IMPUTATIONS OF A LEGAL AND CULTURAL REGIME

By

Sulay Nsubong

MONOGRAPH 005

First published in 2012

CONTENTS

1. A Cultural Environment for Writers and Artistes in Niger State
2. Enforcement

A Cultural Environment for Writers and Artistes in Niger State  

Writers and artistes in Niger State and even beyond, in person or as organisation, have found enormous support in the government of Dr. M. B. Aliyu, as government or as individuals.  We have artistes such as Gwape Musical Troupe, Teacher Eyekondunu (Sadisu Muhammed), Sibombo, Prince Zino, MRC, Future Boy, Eric Dwight, Habib, Hamza Bida, MP3, Aliyu Dodo, Teacher Eyekondunu (Sadisu) among a host of others.  It is worth mentioning that Sadisu Muhammed and M. K. Yahaya have produced a seminal work that appreciates Nupe songs, while I. B. Ibrahim is pioneering research-oriented works that collate Nupe proverbs, that which describes Nupe Mathematics, that which discusses plant forms and names, and those that are pure creative literature.  The path of preserving languages that are on the brink of extinction should be under the footpad of all.

It is expected that with a stable state, more investment in human resource and material resource capital are in the offing.  In 2009 LeoBooks, for example, transferred services and investment from Kaduna State into Niger State and opened a central office on Lagos Street in which environs there are other printers and publishers.  In 2012, the press opened a warehouse at 123 quarters. Expansion in business means more patronage in business.  Formerly, Niger State dealt with such printing houses from abroad, that is, in such places as Kaduna State as it would China.  The effect of having an effective press and editors connected cannot be under-estimated in the growth of literature and scholarship.  This was observed in the growth of the literature in America.  Formerly, with the waning of activities by Madaz firm, it could be observed that the production of books in Niger State that they had hitherto promoted even though instinctively, waned, too.  Thus, the proliferation of printing houses has a direct relationship to the growth of literature or scholarship.  It is to be expected that more support will come in form of grants to printing houses periodically, to sponsor publication of works.  LeoBooks printed significant items, including books such as Government Council books, Discovering Dzukogi, Northern Governors’ Proceedings, Landmark Decisions, Northern Governors’ Forum, Position Papers Secretaries to Northern States’ Governments.

The government has been with culture of patronage of local press houses.  It also went into declaring a policy of using local content in the production of government coat of arms insignia.  The insignia were particular forged by popular smiting enclave as Bida Tswata Mukun in Bida and elsewhere.  Also, craftsmen and artisans of Kasuwar Gwari, Minna, made NIGROMA refuse receptacles for dumps.

In the face of a burgeoning activity of writers, artisans, printers and publishers, and artistes in Niger State, the imperative of a legal regime becomes glaring.  Already, the environment is blessed with centres of literature in which writers meet for cross-fertilisation of ideas, knowledge and wisdom.  The gains from a legal regime are manifold. Rights of owners of works need to be protected, they need to reap maximum benefit of their works, they need a peaceful environment within which to operate. The Settlement House Committee under the chairmanship of Permanent Secretary Special Duties, in 2010 set up by M. K. Yahaya to look into the feasibility of establishing a dispute resolution for Niger State was timely; resort to arbitration is often preferred because it is less rigorous, less time consuming, and non-rancorous, just the right sort of antidote for a business environment whose fundamental is peace.  Virtually in every avenue in Nigeria, mushroom markets have arisen whose soul for survival is infringement of copyright material.  They are found in major markets operating in the glare of the public, with network on roadsides, on the pavements, in wheelbarrows, and roadside shops.  Whenever there is a raid on such enclaves or criminals, sympathy goes to the perpetrators and not to the authorities, and thus the public help them to escape.  When a people are used to doing an unlawful act secretly without government intervention, they soon go about it publicly as if it were legal, without a blameworthy mind.  There is also example in the mining sector.  Thus, there is a culture of graft in Nigeria, by dint of joblessness and non-vigilance by authorities.  Certainly Emile Durkheim’s theory of anomie is in a similar direction.  These infringers put on the garb of manufacturers and vendors, dubbing and renting films and musical recording for commercial purposes.  Musicians themselves are involved in copyright the works of others.  The culture of cheat and impunity has to be uprooted.

Those at the receiving end tend to be the folk artiste in the rural area who does not have access to modern equipment, so that the artiste in the city adapts his tune in the city.  There was the case in Minna in which one of the troupes adapted a refrain of a certain Hajiya and luckily there was an arbitration, otherwise the dirty linen would have soiled the reputation of the renowned group who apparently went about the infringement without knowing the full import.  A case I am trying to make here could be aptly described in the 1983 Aba piracy case; in that case, the popular Longman Publishers long established in the country lost clear case of piracy against vendors of pirated books as the Magistrate Court ruled that the defendants were illiterates and could not have been expected to be aware that they were infringing on copyrights by their act of displaying pirated books for sale.

In such cases in Nigeria, there would seem to be departure from the established rule that copyright being a proprietory right, in an issue of infringement derived directly or indirectly from copyright work, the fact that the defendant was unaware that the work he used belonged to the plaintiff, or was the subject of copyright, will not afford to defence.  The furore in Nigeria in this issue is the hydra-headed power of the Illiterate and Infant Protection Law.  Professional musicians find it safer to get contract of performance, stage at social gatherings and make use of the musicians without prior permission.  Other musicians who do not have what is called “connections” for patronage easily fizzle out of existence.  So-called marketers masquerade in the Nigerian Home Video industry in every nook and cranny to perpetrate infringement.  Besides, our youth lose in study hours and are easily converted to delinquents and hoodlums by scapegoatism.  The Nigerian film industry is capital intensive, but lack of control for stability, leads to great loss of revenue for not only the artiste, but also for the government.  With instability in revenue from federation account, the state could garner a huge chunk of resources from the sector of the economy that looks negligible in revenue generation.  The government can learn from results of intensification and ordering of its tax regime.

Enforcement

There is an obligation that the owner of intellectual property enjoys his creative genius. Royalty is one way. Thus, infringement should be punished. However, there is an almost equal demand. “Copyright law protects original forms of expression not ideas or facts.  It follows from this general principle, that if a person supplies the idea for a play, picture, novel or a piece f music for example, to another person who is responsible for putting that idea into a particular dramatic, artistic, literary or musical form, it is that other person who clothed the idea in the form which is the subject of copyright, “(Video, Nigerian Media Law ({1991} at pg 228).  A work need not be new or novel to be original, but originality is fundamental to the protection afforded copyrighted works.  An author need not be the first person to say something, but the law requires that he must contribute something more than a mere trivial variation, something that can be recognised as his.

Intellectual Property Law is the law that regulates property that is a creation of the human intellect, such as books, scientific discoveries, performances, commercial designs and names and protection against unfair competition.  Thus, Intellectual Property Law is of particular relevance to Niger State in its quest to becoming Intellectual Capital of Nigeria.  As already highlighted under Legal Environment for Writers in Niger State, infringement of intellectual material is common practice in Nigeria, as markets are littered with pirated works, especially in literary works and textbooks in the syllabuses of examination bodies such as the West African Examination Council, National Examination Council, NABTEB, and Joint Admissions and Matriculation Board, and Schools Management Boards.  Targets of infringement are often film and music album, videos disc, and tapes, novels, anthologies of poetry.  In broad day light, raids are often made into such markets notorious in the act as Idiroko Market, Aba Market, but those in passive areas such as Minna enjoy relatively calm haven.

If holder of right does not authorise any commercial right in writing, then the holder has monopoly rights over such property.  Intellectual property is a result of man’s creative genius and can be passed onto another only by assignment, disposition, licence, or by operation of the law.  In the case of assignment, parties must agree to putting their deal in writing and the assignor (that is the party bequeathing) must sign or some other person must sign on his behalf.

Where the proprietor of right dies, the right devolves to the successors in title by testate or intestacy. Where the proprietor is bankrupt or insolvent, the right devolves to the receiver or liquidator. In the case of an intellectual property devolving by virtue of licensing, the various forms of licences would be implied.  The licence would be deemed inclusive where the licensee is given the sole authority to the exclusion of all others, including the licensor; it is deemed non-exclusive where the licence does not prevent the licensor from giving other licences.  In case that it is exclusive, the licences is exclusively authorised to exploit the patent or right.  However, section 23(4) of the Patent and Designs Act (1970) provides that in the absence of any provision to the contrary in a contract for a licence, the licensor may not be prevented from granting further licences to other persons, or himself to exploit the relevant patent or design.  Thus, geographical limitation may seep into work for the licensor.  The merit of an exclusive licence over the other is that the party in possession can use it in his own name in an action.

Royalty

Royalty is a payment to an author, inventor, artiste or composer for each copy of a work sold or to an inventor for each item sold under a patent.  The name royalty had its origin in the power of the crown (royalty).  For centuries on end metals of gold and silver apart from enjoying the statuses of monetary standards, were called “royal” metals and none could be minded except some payment (royalty) was made to the crown.

A hang-over of the crown ownership of royalty is enshrined in the 1999 Nigerian Constitution in which minerals appear under the Exclusive Legislative List conferring power to execute in the federal government and so no state can mine mineral resources in their domain save with federal consent.  But we shall not concern ourselves with royalty the subject of mineral rights.

Writers require the expertise of publishers to print and publish their works, playwrights the services of a theatre manager like UK Bello Theatre House Manager, and artists their portraits to be published in book form or put out for exhibition for the highest bidder.  Recently, we have seen that promotion and the ability to introduce for prizes are a twin function priceless on the mind of the author.  Investors may license others to manufacture their inventions.  In all of the above cases, we dwell on three presumptions.  The first is that, the proprietor of the work is without enough capital to undertake the manufacture and publication of his work, or that – secondly – he has enough capital he is not with enough time had his disposal, or that – thirdly – he just lacks the knowhow.

The owner of a right in intellectual property will wonder when his work is in the custody of say, the publisher, how long he can continue to enjoy his royalty.  In the absence of any agreement, the owner of a property possesses perpetual interest in the property.  Ownership is the ability to destroy without questioning. There is absolutism in ownership of property, especially as it concerns intellectual property.  However, when such right to ownership is given to concession, for example, when there is an agreement with a publisher, the owner of property is tethered to such agreement.

For example, the licence contract contains when to commence enjoyment of right and how the enjoyment may be terminated.  Such a clause is especially important in terms of breach.  Any such licence states whether the licensee can sub-licence or assign his licence, otherwise the law is in favour of delegates non potest delagare and will always presume that no sub-licence can be granted; and to that effect, section 23(4) of the Act provides on the force of the dictum that:

“In the absence of any provision to the contrary in a contract for a licence… the licence shall not be assignable by the licensee” and it “shall not be entitled to grant further licences”.

Obtain A Licence

A licence is a permission which may be parole or written to do something that the licensor possesses the power to prevent or regulate and such licence would otherwise have been unlawful.  In the matter of royalty, a party gets what he wants powerful enough to accede to, except on grounds of public policy to prevent abuse.  The cardinal spirit of law of contract holds sway, to the effect that parties to a contract are fundamentally free to enter into contract and by that reason of freedom bound by the terms of their contract; except that it would be pertinent to give a note of warning again here that the courts in Nigeria, as a matter of public policy, do frown at the use of restrictive terms in licensing contracts for the wear the same garb as that of restraint in trade.  In this guise, the Patents and Designs Act (1970) under section 23(3) makes such restrictive terms null and void to their inconsistencies:

“Any clause in a contract for a licence under sub-section (1) of this section is null and void in so far as it imposes on the licensee in the industrial or commercial field restrictions which do not derive from the rights conferred by the relevant patent or design or are unnecessary for safeguarding of those rights”.

Parties to an agreement have to exhaust all avenues of rights regarding the intellectual property, depending on the branch of intellectual property law, in order to avail themselves of the best position that there is… In such a case, inquiry has to be made as to related books in the market, for instance, and the charges.  Often, custom or statute fix right such as percentage to charge.  In case of branch patency, designs and trademark the licensee may wish to know the date of invention, true and first inventor, mark and date of registration.  In the curse of investigation, he may discover that the mark has been removed from register because of non-use and lapse and that the matter is embedded in part B and not A of the Act, and that the last certificate is available, renewable and time remaining.

Consideration is a vital element in a royalty contract, as in all contracts, absence of which voids the contract and makes it not binding on parties concerned.  In the case that a licensor grant a licence the right to practice the invention, e.g. a named poetry book, Midnight Lamp, claimed in the patent there is a return of consideration that the licensee, e.g. the publishers (Bookcraft) agrees to give to the licensor e.g. the author (BM Dzukogi).  The agreement may provide that the royalty is a price for a specific quantity sold, otherwise it is often a percentage of sale after sundry deductions, e.g. VAT.  It also provides whether it will be paid monthly, half-a-year, or yearly, otherwise it is often pegged to a percentage, often statutory.  In the absence of any agreement, implied or specific, the courts will go for the statutory.

Where a licensee (Craftbook), or licensor (Dzukogi) fails or neglects to keep to the terms provided in the contract, the contract becomes terminated according to a relevant clause.  Where there is an indemnity issue, a clause will state the party to indemnify.  It is also reasonable to include what is often termed Best Endeavours Clause, by which clause the law means the grantor while grating an exclusive right, may wish to have some means of ensuring that the licensee (our dear Bookcraft) will act diligently and honestly in exploiting the license and it is often interpreted in the courts to mean Bookcraft does what is reasonably expected in the circumstances of the business.  In the case of default by dint of bankruptcy, flagrant abuse of right, insolvency or breach of any of the major terms of the licence, there may be an automatic termination; otherwise, there tend to be an arbitration clause.  I have already shown what significance a Settlement House will be for the state when it takes off.

The sorry plight of the book market in Nigeria is that the author views the publisher as a cut-throat Shylock, merciless, holding a scythe and ready to take advantage of the author’s lack of finance to remove the head of the author.  In Nigeria, the culture is to the effect that the author foots his bill.  For example, an author in belligerent Maiduguri, after paying a fee which often runs in to four hundred thousand (N400,000:00) depending on the width, paper and picture content, pays his fare to Ibadan, finds an attorney to stand on his behalf, pays lodging for the days that he is to spend entering into the contract.  Since his book is likely not among the prescribed texts of established examination bodies such as WAEC, NECO and NABTEB, the collateral security which his book should serve turns out a jeopardy; for if he collected debt, he is expected to pay and he cannot pay, since, in strict terms, he is the publisher as well as the indemnifier in case of loss, such as accident, and the publisher is a mere printer.  Thus, it is common practice in Nigeria to see authors with a cargo of their books and of those of his peers in the car-boot and also in display on the rear carrier.  Thus, the author in Nigeria is a publisher of his books in his bag, boot, by moving to schools, bookshops, symposia and workshops, and reading sessions.  He himself is in a belligerent state, sapping his spirits to write more books, with the bitter experience of the poor market condition owing to the low and poor employment level which hardly gives in to reasonable disposable income.

A reading culture to get entrenched, the government has to raise the standard of living.  Technological viewing gadgets are often viewed in argumentum advercodian in quarters as detrimental to reading culture while they could actually foster in the face of a raised standard of living.  The human development index (HDI) of Nigeria is said to be very low, not competitive at all.  Nigeria is said to have ranked 158 out of 177 countries surveyed in 2008, though Niger State ranked the 8^th in Nigeria and the highest in the North, (Human Development Report, 2008).  Some 60% of Nigeria’s over 140 million people live below poverty line and have limited access to basic amenities such as portable water, comfortable housing, basic education, security and sustainable means of livelihood.  A raised standard of living and increased employment will do magic in Niger State reading culture and raise it by a leap, as one however educated cannot read in a rumbling stomach.  All talk on expansion of facilities, institutions and number of them will create a negligible impact.

Don’t Copy Another Person’s Work!

Another obvious minus on the book industry is plagiarism.  The question tends to be raised what amount of words would amount to that literary sin of copying another writer’s work.  Section 5(2) of the Copyright Law provides that an act to amount to infringement it shall be in regard to the “the whole or substantial part” of the work on which copyright has been alleged.  It is a fundamental rule in copyright, luckily, that it need not be carried out in relation to the whole work or other subject matter.  Whereas the law makes reference to “substantial”, it fails to define what it means by that.  Albeit, it is succinct that the value of the original work is diminished if very much is taken or appropriated and it may constitute piracy pro tanto. Consider the number of words in J. Pepper-Clarke’s short poem, Ibadan, Gabriel Okara’s Moon in the bucket, or Kofi Awoonor’s Cathedral and the long poem Amagoduka at Glencoe Station by Oswald Mtshali, Cattle Egret by Okot p’Bitek, or A Song for Ajegule by Niyi Osundare.

However, if the courts have decided that in piracy case, what is vital is the quality of the infringement and not the quantity and to that effect, there may be infringement still even when the quantity is but a tiny portion of the whole (Colin R. Munroe, Television Censorship and the Law).  For example, the use of five hundred words from a four hundred and fifty page book may be far less damaging than the use of three lines from a five-line poem (vide, Don R. Pember).  

In illustrating this misnomer, Lord Cottenham in Bramwell v. Halcom (1936) 3 My & Cr.737 chided: 

“When it comes to a question of quantity, it must be very vague.  One writer might take all the vital part of another’s book, though it might be but a small proportion of the book in quantity.  It is not only the quantity, but the value, that is always looked to.  It is useless to refer to any particular case as to quantity”. 

A glean of the gamut of cases show that, it is a construction of the whole aspect of the work and not the quantity that is to be taken into consideration, otherwise great injustice will be meted out to the parties.

Be Fair in Your Dealing

The issue of fair dealing may crop up.  Fair dealing permits the copying of an original creation in which copyright is held for the purpose of criticism, comment, news reporting, teaching, scholarship and research.  The American Copyright Law (1976) uses Fair Use, instead of Fair Dealing and the statute declares the following to be considered when determining what constitute fair use:

a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

b) The nature of the copyright work;

c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole;

d) The effect of the use upon the potential market for or value of the copyrighted work – is the use competitive or non-competitive?

In England, erudite Lord Denning had this to say:

“It is impossible to define what is ‘fair dealing’.  It must be a question of degree.  You must consider first the number and extent of the questions and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them.  If they are used as a basis for comment, criticism or review, that may be a fair dealing.  If they used to convey the same information as the author, for a rival purpose, that may be unfair.  Next, you must consider the proportions.  To take long extracts and attach short comments may be unfair.  But short extracts and long comments may be fair.  Other considerations may come to mind also.  But, after all is said and done, it must be a matter of impression, as with fair comment in the law of libel, so with fair comment in the law of copyright.  The tribunal o f fact must decide”.

In the English case of Bradbury v. Hotten (1872) L. R. Ex.1, The Man of His Time was published and the reason for publication was to illustrate the career of Napoleon III by caricature derived from leading English and foreign illustrated papers.  Nine caricatures much reduced sized but with their original headings were copied from nine numbers of a magazine.  It was established that the selections had been taken for the sole purpose of illustrating the career of Napoleon III, but while admiring that limited extracts might be taken from copyright works for a fair purpose of the kind, the court arrived at the conclusion that the defendants had published, namely, to excite the amusement of readers and had thus gone beyond the privilege of fair quotation.  A judgement of piracy was arrived at.

Don’t Forget Acknowledgement

Acknowledgement, obviously, will not completely exculpate, that is, remove, from liability where it is excessive, for it will cross the boundary to piracy, selling the work of another as if it were yours.  Obviously, in this case, we are talking of copyright.  First arrival for an ISBN may make it and especially if he gives out the work on demand to an archive. The onus is always on the defendant to prove that the work in dispute is truly his and not directly or indirectly copied from the plaintiff.

Men are a spiritual gadget with various waves within reception and one artist’s thought process may easily be captured elsewhere.  So, sometimes, great injustice may be done to the defendant who grew up with a lot of learning assimilating whatever he hears that ultimately becomes indistinguishable with his original ideas.  In the circumstances of a prior knowledge absorbed instinctively, what is an original idea become difficult; but as it was discussed in Cadieux v. Beauchemin, Marg. Cop. Cas 4 (1901), to the effect that where in such circumstances coincidental errors appear, there will be a presumption of copying which in order for the alleged party to escape liability for copyright infringement, he will have to rebut.  Writers who are avaricious readers would confess that they wrote something they thought original, but which they eventually saw similar lines in existing, their work which they therefore stood to review! Two photographs of the same scene or person, for example, may be almost identical, and so may two mathematical tables or two directories, but in every case each may have been made without reference to the other.  It is thought that there can be no doubt that, in all cases, where neither works has been taken from the other, there is no infringement, however great the similarity… (Copinger and Skone James, 1^st ed., Sweet & Maxwell, 1980, para. 457 at 176).

The issue also of unconsciously copying the work of another may be problematic, and Lahore provides certain ingredients to be considered:

a) the degree of familiarity with the plaintiff’s works;

b) the character of the work, particularly its qualities of impressing the minded memory;

c) the objective similarity of the defendant’s work;

d) the inherent probability that the similarity could be due to coincidence;

e) the existence of other influence upon the defendant; and

f) the quality of the defendant’s own evidence.

Yet Your Work is Closely Similar to Another Person’s Work!

The 1983 Aba piracy case that the popular Longman Publishers long established in the country, lost clear case of piracy against vendors of pirated books as the Magistrate Court ruled that the defendants were illiterates and could not have been expected to be aware that they were infringing on copyrights by their act of displaying pirated books for sale; such a case in Nigeria, there would seem to be departure from the established rule that copyright being a proprietary right, in an issue of infringement derived directly or indirectly from copyright work.  The fact that, the defendant was unaware that the work he used belonged to the plaintiff, or was the subject of copyright, will not afford defence.  The furore in Nigeria in this issue is the hydra-headed power of the Illiterate and Infant Protection Law.  However, in all circumstances, lack of knowledge is a relevant issue in deciding whether the plaintiff can claim damages for infringement.

A note of warning need to be made at this point, to the effect that not in all cases that reproduces and published a work that is substantially similar to a copyright work will he be held liable, provided he can show that it was indendently created, (Lahore, Intellectual Property in Australia: Copyright [Sidney Burtterworth] 1977).  Such was the issue in the English case of Ladbrooke Ltd v. William Hill Ltd (1964) All E. R.465 where Lord Reid affirmed that reproduction meant copying and it did not include cases where an author or compiler produced a result substantially similar to the plaintiff’s work by independent work without copying; and in Francis Day & Hunter Ltd v. Bron, where the plaintiffs were the owners of a copyright in a musical work titled ‘In a Little Spanish Town’. 

From 1926, it was extensively exploited in form of sheet music and records and by broadcasting, but in 1959, a Peter de Angelis composed a musical work called ‘Why’ which was published by the defendant in who owned the copyright.  The allegation of the plaintiffs was to the effect that the work occasioned an infringement of copyright as a reproduction or an adaptation of a substantial part of ‘In a Little Spanish Town’.  After the plaintiff’s position suffered rejection and they appealed to the Court of Appeal, the court there in rejecting the position and dismissing the appeal provided two vital elements for the construction whether there is substantial infringement:

a) There must be sufficient objective similarity between the infringing work and the copyright work, or a substantial party of it, for the former to be properly described as a reproduction or adaptation of the latter, although not identical with it;

b) The copyright work must also be the source from which the infringing work is derived, although it need not be a causal connection between the copyright work and the infringing work.

Apology

The Intellectual Property Law is to protect owners of works, not to undermine them by prosecution.  Knowledge of the law is vital for owners of works, especially writers, in order to assume full benefit.

Further Readings

JM Nasir (1999); Common Licensing Agreement in Intellectual Property, Vol.3 No.3 JPPL (1999);

Mazi Sam I. Ohuabunwa, July (2010); Time for the Evolution of a New Nation, Global Prints Concept, Lagos;

Osita Eze (1998); Study on the Right to Education in Nigeria, Shelter Rights Initiative, Lagos;

Eghosa Osaghae; CASS Occasional Monograph No.2 – op cit., at p.33:

“Perhaps the most popular formula of ethnic management today, which Nigeria, Ethiopia and South Africa is the federal character principle.  It is a distributive principle which is aimed at preventing the domination of government and its resources by people from only one group or a few groups and at guaranteeing to every group, access to power and resources (Ekeh and osaghae, 1989).

In essence, federal character is a variant of the consociational principle of proportionality which is called quota system or ethnic arithmetic formula elsewhere (Onyeoziri, 1989).  Compare this with America Affirmative Action for protection of Negro and so-called coloured peoples.

Yemi Osinbajo & Kedinga Fogam, Nigerian Media law.  Albert Belyaev (1975), The Ideological Struggle and Literature.