifty years after the end of the year in which the recording was made. It must be noted that it is irrelevant when a sound recording is published, the term of copyright is calculated from the time the recording was made.

In the music industry, it is traditional to release some recordings of popular artistes long after they have been made. The effect of this is that the effective term of copyright is shortened. Suppose Ivory Music Ltd discovers a previously unreleased recording of the late great Ozzidi King, Sonny Okosun which recording was made by Ivory's predecessor-in-title, EMI. The copyright in the recording would have started 'ticking' when the recording was made, before the death of Okosun. Therefore, the period within which the company can exclusively exploit the recording will become severely limited.

In fact, the copyright in most of the great sound recordings made by EMI in the early seventies, immediately after the Nigerian civil war, such as the recordings of the Strangers of Owerri, the Wings, Funkees and Apostles of Aba, Joni Haastrup's Monomono, Peacocks International Band and the early recordings of Fela Ransome Kuti should all be falling into the public domain soon, because they would all be fifty years old.

Similarly, the different owners of copyright in the great sound recordings of Ebenezer Obey's Board Members, Prince Nico Mbarga's Sweet Mother, Victor Uwaifo's Joromi, the early hits of Oriental Brothers, etc., should be on the look out as the term of copyright in these recordings come to an end.

Unlike a cinematograph film or photograph, it is indeed possible for the copyright in a sound recording to expire before the work is published.                                             

It is not clear what the philosophical underpinning is to this dichotomy in the law between the term of copyright in a sound recording and the term of copyright in a cinematograph film or photograph.

The term of copyright in a sound recording must be distinguished from the term of copyright in the musical or literary work embedded in the recording. The copyright in the sound recording may have expired while the copyright in the musical work still subsists. The practical consequence is that shortly, it will be possible for a radio station in Nigeria to broadcast any of the early 1970 sound recordings of EMI without obtaining a licence. The station may however still need to get the licence of the owners of the copyright in the songs embedded in the recordings. If the station does not, it will be liable for copyright infringement.

The term of copyright in a broadcast appears to be straight forward. Copyright in a broadcast expires fifty years after the end of the year in which the broadcast first took place.

Beyond the limitations set out by the different terms of copyright in different works, there are nineteen exceptions to the rights of the owner which are provided in the second schedule to the Copyright Act. What this means is that any of the nineteen acts listed in the second schedule may be done without the authorization or licence of the copyright owner. The doing of such acts will therefore not constitute copyright infringement.

It is important to examine the exceptions carefully, especially "fair dealing", to fully understand to what extent they can truly immunize a user from the liability of copyright infringement. Next time, we shall attempt such examination.

See you next week.

CHIEF TONY OKOROJI

Chairman

||COSON

COPYRIGHT SOCIETY OF NIGERIA LTD/GTE

COSON House, 41 Oluwaleimu Street,

Off Allen Avenue, Ikeja, Lagos

TEL: 234-802-304-3147

Email: tony.okoroji@cosonng.com

            tonyokoroji@yahoo.com

THE LIMITS OF COPYRIGHT

Anyone may be justifiably frightened by what appears to be the unlimited powers of the copyright owner. Indeed, it may appear that regardless of one's best efforts, it is impossible not to be a copyright infringer. That is not absolutely correct.

There are restrictions to the rights of the copyright owner. These restrictions attempt to find a compromise between the desire to protect the rights of creators of intellectual property; the need to ensure that the rules are not such that make life very inconvenient for the average person; and the desire to ensure that the creations of members of the society are of benefit to the entire society.

It has been said that the rights conferred by copyright are monopoly rights. Every monopoly confers benefits on some and burdens on others. The benefits of copyright are conferred on the copyright owner and the burden on the members of the public who may wish to use the work. To strike a balance therefore, the Copyright Act sets out limitations to the rights of the copyright owner.

You may have believed that the rights conferred by copyright are enjoyed forever. No. Apart from the moral rights, which are perpetual, the rights conferred by copyright expire after a period set out by law. This period known as the term of copyright depends generally on the nature of the work in question.

With the exception of photographs, all literary, musical and artistic works enjoy copyright protection from the time of creation of the work to the end of seventy years after the end of the year in which the author dies.

The question may then be asked, when will the copyright expire in "Shakara", "Lady", "I no be Gentleman", "When Trouble Sleep", "Suffering and Smiling" and all the other great compositions of the Abami Eda, Fela Anikulapo Kuti?

Since Fela died in August 1997, the term of copyright in his songs will end seventy years after December 31, 1997. Therefore, the successors-in-title to Fela should continue to have exclusive rights to his great works up to December 31, 2067. It then follows that from January 1, 2068, Fela's works should enter the public domain. In other words, anyone may be able to exploit those works without being held for any copyright infringement, provided the moral rights of Fela, which are perpetual, are respected.

"Identity" is arguably one of the most popular songs ever composed in Nigeria. The sudden death of the creator of the song, Oliver De Coque in 2008 does not make "Identity" the property of everyone. Oliver's heirs or assignees should continue to enjoy exclusive rights to the song, "Identity" and his other hit songs such as "Ibiri Kam Mbiri" and "Peoples Club" until December 31, 2078. Thereafter, all of Oliver's songs will enter the public domain.

Some of the implications of the rule discussed above are that for literary, musical or artistic works (except photographs), the copyright in all the works belonging to an author expire at the same time, regardless of when the works were made. In a case where the copyright has been transferred, assigned or sold, the expiration of the copyright depends on the death of the author and has nothing to do with the death of the eventual owner of copyright.

We have so far looked at the term of copyright in literary, musical or artistic works (other than photographs) in cases where the author of the work is a biological person. There are times when the law considers an institution, organization or corporate body as the author of a literary, musical or artistic work. Since such an author is not a biological person, it will be illogical to fix the term of copyright, in such cases, based on the time of the death of the author. In a case where an institution, government or a corporate body is the author of a literary, musical or artistic work, the copyright expires seventy years after the end of the year in which the work was first published.

Copyright in a cinematograph film or photograph, on the other hand, expires fifty years after the end of the year in which the work was first published.

While copyright in a literary, musical or artistic work other than photograph cannot expire during the lifetime of the author, it is practically possible for copyright in a cinematograph film or photograph to expire while the author is still active, especially if his productive career took off early in his life.

Copyright in Jab Adu's movie, "Bisi, Daughter of the River", which starred the beautiful Nigerian actress and singer, Patti Boulaye, should expire in the year 2027. If Jab Adu who passed on in 2016 had lived longer, the copyright may have lapsed during his lifetime because the movie was published in 1977 when Jab was quite active.

Similarly, copyright in some of the earlier photographs of Sunmi Smart-Cole may be running out. This is because Sunmi, the all-round artiste, embraced photography early in his life.

"The Gardener", the sweet home video movie produced and directed by Patrick Doyle which had gentleman singer and actor, Tunde Obe as the lead character was published in 1998. Copyright in "The Gardener" should expire on December 31, 2048. Therefore, from January 1, 2049, any broadcasting station may be able to broadcast "The Gardener" as much as it wants, without infringing the copyright of Patrick Doyle or his assignee or licensee as the work would have fallen into the public domain.

I promise that we will continue with this intriguing subject, the limits of copyright, in subsequent weeks. I thank you for being part of Saturday Breakfast.

See you next week.

PRINCIPLES GUIDING THE GRANTING OF AN ANTON PILLER ORDER.

Three weeks ago, we started a discussion in Saturday Breakfast of the famous Anton Piller Order deployed by litigants in Intellectual Property matters to take suspected infringers by surprise. As we have shown, there are serious arguments for and against the the Anton Piller Order. There is no question that the order which is obtained ex-parte can be very intrusive. As a result, some have gone as far as saying that it is unconstitutional.

The Anton Piller Order is part of our common law heritage. Efforts have however been made in Section 25 of the Nigerian Copyright Act to give the order statutory flavour within our country.

Because of the peculiar nature of the Anton Piller Order, certain principles have been developed to ensure that the order is not granted indiscriminately.

In England, a Consultation Paper on the Anton Piller Order published by the Lord Chancellor in 1992 set out certain principles that must be considered before an Anton Piller order is granted. A study of the practice in Nigeria suggests that the principles are the same. I wish to summarize the principles in this piece.

Just as it is the practice in most applications for practically any ex-parte order in Nigeria, an application for an Anton Piller Order must come with a prima facie case against the defendant before a judge may grant the order. It ought not to be forgotten that an Anton Piller Order is granted to enable the plaintiff obtain evidence suspected to be in the custody of the defendant which the plaintiff needs to prove his case in an intellectual property matter. It therefore means that if there is no triable case against the defendant, the order ought not be granted. The order should also not be an end in itself but a means to an end.

The danger to the plaintiff to be avoided by the grant of an Anton Piller Order must be serious. If there is an application for an order to prevent the destruction of evidence, it must be clear that the evidence is major if not critical to the case of the plaintiff. The onus therefore is with the plaintiff to show through affidavit evidence why this intrusive order should be granted.

The risk of destruction or removal of evidence must be a good deal more than merely possible. There must be reason to believe that if an injunction was granted against the defendant to preserve the evidence in question, the defendant will disobey such an injunction.

A judge granting the order would ensure that the harm likely to be caused the defendant or his business by the execution of the order must not be excessive or out of proportion to the legitimate object of the order.

Once again, as it is the practice in practically all ex-parte applications for injunction, the plaintiff would be required to give an undertaking to pay damages to the defendant if at the end of the day, it is determined that the order should not have been granted.

Justice Tajudeen Odunowo, then of the Federal High Court, restated some of these principles in Musical Copyright Society Nigeria (Ltd/Gte) v. Details Nig. Ltd. He went further to emphasize the absolute necessity of full disclosure of relevant facts. In other words, an applicant for the order must not suppress or fail to disclose any fact which is relevant to the granting of the order.

Musical Copyright Society Nigeria (MCSN) had on 8th May 1995 obtained a Section 25 order against Details Nig. Ltd. The defendant applied to discharge the order on the ground that it was obtained fraudulently. According to the defendant, relevant facts were not disclosed to the court before the order was granted. Justice Odunowo agreed with the defendants. In discharging the order, he made the following statement:

"Until the defendant raised the issue in their further and better affidavit in support of the present application, the plaintiff did not allude to the fact that they had applied for registration as a collecting society and that their application had been rejected by the Nigerian Copyright Council._If it has been brought to my attention that there was a pending controversy as to the status of the plaintiff company, I would certainly have been most reluctant to grant the ex parte order as I was virtually misled to do on that occasion. Now that all the full facts have been exhumed, there is no basis for continuing to sustain the said order which I have now discovered to have been granted under a misapprehension of material facts."

Dear readers of Saturday Breakfast; I hope I have not wasted your time in our lengthy discussions on the Anton Piller Order which I consider very important in the fight against copyright infringement. In our future tutorials, we will dwell on other aspects of the domestic and international dimensions to copyright and related rights.

See you next week.

BYE-BYE DONALD TRUMP!

I first served this piece in Saturday Breakfast of November 7, 2020, over two months ago. With the events in Washington DC this week, I am compelled to suspend our tutorials on copyright and serve the piece again because there are monumental lessons to be learnt from the Donald Trump Tragedy. Please humour me by reading this piece to the end and leaving a comment...  

I did not think that a man with the obvious character flaws of Donald J.Trump would ever be elected President of the United States of America. I thought that Americans are too smart to fall into such a hole.  I was wrong.

Let me confess that the election of Donald Trump left me devastated. It made nonsense of everything I believed in. I was terribly confused. For weeks, after that crazy Tuesday in November 2016, I refused to watch any TV news and weaned my addiction to my once favourite website, politico.com. The idea of seeing Donald Trump addressed as President of the United States was too much for me to bear.

I am an event organizer and love big theatre. Which theatre in the world is bigger than the inauguration of the President of the United States of America? Which show has ever attracted a live audience that big? Which big sporting event attracts a worldwide TV viewership that massive? I did not watch the inauguration of Donald Trump as President of the United States. For the first time, I was not interested in big theatre.

You are damn right if you say that I was acting like a jilted lover. True. Americans jilted me. I was going through that kind of pain and emptiness you feel when the one you love suddenly walks out on you. I love America. I am inspired by its ability to manage its diversity and use its coat of many colours to produce the most beautiful garment the world has ever known. I love the boldness of America that screams at you, "nothing is impossible!". I am awed by the intricacy of the New York Subway, the audacity of the Lincoln Tunnel, the sheer dizziness of the Manhattan skyline.  

I have been to Hollywood and marvelled at the depth of thought that conceived the gargantuan Universal Studios and the almost indescribable Disneyland.

Today, I spend practically all my time promoting the Nigerian creative industry and daring it to be bold. That surprises a lot of my family and friends who know that I am a science guy with an 'A' in Physics, Chemistry, Biology, Mathematics and Additional Mathematics. They do not understand how I ended up making music for a living. You think I understand it?

The truth is that despite all the metamorphosis in my life, I remain a great believer in empiricism. I am a plus this minus this equals this kind of guy. If you cannot explain it to me, I do not believe you. That is why I am convinced that 'juju', 'jazz', 'ogun', 'otumokpo' and all their brothers are all a big scam, a scam that has warped the thinking of Africans and left us bewildered as the rest of the world is splitting atoms, querying genes and probing Mars. In Africa, we still want to eat omelettes without breaking eggs.

You may then understand why I am shocked that people as smart as Americans could not see-through Donald Trump and understand that this guy is the king of 419. If thousands of miles away, I could see that this guy lies and lies, practically every time he speaks, why did Americans think that he would tell them the truth? If I could see that there had to be a sinister reason why this guy would not present his tax returns to his people, how come the brilliant Americans could not see it? If from Lagos Nigeria, I could see that this man-child who cannot keep his fingers off his smart phone, is a danger to everyone, how did the Americans come to the conclusion that they could trust him with their nuclear codes?

As Donald Trump turned the once proud White House into the set of a permanent reality show, even the Russians, the mortal enemies of America were openly laughing and openly mocking America. Vladimir Putin must have had a time of his life as he played Donald Trump like an acoustic guitar.  Donald Trump has fought everybody around him, firing everyone who did not agree with him. This apprentice in the Whitehouse without the intellect to understand diplomacy, thought he was on TV.

I hope the world has learnt a critical lesson. The skills required to build a skyscraper are different from the skills required to lead a free people in a democracy. The profit motive is driven by extreme self-centeredness, the kind that the Donald has in abundance. To lead a free people, you need to have extreme selflessness, the kind that Nelson Mandela had in abundance and which Donald Trump cannot understand.

This week, Americans woke up from their four-year old nightmare. They fired Donald J. Trump. Tired of the commotion and endless tweets and the thousands of Americans dying from the coronavirus, Americans have voted for a different way of doing things.

Donald Trump in typical fashion is unlikely to walk away from the Whitehouse like a gentleman. He will throw tantrums. He will curse everyone. He will kick. He will manufacture every conspiracy theory imaginable. Oh! the election has been stolen from him even though he is President and controls all the levers of power! In every direction, he will cause trouble and destroy the institutions even though his opponent received about seven million more popular votes across the country and won far more electoral college votes than him.

I know many Nigerian Christians who think Donald Trump is one of them and think they have to support him. No!            

The Donald Trump problem however is not just an American problem. It is a challenge to the entire humanity. How did this guy with absurd ego and obvious lack of self-control come to be in control of the world's biggest arsenal of nuclear weapons? If it does not bother you, it bothers me.

The world is a better place without a Donald Trump at the Whitehouse. There is a lot of a work to be done to bring humanity together and all hands need to be on deck. The first part of the job has been done by Americans who have looked at the Donald in the face and said to him, "you are fired!"

See you next week.