“A day will come, when, in the eye of the law, literary property will be as sacred as whiskey, or any other of the necessaries of life.” — Mark Twain, speech in Montreal, Quebec, 1881.
The world has come a long way since Mark Twain and others like him lobbied for intellectual property rights for authors. Indeed, it has even seen authors (e.g. J.K. Rowling and James Patterson) become billionaires from exploitation of their works. But this article is not about becoming a billionaire from your creative efforts (although this author wishes he knew how to do that). It is not that ambitious. Rather, it seeks to answer the humble question of why, despite the existence of copyright law in Nigeria, authorship is still not a safe career path for anyone planning to provide for themselves and their family. It takes inspiration from other jurisdictions in finding a solution to this problem and urges authors to be better activists for themselves.
Although no country’s copyright law guarantees anyone billions of dollars, authors in Nigeria are generally happy that at least, Nigerian copyright law ensures they get certain rights for their creative efforts. Provided the conditions in the Copyright Act are met, all original works are protected. This law exists not only to grant exclusive rights to authors in order to protect their work, but to also promote creativity and learning. In this vein, individuals are granted a copyright term for their lifetime, plus 70 years after death. Also, agencies such as the Nigerian Copyright Commission do their best to fight piracy and educate the masses about copyright law.
There is no doubt that these legal and regulatory frameworks are commendable. Indeed, Nigeria’s thriving entertainment industry may have the law and relevant agencies to thank. However, there is a pressing issue yet to be addressed: Authors in Nigeria often suffer from significant inequality of bargaining power and asymmetry of information. As a result, many enter into unfair contracts with publishers and the likes, thereby receiving poor remuneration for their work.
The doctrine of freedom of contract, which prevails in contract law does not tackle the problem of unfair distribution of revenues effectively. The duration of copyright means nothing to the author, where, under the pressure of weak bargaining power, he already assigned it to another party. Sadly, it seems the digital revolution only further weakens the position of Nigerian authors, as they not only have to bargain with publishers at home, but also with even more powerful digital platforms located half way around the world.
Neither the Copyright Act nor the 2015 Copyright bill addresses this shortcoming. Also, several experts hold the view that general contract law doctrines do not help much, and registration with a collecting society is only medicine after death, when the right has already been assigned. So, how are other countries addressing this problem?
In Germany, notwithstanding the terms of any contract, authors have an inalienable right to ‘reasonable’ remuneration, taking into account factors such as the frequency, extent, time and duration of use of the author’s work. In the Netherlands, the equivalent right is to ‘fair’ remuneration. If contracts don’t meet these minimum standards, authors are entitled to extra payment regardless of the terms of the contract.
Also, since it is not much use to have a right to ‘fair’ payment if there is no way of knowing how much that is – and whether one is getting their fair share, a number of nations have enacted transparency rights for authors. In Germany, for example, authors have the right to information about their works’ exploitation and resulting revenues – not just from their contracting partners, but from relevant third parties as well.
Further, there is the right to reversion upon failure to exploit (aka the ‘use-it-or-lose-it’ provision). German law, for example, provides that an author has an unwaivable right to terminate a contract and get their rights back if there has been no appropriate exploitation within two years of a contract being signed.
However, such provisions are absent from the Nigerian copyright law. What can authors in Nigeria do? Just as one cannot survive as a real-estate agent without some grasp of property rights, you cannot thrive as an author without appreciating copyrights. The great English author, Charles Dickens, knew this. Authors in Nigeria ought to know this, too. Google is replete with reliable sources showing that during his lifetime, Dickens contributed a great deal to the field of copyright law. For example, when copyright protection was territorial, Dickens vehemently promoted the idea of international copyright law. Thus, when works by writers – such as himself – whose works were not protected outside the British empire, were plagiarized and/or pirated without legal consequence, he did not stand aside and do nothing.
Even after his death, Dickens activism led to some positive changes in the law. Some sources state that Section 5(2) of the United Kingdom Copyright Act of 1911 called ‘Dickens Clause’ came about as a result of grievances between administrators of Dickens’ estate and his publishers. This clause provided that copyrighted works granted to a third-party automatically revert to the author’s heirs, successors, or legal representatives 25 years after the death of the author under the following circumstances: (i) the author is the first copyright owner of the work, and (ii) the grant being terminated (e.g., the publishing agreement) was made by the author (grants made by the author’s heirs are not terminable under Copyright Act of 1911).
The said Copyright Act of 1911 applied to all of the so-called “British Reversionary Territories” including Nigeria – that is, all countries that were part of the British Commonwealth as of 1911. However, it may surprise you to learn, that despite its benefit to the heirs of authors, this clause was removed from Nigeria’s first indigenous Copyright Act (passed in 1970). Accordingly, authors in Nigeria were no longer able (and still are unable) to ensure that their property is passed to loved ones despite earlier assignments.
By the way, Dickens Clause proved helpful to the heirs of Solomon Linda from Zululand (the original composer of the hit song ‘The Lion Sleeps Tonight’) in their case against Walt Disney (see the Netflix documentary “The Lion’s Share”).
Hopefully, Dickens’ example should inspire authors in Nigeria to be more proactive in protecting their interests. Authors must not only applaud policy considerations, but must also do their best to ensure that same is actually reflected in the provisions of the law. As authors around the world generally face similar problems when it comes to receiving fair compensation for their work, authors in Nigeria would not be considered Oliver Twist for desiring similar protections granted to their contemporaries from around the world. And they deserve it. After all, more and more Nigerian authors are becoming internationally recognized.
Thus, just as Dickens Clause still exists in many parts of the world, a Wole Soyinka Clause that grants the right to share in the proceeds of unexpectedly successful works should not be too much to ask (essentially, this right gives authors the right to additional payment where works are so successful that what was initially agreed becomes ‘seriously disproportionate’ (Netherlands) or ‘evidently disproportionate’ (Germany) to the actual revenues).
This is an ideal time to reflect on how the law should protect authors – if it really wants to. With the 2015 Copyright bill still pending, it would be such a shame if Nigeria misses the opportunity to make significant impact after such a long period of stagnation.
Seun Lari-Williams is passionate about copyright law and fair compensation for authors. His essay on balancing bargaining powers in the digital streaming economy won the First Prize in the third edition of the Association Littéraire Et Artistique Internationale (ALAI) European Authors’ Rights Award. He is a graduate of the Munich Intellectual Property Law Center, Germany. He has extensive experience working as a litigation lawyer in Nigeria. He is also an award-winning poet. If you need to know which action movie you’re missing out on, or you want recommendations on great poems to read, talk to Seun.
Seun Lari-Williams has vary well explained about copyright law and fair compensation. really passionate. keep it up.
D N Khanna – New Delhi India