A historical investigation as to the emergence of modern day copyright law can be traced to the primeval rights and benefits bestowed on copiers and printers of books. This was made more evident by the British Statute of Anne 1710 which vested rights on copies of printed books on the authors/purchasers of such works. Copyright has over time evolved to include the protection of other works, which include sound recordings, photographs, literary works etc. Copyright can be defined as a property or exclusive right granted to an author or creator of an original work which subsists in original literary works, dramatic, musical or artistic works, sound recordings, cinematograph films, broadcasts and typographical arrangement of published editions. Copyright protection subsists in accordance with title in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.
In Nigeria, our first indigenous enactment regulating the issues governing copyright was the Decree No 61 of 1970, which was promulgated after the end of the Nigerian civil war. The Decree was plagued with defects and inadequacies and as a result, the Federal Government promulgated into law, the Copyright Decree No. 47 of 1988 which is now known as the Copyright Act Cap C28 Laws of the Federation of Nigeria, 2004.
This article shall be aimed at outlaying a gaping lapse in our laws governing the protection of copyright, more specifically data related rights as well as juxtaposing the Nigerian copyright regime against the backdrop of other enactments in certain jurisdictions, using the United Kingdom as case zero.
We must first pay salute to the dictum of Belgore J in the case of Oladipo Yemitan v. The Daily Times Nigeria Ltd., when he stated that “the right of a man to that which he had originally made is an incorporeal right and must be protected”.
It isn’t far-fetched to say that science has been the greatest invention since man figured the intricacies governing the crude mechanism to making fire from rubbing stones together. More recently, we can attribute the success of any invention in almost any and all field(s) to the major and domineering assistance of the computer viz-a-viz electronic or digital inventions. With the invention of computers, histories, records and archives have never been so easily accessible, with the ability to retrieve data and information at the click of a button. It is in this path that we attempt to focus on the inadequacies fostered by the Copyright Act with regards to lapses in protection rights accorded to authors and creators of digital works and art in Nigeria.
From 2000 till date, digital innovations and technology has contributed billions of naira into the Nigerian gross domestic income. This has in turn resulted in growth of our economy, creating of jobs amongst other things. Most recently, we have experienced a boom in the area of e – commerce, a sector that was hitherto alien to the economy of a developing country. In light of this, it is paramount to reinforce the principles and tenements of the Copyright Act as it relates to protecting rights and works over the internet.
A sojourn of recent cases on intellectual property illustrates a prevalence of copyright infringements suits claimed to have been perpetrated on electronic platforms. A review of various journals and articles seem to point to the fact that Nigeria is a signatory to a plethora of conventions and treaties which ought to sufficiently deal with the lacunae of the Copyright Act. However, we are still faced with a cancerous mountain in the form of “un-enforceability” due to the recalcitrant fact that most of these treaties have not been domesticated. Irrespective of its ever outstanding adaptation to technology, which amongst other things puts Nigeria at top economy through-out Africa, it is however appalling to note that a survey issued by the Nigerian Copyright Commission in conjunction with The Ford Foundation placed current piracy rate at 58%, this factored in software and copyright infringement, which seem to be on the steady rise.
The main focus of this write-up shall be on the protection of database rights as a dynamic and hybrid inclusion into the collative rights protected by the principle of copyright. A database is defined by article 3 a(1) of the Copyright, Designs and Patents Act 1988 as a “collection of independent works, data or other material which are arranged in a systematic or methodical way and are individually accessible by electronic or other means.”
In line with this, a database can be interpreted to include contents of a company’s hard drive built up over time, collation of private/official e-mailing list, a company’s list of customers, card indexes or directories whether held electronically or in paper form. It should be noted that for copyright protection to apply, the database must have originality in a selection or arrangement of the contents and also there must have been a substantial investment in obtaining, verifying or presenting its contents.
Investments include financial, human or technical resources expended in the creation of such database. Where a database is made or created by an employee in the course of his employment, the employer will be regarded as the “maker” and first owner of the database right subject to any agreement between the parties to the contrary. Databases are treated as a class of literary works and may therefore enjoy the benefits of copyright protection. It is therefore pertinent to amend our laws to reflect database protection, as this is a prevalent occurrence to which we deal with daily.
The importance of databases is visible in our offices, banking system, Government arms/ parastatals etc., which have mostly become digital compliant relying more than often on a computer based driven workforce. Most of these entities rely on their databases to carry out their basic and daily functions begging the relevance of an amendment of out copyright laws to cater for database protection. The United Kingdom under the Copyright and Rights in Database Regulations 1997, implemented into UK law the provisions of the 1996 EC Council Directive on the legal protection of databases. This subsequently came into force on the 1 January 1998 by way of “database right”. Database right can be violated by means of “extraction” which in relation to any content of a database, is the permanent or temporary transfer of those contents to another medium by any means or in any form. By this, subject to the provisions of the Act, a person infringes database right in a database if, without the consent of the owner of the right, he extracts or re-utilizes all or a substantial part of the contents of the database. Furthermore repeated, systematic extraction or re- utilization of insubstantial parts of the contents of a database might also amount to a breach of database rights.
In line with the aforesaid and in defining the limitation to database right, recourse must be made to the decision of the European Court of Justice (ECJ) in the case of British Horseracing Board v William Hill giving guidance on the application of the rules relating to database rights. The case involved the accessing of data from the BHB’s database of pre-race information by
William Hill bookmakers which was subsequently displayed on the William Hill website. It was agreed by both parties that the information displayed only consisted of a small proportion to the total database of BHB. BHB argued that the display constituted a breach of their database copy right irrespective of the size of information that was release on the William Hill website. In addressing this principle, the court raised the threshold for infringement when it decided that for an infringement to be deemed substantial, its cumulative effect must amount to the equivalence of a “substantial part” or in relation to the total volume of the content of the database or at least to a serious prejudice to the investment made by the database owner. Hence the Court found that the resources used by BHB in creating the database did not constitute substantial investment in either obtaining or verifying the contents of the database. The Court was also of the opinion that the use by William Hill of the information from the database represented a very small part of BHB’s whole database. There was therefore no extraction or re-utilization of a substantial part in the quantitative sense.
The Act stipulates that the term of protection accorded to database right expires at the end of the period of fifteen years from the end of the calendar year in which the making of the database was completed, Furthermore, if it was published during that period, 15 years from the end of the year in which the database was first made available to the public. If there is a substantial change to the contents of the database, which includes changes resulting from the accumulation of successive additions, deletions or alterations which would result in the database being considered to be a substantial new investment, then the 15 year protection period recommences. In a country like ours, teaming with a vast population of intellectually potent people, one can behold the need for elaborate laws ensuring database protection. Database rights aims at protecting the intellectual creativity of the author, which must be shown to encapsulate skill and labour. We have achieved a benchmarked threshold and hence we are in dire need of enactments outlawing, preventing and punishing database piracy and pillaging. To this end we urge the dismantling of all forms of red-tapism and lackadaisical approach towards statutory development and evolution and reinstate the aforementioned rational, opining that we take a cue from other forward-jurisdictions in incorporating the protection of database rights into our laws.
Tokunbo Orimobi LP is a full-fledged commercial law firm with offices in Lagos, Ibadan and Abuja.