Copyright Protection for Visual Artists.

Introduction.

Intellectual properties due their intangible form are more vulnerable to theft and illegal appropriation and as such, creators need some sort of rights and protection to prevent illegal appropriation of their intellectual assets. Copyright protection is a form of intellectual property law that protect those who create expressive works such as visual arts. A startling number of artists are robbed, exploited and deprived daily of the desired benefits accruing from their creative works due to the unauthorized use of their intellectual assets by the public.

This article is tailored towards providing visual artists with the basic information and awareness of the national and international protections and rights offered to authors of artistic works.

What is Copyright?

Copyright is a form of intellectual property where exclusive legal right is granted to the originator of certain literary or artistic production for a set period of time.Copyright law aims to achieve two dinstinct goals.

1. To provide the originators exclusive right to their creative work for a limited period of time and
2. To protect artistic works from unauthorized use by the public.

In Nigeria, copyright is protected by the Copyright Act as contained in Chapter C28 Laws of the Federation of Nigeria, 2004 and it is administered by the Nigerian Copyright Commission (NCC). Section 1 (1) of the Copyright Act listed artistic works as one of the categories eligible for copyright and only eligible for legal protection if:

(a) 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.”

This statutory provision indicate that copyright protection subsists in original works of authorship fixed in any tangible medium of expression i.e, an idea cannot be copyrighted.

Also, unlike other forms of intellectual property like patents, designs and trademarks, a work that is eligible for copyright does not need to be registered in order for it to enjoy legal protection. An eligible work enjoys protection as soon as it is created and fixed in a definite medium.

In Nigeria, the process of registering a Copyright is done by submitting a completed registration form, along with two (2) copies of the work, and evidence of payment of the prescribed fee to the NCC. Registration can be done online or physically at the NCC office.

The duration for Copyright in Nigeria for artistic work other than photographs last 70 years following the death of the author. In cases where the work is owned by a government or a body corporate, the copyright will expire 70 years after the work was first published. Copyright in films and photographs last 50 years after the year the work was first published.

Copyright lapses after these stipulated times and the work goes into the public domain which means that it is accessible and available for use by the public.

Exclusive Rights available to artistic works include:

1. Reproduce of the work in any material form,
2. Publish the work.
3. Include the work in any cinematograph film,
4. Make an adaptation of the work,
5. Do in relation to an adaptation of the work related to the above.
6. Claim authorship of his work
7. Object and 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.
8. Seek redress in court upon infringement of copyright by way of damages, injunction accounts or other remedies available to him.

In relation to visual arts, copyrights protection can be exempted in situations where such works are used in fair dealing for purposes of research, private use, criticism, review, reporting of current events, educational purpose in an approved educational institution and the reproduction and distribution of copies of any artistic work permanently situated in a place where it ‬can be viewed by the public.

When an artistic work is made by an author during a course of employment and in the capacity of an employee, the employer is considered to be the author and copyright holder of such work. Where a work was created jointly by more than one artist, the authors of the joint work are all co-owners of the copyright in the work, unless there is an agreement to the contrary.

International treaties and laws on copyright protection.

In the quest to bring about protection of artistic works and other creative efforts among nations of the world as it affect copyright matters, a number of international agreements were reached and signed for such protections and rights in forms of treaties.

There is no such thing as an “international copyright” that will automatically protect an artistic works throughout the entire world. The term copyright varies from country to country and the protection against unauthorized usage of intellectual property in a particular country are determined by the national legislation of such country. However, most countries offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions such as:

1. The Berne Convention For The Protection Of Literary And Artistic Works. September 14, 1993.
2. Convention establishing the World Intellectual Property Organization. (WIPO) April 9, 1995.
3. World Intellectual Property Organization (WIPO)
4. Agreement establishing the World Trade Organization (WTO) January 1st 1995.
5. Agreement On Trade Related Aspects Of Intellectual Property Rights (TRIPS Agreement 1994) administered by the. World Trade Organization (WTO)
6. Universal copyright convention of 1962

Berne Convention for the Protection of Literary and Artistic Works.

The Berne Convention for the protection of Literacy and Artistic Work is administered by WIPO. It deals with the protection of works and the rights of their authors. It provides creators such as authors, musicians, poets, painters etc. with the means to control how their works are used, by whom, and on what terms. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.

These three basic provisions include;

1. Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of “national treatment”)
2. Protection must not be conditional upon compliance with any formality (principle of “automatic” protection)
3. Protection is independent of the existence of protection in the country of origin of the work (principle of “independence” of protection). If, however, a contracting state provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.

Convention establishing the World Intellectual Property Organization. (WIPO) April 9, 1995.

WIPO is an agency of the United Nations created in 1967 with 191 member states including Nigeria in a bid to contribute to the better understanding and co-operation among States for their mutual benefit and encouragement of creative activity and to promote the protection of intellectual property throughout the world while fully respecting the independence of each of the States.

WIPO seeks to;

• Promote the development of measures designed to facilitate the efficient protection of intellectual property throughout the world and to harmonize national legislation in this field;
• Perform the administrative tasks of the Paris Union, the Special Unions established in relation with that Union, and the Berne Union;
• May agree to assume, or participate in, the administration of any other international agreement designed to promote the protection of intellectual property;
• Encourage the conclusion of international agreements designed to promote the protection of intellectual property;
• Offer its cooperation to States requesting legal-technical assistance in the field of intellectual property
• Assemble and disseminate information concerning the protection of intellectual property, carry out and promote studies in this field, and publish the results of such studies.
• Maintain services facilitating the international protection of intellectual property and, where appropriate, provide for registration in this field and the publication of the data concerning the registrations.
• Take all other appropriate action.

Agreement On Trade Related Aspects Of Intellectual Property Rights (TRIPS Agreement 1994) administered by the. World Trade Organization (WTO)

The Trade-Related Aspects of Intellectual Property Agreement (‘TRIPS’) is a multilateral agreement administered by the World Trade Organisation (“WTO”) that came into effect on 1 January 1995 of which Nigeria is a member.

The introduction of TRIPS was a result of intense lobbying by the United States, supported by developed nations like the European Union and Japan due to culmination of several factors in a globalizing economy in the 1980s. Firstly, technology became increasingly important in international competition and Intellectual property protection in the field of new technologies to create or reinforce exclusive rights was required. Multinational enterprises were concerned about poor intellectual property protections in developing countries which would hamper their developmental prospects Therefore, TRIPS was created out of a need to establish minimum standards and an effective mechanism for enforcement.

The three main features of the TRIP agreement are:

1. Standards. In respect of each of the main areas of intellectual property covered by the TRIPS Agreement, the Agreement sets out the minimum standards of protection to be provided by each Member. Each of the main elements of protection is defined, namely the subject-matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.
2. Enforcement. The second main set of provisions deals with domestic procedures and remedies for the enforcement of intellectual property rights. The Agreement lays down certain general principles applicable to all Intellectual property enforcement procedures. In addition, it contains provisions on civil and administrative procedures and remedies, provisional measures, special requirements related to border measures and criminal procedures, which specify, in a certain amount of detail, the procedures and remedies that must be available so that right holders can effectively enforce their rights.
3. Dispute settlement. The Agreement makes disputes between WTO Members about the respect of the TRIPS obligations subject to the WTO’s dispute settlement procedures.

Universal copyright convention of 1962

Universal Copyright Convention (UCC) is an international copyright developed by United Nations Educational, Scientific and Cultural Organization (UNESCO) as an alternative to the Berne Convention for those states which disagreed with aspects of the Berne Convention but however, wished to participate in some form of multilateral copyright protection. The UCC imposes fewer substantive requirements than the Berne Convention. For countries that are members of both the Berne Convention and the UCC, in cases of conflict between the two conventions the Berne Convention prevails.

Terms of the Convention includes:

• Contracting states provide the same cover to foreign published works as they do to their own citizens.
• States that require formal registration should treat works from foreign states that are signatories of the convention as though they had been registered in the state, provided that they carry a notice which includes the © symbol and states the name of the owner.
• It sets a minimum duration for copyright protection as 25 years from the date of publication, and typically not less that 25 years from the authors death. With a notable exception of photographic and applied arts work which has a minimum protection of 10 years.
• It recognises the economic rights of the author, (the right to authorise reproduction, public performance, broadcasting etc.)
• It recognises the authors right to make translations of the work.
• It also specifies particular exceptions which may be applied to developing countries.

Conclusion

Having critically examined the national and international copyright protection available to visual artists, it is expected that artist should take advantage of the benefits of these copyright protections and take steps to ensure their intellectual assets are not illegally distributed and consumed.

Refrences:

Intellectual Property Rights in Nigeria:A Critical Examination of the Activities of the Nigerian Copyright Commission https://www.researchgate.net/publication/281745384_Intellectual_Property_Rights_in_NigeriaA_Critical_Examination_of_the_Activities_of_the_Nigerian_Copyright_Commission

Understanding copyright protection in Nigeria. https://www.lawyard.ng/understanding-copyright-protection-in-nigeria-1/

Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886) https://www.wipo.int/treaties/en/ip/berne/summary_berne.html

TRIPS Agreement on the Trade-Related Aspects of Intellectual Property. https://www.lawteacher.net/acts/trips-agreement-intellectual-property.php

Overview: The TRIP agreement. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

Copyright; to register or not to register. https://itsartlaw.com/2016/03/31/copyrights-to-register-or-not-to-register-that-is-the-question/

What is Copyright. https://www.artslaw.com.au/legal/raw-law/what-is-copyright

Understanding copyright. https://www.google.com/amp/s/alj.artrepreneur.com/understanding-copyright/amp/

Copyright basics. https://www.arsny.com/copyright-basics

An overview of copyright protection in Nigeria. http://www.mondaq.com/Nigeria/x/692416/Copyright/An+Overview+Of+Copyright+Protection+In+Nigeria+Part+1

Understanding copyright protection. https://www.lawyard.ng/understanding-copyright-protection-in-nigeria-1/

Copyright Act. Laws of The Federation of Nigeria.

Nigerian copyright law and practice. 2nd edition. John O. Asein.

Visual Arts and the Legal Issues of Copyright and Contract in Nigeria by Dr. Godwin Ogheneruemu Irivwieri Arpa