3. Chapter 3 Occluded trajectory
3.2. Experiment 1 1 Introduction
According to the Nigerian Act, „Artistic Work‟ includes, irrespective of artistic quality, any of the following works or works similar thereto: paintings, drawings, etchings, lithographs,
134 Ibid. Section 102 (a) (2).
135C.R.A.N. Section 51; A William, „Has Copyright had its Days‟, International Business Lawyer, April, 1999, Vol.27. No.4. p.148.
136 C.R.A.N. Section 1 (2) (b).
137 C.R.A.I. Section 13; C.D.P.A. Section 1.
138 U.S.C. Section 102 (a).
139 C.R.A.I. Section 13 (2); U.S.C. Section 102 (a); & C.R.A.N. Section 1(2) (b).
42 woodcuts, engravings and prints; maps, plans and diagrams; works of sculpture; photographs not comprised in a cinematograph film; works of architecture in the form of building models;
works of artistic craftsmanship; pictorial woven tissue and articles of applied handicraft and industrial art.140 It must be pointed out that the category of works protectable as artistic work under the Nigerian Act is not closed, hence, the use of the expression „or works similar thereto‟. This phrase must therefore be given its ordinary meaning when construed to accommodate works like chat and designs within the meaning of artistic work. What is of utmost importance is that whatever type of work that is sought to be protected as an artistic work must not contravene the relevant provisions of the Act. This Section provides that an artistic work shall not be eligible for Copyright if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by an industrial process.141 What this means is that if an artistic work was not intended for industrial multiplication, it will be protected under Copyright whether or not it could be a proper subject of a registered design. Thus, a right owner might decide to bring his artistic work under Copyright where he perceives that the requirements for protection under the Act are more stringent; or where the duration of protection accorded is shorter under the English Act.
Moreover, the Nigerian Act does not define the term „industrial multiplication‟. Asein lamented that since the Act expressly defines artistic work to include „works of architecture in the form of building models‟, such architectural models are not to be confused with other models or patterns intended for industrial application.142 In Ukaoha v Broad-Based Mortgage Finance Ltd., the plaintiff‟s Copyright claim in a 17-story building model was rightly upheld by the Court as a work of architecture.143
140 C.R.A.N. Section 51.
141 Ibid. Section 1(3).
142 J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 69.
143 [1992] 2 F.H.C.L.R. p.477; M Minnow, „Library Digital Table‟, http://www.copyright. com/Digitization
Table. Htm. Accessed 10/10/17.
43 A situation may however arise where at the time the artistic work came into existence, there was no intention that it will be multiplied by an industrial process, but after being protected as an artistic work, it was later multiplied by an industrial process. In the only known case where such a situation arose, the Court held that where Copyright had come into existence in respect of artistic drawings, the fact that those drawings were subsequently used or were intended to be used as models or patterns to be multiplied by an industrial process, and thereby becoming eligible for protection under the Registered Designs Act, 1949 or its predecessor, would not lead to a forfeiture of the Copyright.144 It is however doubtful whether this judicial decision will be applicable to Nigeria. This is because the present Copyright Act of Nigeria is narrow as far as artistic work is concerned. The only determinant factor as to whether an artistic work should be protected under Copyright or as a patent is the intention of the artist at the time of making the work. However, the Act does not leave any guidance as to what qualify as „industrial multiplication‟. It is submitted that this omission will obviously occasion a miscarriage of justice in cases involving breaches of Copyright in Artistic works.
It is therefore suggested that the Act be urgently amended to provide the real intention of the drafters of the Act on what constitutes „industrial multiplication‟ and to separate the works that should be protected as artistic works under the Act, and the works that should be protected as designs under the Patent and Designs Act. In the proposed amendment, the phrase „irrespective of artistic quality‟ should also be expunged from the Act. This is because it is a source of confusion and leaves no doubt that any form of art is artistic work. This phrase also places uncertainty as to what qualifies as an artistic work.
It is observed that artistic works under the India and the English Acts are similar to those under the Nigerian Act above discussion.145 Therefore, all the discussions under the Nigerian Act regarding artistic works are hereby adopted. On the other hand, the U.S. Act neither
144 King Features Syndicate Inc. v O.M. Kleeman Ltd. (1941) A.C. p.417.
145 C.R.A.N. Section 2 (d) ; C.D.P. A. Section 4.
44 expressly provides, nor defines artistic work. It only provides for the protection of pictorial, graphic and sculptural, and architectural works which ordinarily fall under artistic works, under the same section but in different paragraphs.146 It is also clear that the works protected by this Act are not as broad as artistic works protected under the Nigerian Act. For example, it does not make mention of photographs, works of craftsmanship, articles of applied handicraft, industrial arts, etc. It is therefore suggested that the U.S. Act be urgently amended along the pattern of the Nigerian Act.