Definition and Types Intellectual Properties

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in Commerce.

The Four Types of intellectual property

– Copyright

– Patent

– Trademark

– Trade Secret

Copyright is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture and films, to computer programs, databases, advertisements, maps and technical drawings.

THE NIGERIAN COPYRIGHT ACT, CAP C28. Act to make provisions for the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast and other ancillary matters.

Copyright Act

Chapter 68

Laws of the Federation of Nigeria 1990

Part 1

1. Subject to this section, the following shall be eligible for copyright:

a. literary works;

b. musical works;

c. artistic works;

d. cinematograph works;

e. sound recording; and

f. broadcasts.

2. A literary, musical, or artistic work shall not be eligible for copyright unlessa.

Sufficient effort has been expended on making the work to give it an original character;

b. the work has been fixed in any 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.

3. An artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.

4. A work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other work.

5. Copyright shall be conferred by this section on every work eligible for copyright of which the author or, in the case of a work of joint authorship, any of the authors is at the time when the work is made, a qualified person, that is to saya. An individual who is a citizen of, or is domiciled in Nigeria;

b. A body corporate incorporated by or under the laws of Nigeria.

c. The term of copyright conferred by this section shall be calculated according to the table set out in the First Schedule to this Act. In the case of anonymous or pseudonymous literary, musical or artistic works the copyright therein shall subsist until the end of the expiration of seventy years from the end of the year in which the work was first published:

Provided that, when the author becomes known, the term of copyright shall be calculated in accordance with paragraph 1 of the First Schedule to this Act.

d. In the case of a work of joint authorship, a reference in the First Schedule to this Act to the death of the author shall be taken to refer to the author who dies last, whether or not he is a qualified person within subsection (1) of this section.

6. (1) Copyright shall be conferred by this section on every work, which is eligible for copyright and which-

(a) Being a literary, musical or artistic work or a cinematograph film, is first published in Nigeria; or

(b) Being a sound recording, is made in Nigeria, and which has not been the subject of copyright conferred by section 2 of this Act.

(2) Copyright conferred on a work by this section shall have some duration as is provided by section 2 of this Act in relation to the same type of work.

7. (1) Copyright shall be conferred by this section on every work, which is eligible for copyright and is made by or under the direction or control of the Government, a State authority or prescribed international body.

(2) The term of copyright conferred by this section shall be calculated in accordance with the table set out in the First Schedule to this Act.

8. (1) Subject to the exceptions specified in the Second Schedule to this Act, copyright in a work shall be exclusive right to control the doing in Nigeria of any of the following acts, that is-

(a) In the case of a literary or musical work, to do and authorise the doing of any of the following acts-

(i) Reproduce the work any material form;

(ii) Publish the work;

(iii) Perform the work in public;

(iv) Produce, reproduce, perform or publish any translation of the work;

(v) Make any cinematograph film or a record in respect of the work;

(vi) Distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement;

(vii) Broadcast or communicate the work to the public by a loud speaker or any other similar device;

(viii) Make an adaptation of the work;

(ix) Do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (I) to (vii) of this paragraph;

(b) In the case of an artistic work, to do or authorize the doing of any of the following acts, that is-

(i) Reproduce the work in any material form,

(ii) Publish the work.

(iii) Include the work in any cinematograph film,

(iv) Make an adaptation of the work,

(v) Do in relation to an adaptation of the work in subparagraphs (I) to (iii) of this paragraph;

(i) make a copy of the film,

(ii) Cause the film, in so far as it consists of visual images to be seen in public and, in so far as it consists of sounds, to be heard in public,

(iii) Make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track,

(iv) Distribute to the public, for commercial purposes copies of the work, by way of rental, lease, hire, loan or similar arrangement.

(2) The doing of any of the acts referred in subsection (1) of this section shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognisably derived from the original.

(3) Copyright in a work of architecture shall also include the exclusive right to control the erection of any building which reproduces the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original, but not the right to control the reconstruction in the same style as the original of a building to which the copyright relates.

9. (1) Copyright in a sound recording shall be exclusive right to control in Nigeria-

(a) The direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording either in its original form or in any form recognisably derived from the original;

(b) The distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan or similar arrangement.

(2) The exception specified in paragraphs (a), (h), (k), (l), and (p) of the Second Schedule to this Act shall apply to the copyright in sound recording in like manner as they apply to copyright in literary, musical or artistic work or a cinematograph film.

(3) The provision of the Third Schedule to this Act shall apply in respect of sound recording.

10. (1) Subject to this section, copyright in a broadcast shall be the exclusive right to control the doing Nigeria of any of the following acts, that is-

(a) The recording and the re-broadcast of the whole or a substantial part of the broadcast;

(b) The communication to the public of the whole or a substantial part of a television broadcast, either in its original form or in any form recognisably derived from the original; and

(c) The distribution to the public for the commercial purposes, of copies of the work, by way of rental, lease, hire, loan or similar arrangement.

(2) The copyright in a television broadcast shall include the right to control the taking of still photographs from the broadcast.

(3) The exceptions specified in paragraphs (a), (h), (k) and (o) of the Second Schedule to this Act shall apply to the copyright in a broadcast, in like manner as they apply to copyright in literary, musical or artistic work or a cinematograph film.

11. (1) Where the owner of the copyright in any literary, musical or artistic work authorises a person to incorporate the work in a cinematograph film and a broadcasting authority broadcasts the film, the owner of the copyright shall, in the absence of any express agreement to the contrary between the owner and that person, be deemed to have authorised the broadcast.

(2) Notwithstanding subsection (10 of this section, where a broadcasting authority broadcasts a cinematograph film in which a musical work is incorporated, the owner of the right to broadcast the musical work shall, subject to this Act, be entitled to receive fair compensation from the broadcasting authority.

12. (1) Copyright conferred by sections 2 and 3 of this Act, shall vest initially in the author.

(2) Notwithstanding subsection (6) of section 10 of this Act where a work-

(a) Is commissioned by a person who is not the author’s employer under a contract of service of apprenticeship; or

(b) Not having been so commissioned, is made in the course of the author’s employment, the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under contract.

(3) Where a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical,; or to the reproduction of the work for the purpose of its been so published; but in all other respects, the author shall be the first owner of the copyright in the work.

(4) In the case of a cinematograph film or sound recording, the author shall be obliged to conclude, prior to the making of the work, contracts in writing with all those whose works are to be used in the making of the work.

(5) Copyright conferred by section 4 of this Act, shall vest initially in the Government on behalf of the Federal Republic of Nigeria, in the State authority on behalf of the State in question, or in the international body in question, as the case may be, and not in the author.

13. (1) Subject to the provisions of this section, copyright shall be transmitted by assignment, by testamentary disposition or by operation of law, as movable property.

(2) An assignment or testamentary disposition of copyright may be limited so as to apply to only some of the acts which the owner of the copyright has the exclusive right to control, or to a party only of the period of the copyright, or to a specified country or other geographical area.

(3) No assignment of copyright and no exclusive license to do an act the doing of which is controlled by copyright shall have effect unless it is in writing.

(4) A non-exclusive license to do an act the doing of which is controlled by copyright may be written or oral, or may be inferred from conduct.

(5) An assignment or license granted by one copyright owner shall have effect as if granted by his co-owner also, and, subject to any contract between them, fees received by the grantors shall be divided equitably between all the co-owners.

(6) For the purpose of this section, persons shall be deemed to be co-owners-

(a) If they share a joint interest in the whole or any part of a copyright; or (b) if they have interests in the various copyrights in a composite production, that is to say, a production consisting of two or more works.

(7) An assignment, license or testamentary disposition be effectively granted or made in respect of a future work or an existing work in which copyright does not yet subsist; and the prospective copyright in any such work shall be transmissible by operation of law as movable property.

(8) A testamentary disposition of material on which a work is first written or otherwise recorded shall, in the absence of any contrary indication, be presumed to include any copyright or prospective copyright in the work which is vested in the deceased.

14. (1) The owner of a copyright has the right-

(a) To claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts referred to in section 5 of this Act except when the work is included incidentally or accidentally when reporting current events by means of broadcasting.

(b) To object and to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation.

(2) The rights referred to in subsection (1) of this section, are perpetual, inalienable and imprescriptible.

(3) For the purpose of this section, “author” includes his heirs and successors-intitle.

12. (1) notwithstanding any assignment or sale of original work, the authors or graphic works, three-dimensional works and manuscript shall have an inalienable right to share in the proceeds of any sale of that work or manuscript by public auction or through a dealer whatever the method used by the latter to carry out the operation.

(2) The right conferred by this section shall apply to originals of such work.

(3) The conditions for the exercise of the right conferred by this section shall be determined by regulations to be made by the Nigerian Copyright Council established under section 30 of this Act.

(4) The foregoing provisions of this section, shall not apply to architectural works or applied art.

(5) In this section, “author” includes heirs and successors-in-title.

13. Publishers, printers, producers or manufacturers of works in which copyright subsists shall keep a register of all works produced by them showing the following, that is-

(a) the name of the author;

(b) the title;

(d) the quantity of work produced.

14. (1) Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright-

(a) does, or cause any other person to do an act, the doing of which is controlled by copyright;

(b) imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph

(a) of this subsection;

(d) distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph

(a)of this subsection;

(e) makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;

(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;

(g) Performs or cause to be performed for the purposes of trade or business or as supporting facility to a trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

Patents

What is a patent?

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new invention must be disclosed to the public in a patent application.

Trademark

What is a trademark?

Distinctive design, graphics, logo, symbols, words, or any combination thereof that uniquely identifies a firm and/or its goods or services, guarantees the item’s genuineness, and gives it owner the legal rights to prevent the trademark’s unauthorized use.

A trademark must be following:

(1) Distinctive instead of descriptive,

(2) Affixed to the item sold, and

(3) Registered with the appropriate authority to obtain legal ownership and protection rights.

Trademark rights are granted usually for 7 to 20 years and, unlike in case of patents, are renewable indefinitely. These rights are protected worldwide by international intellectual property treaties and may be assigned by their owner to other parties.

Trade Secret

Trade secrets are the secrets of a business. They are proprietary systems, formulas, strategies, or other information that is confidential and is not meant for unauthorized commercial use by others. This is a critical form of protection that can help businesses to gain a competitive advantage.Although intellectual property rights protection may seem to provide a minimum amount of protection, when they are utilized wisely, they can maximize the benefit and value of a creation and enable world-changing technology to be developed, protected, and monetized.