How often do you download free software, ebooks, music videos, movies and more online? These days, it is very common to access information and download them completely free of charge. Amazon.com, Smashwords.com, Lulu etc are some of the many websites you can get free ebooks. And who in Nigeria does not know Moviesbobile.com? And for your free software download, Softonic.com, Softpedia are just two of the many free software downloading sites online. Great, right? Of course, but are there implications – legal and even technological implications?
You will agree with me that in the information age where ideas like open source have technologically democratized access to information by providing free and unrestricted access for end users, it is becoming increasingly difficult for copyright and patent owners to get economic rewards for their intellectual sweats. In the world of intellectual property, specifically copyright protection, fair use is becoming the rule and not the exception.
And as web and mobile technology continue to blaze the trail in the race revolutionary inventions that has changed the way man communicates and access information worldwide, policy makers are not unaware of the negative implications these recent developments would have on productivity and inventiveness of authors, inventors and creators generally. It is not difficult to understand that the less the incentive to create or invent, the less the quality and quantity of creations and inventions. Thus, there is need for some kind of balance between access to information by users and economic reward by creators.
This week, we will be looking at the various principles that serve as philosophical justifications for copyright protection.
In the creation of a work, every author expends skill, labour, time and capital. Thus, copyright operates to protect the fruits of ones labour, work, skill or taste from annexation by other people.This means that the author deserves a sort of reward for his intellectual sweat in the production or creation of the work. Therefore, the economic principle flows from the need to protect the pecuniary interest of the author or creator in the intellectual work. In a World Intellectual Property Organisation (WIPO) publication, it was stated that economic rights allows the owner derive financial reward from the use of his work by others.
The economic principle for the justification of copyright has also been recognized in the Nigeria Copyright Act. Section 16(1) provides that in an action for infringement of copyright the Federal High Court can grant all such relief including an account of profit and damages. This is in expectation of the profit that would have ordinarily accrued to the owner of the work if the infringement had not occurred. This statutory provision demonstrates that the legislative intention is to reward the owner of copyright where the infringer has made undue profit from the infringement and the original owner has suffered damage from such infringement.
This principle has received judicial recognition in the case of Adenuga v Ilesanmi Press & Sons Ltdwhere upon an action for infringement by the author against an unauthorised publisher of his manuscript, the Federal High Court awarded, inter alia, account for profit against the defendants.
Natural Justice Principle
The reasoning here is that the fruit of the author’s intellectual sweat must not be seen to be reaped by another, except by authorisation or licence. It is against the principle of natural justice for an infringer to reap from where he has not sown. The judicial recognition of this principle is found in the case of Plateau Publishing House Ltd. v. Adophy, where Uwais JSC, in an action for copyright infringement, said that the court in awarding an account for profit:
“Takes from the wrongdoer all the profit he has made from his piracy and gives them to the person who has been wrong.”
Also, in consistent with the natural justice principle as a basis for copyright, Odunowo J, in Masterpiece Investment Ltd. & Anor. v. Worldwide Business & Ors,while awarding exemplary damages against the defendant for flagrant infringement of the copyright of the author in an article for commercials said:
“On the claim for exemplary or punitive damages, the trend of both judicial and juristic opinion is that the Court may award additional damages for such matters as the author’s reputation or feeling, the vulgarisation of the work, economic loss, unjust enrichment by the Defendant as a result of the act of infringement, the conduct of the Defendant…”
Though similar to the natural justice principle, the moral principle is distinguishable. It is also distinct from the owner’s economic right. Moral rights allow the owner take certain actions to preserve the personal relationship between him and the work as a mother would do to a child, a product of her labour. It is that paternity right of identification to the work which is inherent in the creation of the work. In other words, it is a paternal right that is conferred to the creator of the work and no one else.
This moral right is an inalienable right which prevents other persons from ascribing to themselves the authorship of the work.For example, only Chinua Achebe, the author of the popular African novel, Things Fall Apart,has the moral right to be identified with the book. This is because he has met the criteria for copyright protection as required under the Act.
Section 12 of the Copyright Act 1988 (as amended) recognises this morality principle by providing that the author of a work in which copyright subsists has the right to claim authorship. By virtue of this, the author can object and seek relief in connection with any distortion, mutilation or other modification of, or any other derogatory action in relation to his work, where such action would be prejudicial to his honour and reputation. This has been termed the “paternity right” of the author.
Next time, we will also discuss the fundamental human right principle and the cultural principle as the other two philosophical justification of copyright protection.
 Yemitan v. Daily Times of Nigeria Ltd. (1980) FCHR 186 per Belgore J
 Understanding Copyright and Related Rights, WIPO Publication, (2004) 902, 24 accessed on
 (1991) 5 NWLR (pt 189) 82
 (1986) 4 NWLR (pt 102) 205
 (1990-1997) 3 IPLR 345
 Supra, at 366
 The right of authorship is however subject to the provisions of sections 10 and 11 of the Copyright Act 1988 Cap. C28 LFN (2004) on “First ownership of copyright” and “Assignment and license” i.e the ownership of the work may be vested in the person or body that commissioned the work, while the authorship resides in the creator of the work; and also the author may choose to assign the work to an exclusive assignee or licensee.
 Achebe C. Things Fall Apart, Ibadan, Heinemann, 1958
 S. 1(2) on originality and fixation; and s. 3(1) precisely paragraph (a) on connection – “copyright by virtue of nationality or domicile”.
 Olatoye D., “Copyright Law and Piracy in Nigeria – Legal Issues in the Information Society” a paper presented at Public Lecture Day of Association of Information Resources Management Students, Babcock University, Ilishan, Ogun State on 7th October, 2009. Accessed at http://www.slideshare.net/dejitoye/copyright-law-piracy-in- nigeria/ on July 4, 2011.