Discussion

According to the Nigerian Act, „sound recording‟ means the first fixation of a sequence of sound capable of being perceived aurally and capable of being reproduced but does not include a sound track associated with a cinematograph film.¹⁵³ This clearly shows that a sound recording is to the ear what a cinematograph film is to the eye. Again, it is evident that a sound track associated with a cinematograph film forms part of the film and protected not as a sound recording, but as part of the cinematograph film. It therefore follows that even though a sound track associated with a cinematograph film is protect as part of the film, any subsequent recording made therefrom or simultaneously as the sound track will qualify as a sound recording and no longer part of the cinematograph film. The term „first fixation‟ used in the definition of sound recording implies that sound recordings must be fixed for it to enjoy Copyright protection. It should be noted that the aforementioned definition covers sound recordings on audiocassette tapes, compacts discs, computer discs, memory cards and other forms of sound corners. Other aspects of the conditions for eligibility in relation to works have been considered in details in the preceding sub-topics in relation to musical works and the arguments so canvassed apply to sound recordings mutatis mutandis. Hence, there is no need to revisit same in order to avoid unnecessary duplication and repetition.

152 U.S.C. Section 101.

153 C.R.A.N. Section 101; H Stratman, „Protection of Software Titles under the New German

Trademarks Act‟ Trademark World, Issue 79, August, 1995, p. 11; M Minnow, „Library Copyright Liability and Pirating Patrons‟, California Library Association,

http://www.cla-net.org/resources/articles/minow pirating.php. accessed 10/10/17.

47 It is submitted that the protection of sound recording under the Nigerian Act is a surplusage and therefore highly unnecessary. This is because such works have already been protected either as a musical work or a cinematograph film. This duplication may be a source of confusion as litigants may not readily make up their minds as to the actual section of the Act that is breached or under what heading to seek redress. This is further worsened by the fact that the Act does not define what sort of sounds that can come under sound recordings. It is therefore suggested that the Nigerian Act be amended to define the kind of sounds contemplated by the Act in relation to sound recording; or to protect sound recording either as part of cinematograph films or musical works.

It is observed that the protection of sound recording under the Indian, U.S. and English Acts are the same as under the Nigerian Act.¹⁵⁴ However, under the U.S. Act, for any work to be protected, it must first be fixed for the first time.¹⁵⁵ On the other hand, though the English Act does not use the expression, „first fixation‟, it provides that Copyright does not subsist in a sound recording which is, or to the extent that it is a copy taken from a previous sound recording.¹⁵⁶ This clearly shows that there is a requirement of originality and fixation as in the Nigerian Act. However, under the Indian Act, no mention of first fixation was made in relation to a sound recording. It is suggested that this Act be amended along the line of the other Acts above discussed.

154C.R.A.I. Sections 2(XN) & 13; U.S.C. Sections 101 & 102 (a) (7); M Minnow, „Library Digital Table‟, http://www.copyright. com/DigitizationTable. Htm. accessed 10/10/17.

155U.S.C. Section 101; K Cushla,„Rethinking Copyrights for the Library through Creative Commons Licensing‟, Library Trends 58, No. 1. (Summer 2009) 106.

156C.D.P.A. Section 5A (2); A Efrati, & J Trachtenberg, „Judge Rejects Google Books Settlement‟ Wall Street Journal, March, 23, 2011,

http://online.wsj.com/article/SB10001424052748704461304576216923562033348.html.

accessed 30/11/17.

48 2.3.6 Broadcasts

As earlier stated in this work, „broadcast‟ means sound or television broadcast by wireless telegraph or wire or both, or by satellite or cable programmes and includes re- broadcast.¹⁵⁷ This shows that it is only sound or television broadcast by wireless telegraph or wire or both or by means of satellite or cable programmes that are protected. The keywords involved in this definition are wireless telegraph, cable programme and satellite. Accordingly, wireless telegraphy means ‘the emitting or receiving of electromagnetic energy of a frequency not exceeding three million megacycles a second, over paths which are not provided by any material substance construed or arranged for that purpose‟.¹⁵⁸ Cable programmes means „ visual images, sounds or other information sent by means of a telecommunication system otherwise than by wireless telegraphy for reception; at two or more places; whereas for simultaneous reception or at different times, in response to request by different users; or for presentation to members of the public‟.¹⁵⁹ The Nigerian Act does not make any mention of fixation or first fixation in relation to broadcast as is the case with the other protected works.

It is submitted that this omission may confuse the public as to whether the requirement of originality and fixation are not applicable to broadcasts. It is further submitted that in the absence of the express requirement of originality and fixation, it will be difficult to establish a case of violation of broadcast especially if the infringer claims that he did not receive the broadcast from the plaintiff. It is therefore suggested that the Act be amended to expressly provide for the requirement of originality and fixation as a condition precedent for the protection of broadcasts.

157 C.R.A.N.Section 51.

158 Wireless Telegraphy Act, Cap W5, Laws of the Federation of Nigeria, 2004, Section 2.

159 C.R.A.N. Section 51 (1); H Josh, „HarperCollins Put 26 Loan Cap on E-Book Circulations‟, Library Journal, (February, 25, 2011)

http://www.libraryjournal.com/lj/889452-264/harpercollins puts 26 loancap.html.csp. accessed 18/09/19.

49 It is noted that the protection of broadcasts under the English and Indian Acts are similar to that of the Nigerian Act.¹⁶⁰ However, it seems that the concept of broadcast under the Indian Act is broader than that under the Nigerian Act. According to the Indian Act, „broadcast‟

means „communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast‟.¹⁶¹ It is therefore not in doubt that so long as sounds or visual images are communicated to the public by wire or wireless diffusion, it will amount to broadcast. Thus, the showing of a movie in public will qualify as a broadcast under the Indian Act. So is the playing of recorded music and sound tracks. Furthermore, broadcasts are not distinguished from the other related works such as musical works and sound recordings by the Act. It is therefore suggested that the Indian Act be amended to embrace the definition of „broadcasts’

similar to the provisions of the Nigerian Act.

It is however observed with shock that the U.S. Act does not expressly provide for the protection of broadcasts, and does not even mention it even by way of definition. It is suggested that the Act be urgently amended to make provision for the protection of broadcasts along the line of the Nigerian Act.

It must however be pointed out that the other provisions relating to protectable works as contained under the English and U.S. Acts such as computer programmes and written tables shall not be considered in this work, reason being that such works are subsumed under other works protected under the Nigerian Act, as discussed above.

160C.D.P.A. Section 6; K Smith, „Streaming Video Case Dismissed‟

http://blogs.library.duke.edu/scholcomm/, 2011/10/04/streaming-video-case-ismissed. accessed 30/11/17.

161 C.R.A.I.Section 2 (d).

50 2.4 Criteria for Copyrightability

For a work to be protected under the jurisdictions under consideration, it must pass some tests prescribed by law. This is because Copyright law does not protect mere ideas but rather, the expression of such ideas. For example, the U.S. Act provides that „in no case does Copyright protection for an original work of authorship extend to any idea, procedure, process, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work‟.¹⁶² In the same vein, the Nigeria Act expressly provides for eligible works which shall be protected as works upon the fulfillment of certain conditions stipulated in the Act,¹⁶³ a literary, musical or artistic work shall not be eligible for Copyright unless sufficient effort has been expended on making the work to give it original character; and the work has been fixed in any definite medium of expression now 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.¹⁶⁴ This provision incorporates the two fundamental concepts of originality and fixation which also operates in the other three jurisdictions under consideration.¹⁶⁵