As a branch of Intellectual Property Law, Copyright protection was created to aid individuals protect their creative works from being copied or exploited in a manner which does not fall within the ambit of the individual’s creative wishes or the exercise of his proprietary rights.
Copyright sets out to protect the creativity of the human mind which is intangible compared to chattel, and other objects capable of legal protection and appropriation, but for Copyright protection to work, such creative process must be tangible to the extent of being a “work”, as was provided for in the Copyright Act of 1988. When such creative process, thought or expression meets this condition, Copyright accords protection to such work, being a full set of divisible rights.
What is Copyright?
A Work is defined in the Interpretation Section of the Copyright Act as including-
“translations, adaptations, new versions or arrangements of pre-existing works and anthologies or collection of works which by reason of the selection and arrangement of their content, present an original character”
Section 1(1) of the Copyright Act goes further to copiously delineate works and classify them into six major categories thus:
A) Literary works;
B) Musical works;
C) Artistic works;
D) Cinematograph films;
E) Sound recordings; and
Section 1(2) of the Copyright Act also posits that for such work to be accorded Copyright Protection, it must fulfil the condition of having the individual expend sufficient energy on such work to give it an original character.
To illustrate, where Mr. A seeks copyright protection for an exercise book that he manufactured, such application for copyright protection shall not be granted, as no amount of distinct creativity had been expended in order to make such work original. Exercise books are filled with pages made up of lines and spaces. It cannot be said that special creativity was used in the production of the exercise book. However, when Mr. B writes a novel and seeks copyright protection, then it shall be granted by reason of the fact that the writing of such novel involved pure creativity which is rewarded by copyright protection.
Section 1(2)b of the Copyright Act states that any work which is to be protected by Copyright shall have a medium of expression which can be perceived by the human senses.
Who Owns Copyright in an Employer/Employee Relationship?
As always, the questions always arise as to who owns copyright in a variety of situations. One of them being the employer/employee relationship.
In normal circumstances, the owner of copyright is the originator of the idea. Howbeit, such owner of copyright is not always the owner of the work. Ownership of the work and Ownership of Copyrights differ.
In Section 10 of the Copyright Act, which exhaustively sheds light on situations involving employers and employees, of which the law has it that where an employee creates a work, and such is done under the course of employment and the contract of employment states that copyright shall vest in the employer, then such employee has no copyright.
Section 10(3) says that proprietors of newspapers retain copyright in respect of works found within the publication, which is part of their usual course of business.
Employers have no rights regarding works by employees which are not made in the course of employment. That is to say that where an employee creates a work and such work is not part of the general duty expected of the employee, then copyright shall vest in the employee, while the employer may retain ownership of the work or not, depending on the terms of the contract of employment.
In determining who has copyright, it is always a matter of principle and procedure to critically examine the contract of employment which sets out the rights, duties and liabilities accruing to both the employer and the employee. Any employee or prospective employee needs to have a good look at his contract of employment, or have a lawyer look at it in order to ensure that he does not lose his copyright to his employer because he was dead to his rights.