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The Creative Entrepreneurs Association Nigeria usually hosts “Creative Sessions” for individuals in the Nigerian creative sector with the aim of discussing issues which affect them. At one of the sessions held at the British Council, Adelphi Founding Partner - Ese Oraka was invited to talk on issues related to copyrights and the creative industry. Considering that there were all kinds of creatives there including fashion designers, music artistes, writers, publishers and animators, the issues raised and the scope of the discussions were diverse.He touched on issues ranging from creativity, to copyrights, culture and commerce. This presentation provides a summary of his thoughts on the various issues.
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Creativity, Copyrights & Commerce
Being Excerpts From a Presentation at the
Creative Entrepreneurs Association of Nigeria
“Creative Sessions”
in Conjunction with the
British Council
Prepared by
Ese Oraka (Partner, Adelphi)
Twitter.com/@eseoraka
Twitter.com/@Adelphi_ip
Facebook.com/AdelphiAfrica
Insightsbyadelphi.blogspot.com
www.adelphionline.com
Summary:
• The Creative Entrepreneurs Association usually hosts “Creative Sessions” for individuals in the creative sector with the aim of discussing issues which affect them.
• At one of the sessions held at the British Council, I was invited to talk on issues related to copyrights and the creative industry.
• Considering that there were all kinds of creatives there including fashion designers, music artistes, writers, publishers and animators, the issues raised and the scope of the discussions were diverse.
• I touched on issues ranging from creativity, to copyrights, culture and commerce.
• This presentation provides a summary of my thoughts on the various issues. Enjoy.
On the Role of Creativity in Nigerian Society:
• There has been significant growth in Nigeria’s Creative Sector in the past 10 years. This is immediately apparent in the Music, Film & Fashion Industries; advertising has been witnessing a new wave of growth with the advent of the New Generation Banks and Telecoms Companies. The Software sector is also witnessing steady and significant surges. The contribution of our creative industry to Export is increasing.
• On a global scale, advancements in Technology have been driven by a large dose of creativity and innovation. Creativesneed to see themselves not as an option but as a pre-condition to Socio-Economic growth and National Development.
On Copyrights:
• Copyrights generally relate to questions of who has the right to Copy and control the distribution of original works. Copyrights protects a literary, musical, dramatic, choreographic, pictoral or graphic, audiovisual, or architectural work, or a sound recording, from being reproduced without permission from the copyright owner.
• The material to be copyrighted must be in a fixed form, anything that is not unrecorded is not Copyrightable. Copyrights do not protect ideas, procedures, processes, and systems, methods of operation, concepts, principles, or discoveries; thus a dance move cannot be copyrighted (because its not fixed), though a video of it could be.
On Copyrights Infringements:
• Infringements of copyrights would include,
copying or reproducing an original work without
permission; creating of a new work directly
derived from the original work, for example by
translating to another language or performing or
displaying the work in public.
On Defenses against Infringement:
• The primary defense against a claim of infringement of
Copyrights is “Fair Use”. Under the doctrine of fair use, a
person is privileged to use Copyrighted material in a
reasonable manner that is to say for limited purposes
such as research, criticism, comment, teaching,
scholarship and news reporting.
On the requirements of Copyrights in Nigeria:
• Copyright Law and Practice is governed in Nigeria by the Copyright Act 1988 (amended in 1992 and 1999).The Copyright Act established the Nigerian Copyright Commission (NCC) which is a Regulatory Agency charged with the responsibility of overseeing copyright issues. Nigeria is also signatory to some international copyright treaties such as The Berne Convention 1886 and the Universal Copyright Convention 1952.
• To copyright an original work in Nigeria, one will pay a statutory fee in favor of the NCC to a designated bank. One would need to fill a form including the nature of the work, year of creation, name of creator and name of the owner of the copyright among other details. The form will be submitted to the Commission along with a copy or copies of the work for processing. If the application is successful the Commission shall present the applicant with a “Notification of Copyright” to the work.
On the impact of Digital Media on Copyrights:
• In my personal opinion, one of the greatest inventions before the internet was the
Printing Press; it provided the opportunity for information to be disseminated in ways
that had never been imagined before. It obviously contributed to the development of
Copyrights Laws, because like we said earlier, copyrights relate to who has the right to
control the copying and distribution of creative work.
• Digital technology coupled with the Internet, has provided the opportunity to copy
and disseminate in ways that the inventors of the printing press and their iterators
could never have imagined. It has disrupted business models. People can now self-
publish their books, create their music and album art and distribute same worldwide,
simply using a computer connected to the internet. This provides opportunities as well
as threats.
• In reality technology has become so creative that even the creative industry and the
laws which regulate it are trying to catch up. The more up-to-date jurisdictions have
made some recent attempts at catching up; there was the Digital Millennium
Copyright Act of 1998 and the more recent US proposed bills, SOPA (Stop Online
Piracy Act) & PIPA (Protect IP Act) which if passed will have further disruptive impact
on Copyrights in the internet age.
On Copyrights law in relation to current realities:
• While our current Copyright Laws are not without its
merits, they have been rendered limited in the light of
Digital Technology, the industry is turning on its head,
new business models and channels are the norm.
• There is a clear and present need for us to bring the
Nigerian Copyrights Laws in line with current realities
particularly with the growth of new media, mobile
technology and access to the internet.
On the Cultural Peculiarities of Nigeria:
• In evolving a copyrights regime for Nigeria, I believe that we need to understand our cultural peculiarities. Piracy is pervasive in Nigeria; one of the main reasons is the fact that many people are not even aware that they are infringing copyrights. Wide spread awareness must be created as an integral part of evolving the law.
• There is also a tendency for Copyright holders in Nigeria to sleep on their rights rather than enforce copyrights through litigation; which has further impact on how much local precedent we have for Copyrights cases.
On emerging issues in Copyrights Law:
• The Nigerian Copyrights Commission is currently
undertaking a review of the Copyrights Act. In
the light of this, they have prepared a draft bill
titled “A BILL FOR AN ACT TO AMEND THE
COPYRIGHT ACT CAP C28 LAWS OF THE
FEDERATION OF NIGERIA 2004 TO PROVIDE FOR
BETTER PROTECTION OF COPYRIGHT IN THE
DIGITAL ENVIRONMENT”
On key revisions in the current draft bill:
Some key areas of revision in the current draft bill relate to
things such as:
• Public Domain in the Internet Age- Section 6,
Subsections 4&5;
• Circumvention of Technological Devices-Section 21;
• Graduated Penalties for Infringement- Section 18 and
• Copyright Registration Processes- Section 14
On if upcoming artistes should copyright their works since unauthorized copying and
distribution could help promote them:
• It is important that artistes protect their Intellectual Property, regardless of whether or not they are new artistes. Even if they are going to wait till they are commercial successes to enforce their rights, they should, at least, have reserved the right to do so.
On how animated works may be copyrighted:
• Animation is an emerging sub sector of the Creative Industry within Nigeria. It is not growing as fast as I would like, even though there is a lot of opportunity. In general animations are protected under the general copyrights of the works in which they feature.
• The real challenge comes when the character assumes a life of its own, independent of the story which originally featured the character. In this instance we would need to go beyond Copyrights to other forms of Intellectual Property, particularly trademarks.
On the need to balance Creativity, Culture and the Commercialization of
Copyrights:
• Creativity thrives on itself; it requires access to previously created works and high levels of collaboration to so thrive. Some have argued that Copyrights Laws as evolved stifle creativity because they create Monopolies of Copyrights which do not allow for further creativity.
• In my opinion, we must see Creativity not as just providing commercial, but also cultural value and the cultural value will only lead to more creativity which will lead to more commercial value and so on and so forth. It’s a delicate dance between the owners and the users. As stakeholders in the creative economy we must constantly seek to find a balance between the Commercial and Cultural values of our creative works.
Thank you
For further inquiries, please contact
Ese Oraka (Partner, Adelphi)
Twitter.com/@eseoraka
Twitter.com/@Adelphi_ip
Facebook.com/AdelphiAfrica
Insightsbyadelphi.blogspot.com
www.adelphionline.com
