Are AI-Generated Content Covered by Nigerian Copyright Law?

As AI-based content creation tools become more prevalent, questions arise regarding their coverage under Copyright Law. Imagine a situation where an AI-generated image shared on social media was done without the permission of the person who entered the prompts resulting in the image. If disputes arise, before addressing the issue of whether an infringement has occurred, a preliminary question to be answered might be whether such an output qualifies for copyright protection in the first place.

Across the world, jurisdictions have taken different approaches to the question of whether copyright protects AI-generated content. In China, the Beijing Internet Court recently ruled that the artificial intelligence-generated image involved in the case met the requirements of “originality” and should be protected by copyright law (discussed here). In essence, this court held that providing prompts to an AI tool could make the prompter the author of the resulting image. However, in the US, the Court and the Copyright Office have rejected copyright claims for AI-generated works even where created through substantial iterative prompting (discussed here).

While this question is yet to be brought before a Nigerian court, relevant provisions of the law provides some insight.

Nigerian Copyright Law

Section 2 of the Nigerian Copyright Act 2022 provides:

(1) Subject to this Act, the following works shall be eligible for copyright —

(a) literary works; (b) musical works; (c) artistic works; (d) audiovisual works; (e) sound recordings; and (f) broadcasts.

(2) Notwithstanding the provision of subsection (1), literary, musical or artistic work shall not be eligible for copyright unless —

(a) some effort has been expended on making the work, to give it an original character; and

(b) the work has been fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.

(3) Any work that meets the requirements set out in subsection (2) shall be eligible for copyright, notwithstanding the quality of the work or the purpose for which the work was created.

(emphasis added)

While the eligibility and fixation requirements are quite straightforward, the third requirement, i.e., in Section 2 (2)(a) might be tricky to meet in the context of AI-generated works. How would the court determine whether sufficient effort has been expended on making AI-generated content?

Before addressing the question of whether sufficient effort has been expended to make the work original, we should first address the question of who bears the responsibility for making such efforts. The Nigerian Copyright Act does not explicitly mention the requirement of human authorship for copyright eligibility. However, Section 1(a), 28 and 108 of the Copyright Act collectively suggest that copyright can be granted to either an author who is an individual (a human being) or a corporate entity. One can deduce from this that the responsibility for expending effort to make a work original must come from such an author. In this context, the user/prompter of the AI-generated work must therefore be the person who exhibits a degree of creativity or originality.

Next, to the question of effort. In the case of Ifeanyi Okoyo v Prompt and Quality Services & Anor ([2003-2007] 5 IPLR 117-135), the court stated:

It is pertinent to observe that a literary or musical work is not eligible for copyright unless sufficient effort has been expended in making it in order to give it an original character. This is a matter of fact which must be proved by evidence. Save as above, the author of an artistic, particularly, a work of Architecture, is not required to fulfil any other conditions to make his work eligible for Copyright. (p130).

Also, the case of Yeni Anikulapo-Kuti & Ors. v Iseli & Ors ([2003-2007] 5 I.P.L.R. 53-73), which involves the issue of authorship and copyright subsistence in a musical work, should also be noted. In this case, the court held that “a musical work must originate from its author who has expended special skill, and labour in producing it”.

What does it mean for a work to “originate from its author” and what does it mean to expend “skill and labour in producing” a work in the context of AI? Would it include situations where the user sets the creative parameters, provides the prompts, refines the output, makes editorial choices/decisions such as which of the generated outputs are to be published, and so on? I would argue that it would. AI-generative works do not presently prompt themselves into existence from thin air. Therefore, the human element of providing AI-systems guidance, such as the creative influence of the user, would most likely be seen by the court as substantially shaping the resulting output.

Nonetheless, the Nigerian Copyright Act could have benefitted from clearer provisions regarding who is an author. Cameroonian law, for instance, stipulates in Section 7 that the author is unequivocally defined as the individual who not only created the work but also initiated its realization “through an automatic process”. This clear definition establishes a more definitive framework for authorship, ensuring that the creator, whether through direct creation or initiation via an automatic process, is recognized as the holder of the copyright.

Conclusion

As AI-generated content continues to challenge traditional notions of authorship and creativity, Nigerian copyright law, as interpreted by the courts, must adapt to provide clarity and protection for both creators and users, as well as to benefit the Nigerian economy.

About Seun Lari-Williams 27 Articles
Called to the Nigerian bar in 2014, Seun has extensive experience working as a litigation lawyer in Nigeria and as an IP Consultant. He has worked closely with diverse clients in the entertainment industry, helping them innovate faster while protecting their IP. He has also garnered experience working with a patent law firm in Brussels, Belgium. He studied law at the University of Lagos, Nigeria and obtained an LL.M in IP & Competition Law from the Munich Intellectual Property Law Center, Germany. Seun is the 2021 winner of the ALAI European Author’s Rights Award.

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