Justification for Copyright Protection

Copyright Concept
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The Copyright Act of Nigeria Cap C 28 Laws of Federation of Nigeria 2004 defines copyright as “copyright under this Act.” This definition is not very useful. So we turn to other sources for help.

The Black’s Law Dictionary defines “copyright” as follows:

The right to copy…a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.[1]

“Copyright also means the exclusive right to control the doing in Nigeria of certain acts in relation to the work in which the right subsists. So as the name suggests, it is the exclusive right that the owner has to make copies of his works; the right in the use, reproduction and exploitation of his created works.”[2]

From the above, it may be deduced that copyright means the right to copy or the exclusive right to prevent others from dealing with the work in a manner inconsistent with the rights of the owner.

Why protect copyright?

Article I, Section 8, Clause 8, of the United States Constitution grants Congress the power:”[t]o 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.”

This clause is often called the “patent and copyright clause” because it is the source of Congress’ power to enact legislation regulating patents and copyrights. Implicit in clause 8 above is a balancing of interests between the intellectual property right holders and the society in general.

Copyright needs protection for the advancement and progress of science and to serve as an incentive for creativity. This dual purpose is encapsulated in the United Nations Declaration of Human Rights article 27(1) and (2) which states: “[e]veryone has the right freely to participate in the cultural life of the community to enjoy the arts and to share in the scientific advancement and its benefit.’ ‘(2) Everyone has the right to the protection of the moral and material interest resulting from any scientific, literary or artistic production of which he is the author.’

The above provision is captured in elegant language by J.O. Asein. He wrote:

The man who draws water from the village stream and the one who collects firewood from our bushes lay claim to the water and the firewood, not because they created or planted them but because they have, through their labour, gathered what otherwise would have passed as common property. The fruit gatherer or cattle rearer gains ownership if he gathers or domesticates what could have remained wild and ownerless…The man that exerts his intellectual effort in the creation of ides deserves greater protection, for as aptly remarked by the legislature of the States of Massachusetts in 1789, there is “no property more peculiarly a man’s own than that which is produced by the labour of his mind”. And if there is good reason for the law to protect any property it may very well start with copyright.[3]

It will be immoral for people to gather fruit from where they did not sow seed. Were there no copyright laws, there would be inertia on creativity. This is referred to as the ‘problem of the free rider’ – a situation where innovators wait for others to invest in a creative activity only to ‘copy’ the invention of the lead innovator, thus benefiting immensely from the labour of another inventor.

Unless countries around the world make relevant laws to protect copyright violations, public goods, such as movies and music, would be produced at socially sub-optimal level. [4]

[1] Bryan A. Garner, Black’s Law Dictionary, 8th  ed ,2004 ( West Publishing Co,St. Paul ,MN) p.361.

[2] Nigerian Copyright Council, The Nigerian Copyright Act (Sam Bookman Ibadan, 2004) p.1.

[3]  Nigerian Copyright Council, The Nigerian Copyright Act (Sam Bookman Ibadan, 2004) pp 5-6.

[4] T Fisher, Promises to Keep: Technology, Law, and the Future of the Entertainment, Chapter 6 “An Alternative Compensation System.” (Stanford University Press, 2004).

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About Ezeudo Maduka 7 Articles
Ezeudo Maduka Esq. holds a Bachelor of Laws from the University of Nigeria Nsukka, a licence to practise as Barrister and Solicitor of the Supreme Court of Nigeria, a Master of Laws from the University of Uyo, and a diploma in copyright from the Harvard Law School and Berkman Centre of Internet and Society. He has been a practising lawyer for the past 7 years and a law lecturer at the Abia State Polytechnic Aba, Abia State. His research interests orbit the intersection of copyright law and the Internet; digital piracy; anti circumvention of technological protection measures; protection of digital works, and other areas within intellectual property law and practice in the 21st century.