OLOTURE; THE COPYRIGHT DILEMMA

UKOMADU C.[1], ELEKWA A.[2] , BADRU Z. K.[3], CHIDI P. N.[4], ADETIMEHIN T. D.[5]

DISCLAIMER: This piece is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and our organization or serve as legal advice. Readers may contact relevant counsel for further legal advice.

This in itself remains the opinion of African Intellectual Property Network and should not be construed or referred to as an expert opinion.

INTRODUCTION

This piece discusses the alleged copyright infringement by Tobore Ovuorie against Ebonylife Media in its recently released blockbuster movie “Oloture” which sought to address a critical social issue of sex trafficking which is prevalent in Africa, using Nigeria as a case study. The discussion begins with attempting to answer the question of whether or not a copyright right exists and on whom the copyright lies? Followed by the issue of whether there was a copyright infringement by Ebonylife Media based on the available facts. The analysis then turns to the question of the alleged promise of 5% profit by Ebonylife media and Finally, to the damages sought by Tobore.

In addressing this dilemma, we need to understand the definition of Copyright under the Nigerian context. Copyright can be defined as the right of monopoly granted to the creator of artistic, literary, musical, broadcasts, sound recordings, and cinematograph films[6] to exploit their creation in any manner they deem fit without external interference.

By extension, for a creation to enjoy the status of being copyrighted, it has to fulfill the two conditions for eligibility under Section 1(2) which are Originality and Fixation in a definite medium of expression. In addressing this dilemma, flowing from the information made available to the general public, the investigative story titled “Investigation: Inside Nigeria’s Ruthless Human Trafficking Mafia”[7] which dated 23rd day of January 2014 of Premium Times Newspaper is deemed as copyright of Premium Times as they have satisfied the two conditions being printed in a daily newspaper and also having an investigative journalist go undercover and write from their perspective.

An issue that may surface would be ‘But the journalist went on the manhunt by herself’, however, the law does not interpret such situations plainly as we would. The law is of the stance that one may perform certain tasks, and create works in the course of their employment, or may have been contracted to do, and in such instances, the copyright is vested in the employer. This ushers us into the concept of ownership and authorship in copyright law.

The basis of copyright protection is to compensate the creator of a work for his contribution to innovation and a field of knowledge. The author of a work can however be distinct from the owner. From the combined interpretation of Section 1(2), Section 10, and Section 51(1) of the Copyright Act, the author is the person who expended his independent skill, judgment, and labour in the creation of the work. The owner could however be the same person or it could be a separate person in cases where it is transferred as provided for in Section 11, or it is a work commissioned or created in the course of employment. In this instant case, it can be said that Tobore Ovuorie is the author and not the owner of the work as she was commissioned as an investigative journalist to research and write on the story for the newspaper, and ownership of the copyright belongs to Premium Times Newspaper being the employer. This can be buttressed with the decision of the court in Joseph Ikhuoria v Campaign Services Ltd and anor[8] where the court held that the sketch the plaintiff had made during the course of employment was the property of the defendant company as it was done under the terms of his employment.

It should however be noted that the author is the first owner according to the Act, and most times, there ought to be an express contract passing the ownership in the terms of employment. However, in the case of newspapers, periodicals, or magazines, in the absence of any contract contrary, the proprietor of such newspaper, periodical or magazine shall be assumed to be the first owner per Section 9(3). Premium Times which is a newspaper proprietor can be said to be the first owner of the investigative article created by Tobore, even though she carried out the work.

In answering the question, ‘who does copyright lie?’ flowing from the above and the information available to the general public, it can be alleged that copyright lies with Premium Times Newspaper Company.

Before we discuss whether there was copyright infringement by Ebony Life media based on facts available to the public, we will first look at what infringement entails. Copyright infringement simply put can be described as the breach of the legal protection that is assigned to a particular work. Section 14 of the Act[9] provides for copyright infringement and states that copyright is infringed by a person who amongst other things does or causes any other person to do an act the doing of which is controlled by copyright. Section 16 of the Act further states that an action for infringement shall only be actionable by the owner, assignee, or exclusive licensee of the copyright. When a person has copyright in a work, the person is granted the exclusive right to that work and as such any usage of such work without proper permission of the copyright owner would be regarded as an infringement.

The Copyright Act states that where a contract of employment does not provide for the ownership of a work, it is presumed to be vested in the employee[10], however where the work is a musical, literary, or artist work, and it is otherwise in the contract of employment, it belongs to the proprietor[11]. It is however important to note that this ownership of rights is limited to economic rights and not moral rights, as moral rights are exclusive and inalienable.

Linking this to be present allegations, Ebony life media stated that they obtained the rights to use such work from Premium Times Service Limited. In an interview with premium times[12], Mr. Musikilu Mojeed, the editor-in-chief stated that Tobore Ovuorie had carried out the investigative journalism titled ‘Inside Nigeria’s Ruthless Human Trafficking Mafia’ while she was still a full-time employee of Premium times and according to the law, the copyright over that work belonged to her employer, Premium times. This would mean that Ebony Life was granted the right to use such work by the real copyright owner. Assuming this was true, it can also be said that Tobore still has a moral right over the publication, as an employer can only have an economic right over a work done by its employee.

Moral right requires that an author be given credit for his or her work and according to Article 6bis of the Berne Convention of which Nigeria is a signatory, it also grants authors the right to object to any distortion or modification of your work that may be prejudicial to your honour or reputation (also referred to as the right of integrity). Ebony life, therefore, has a duty to credit Tobore as an author of the work based on her moral right. From the movie, it can be seen that Ebony life thanked Tobore alongside Premium times for their hard work and being an inspiration to them. The question now is, would only tagging Tobore as an inspiration sufficient credit to regard her as the moral right owner of the publication used for the movie?

According to the law, Ebonylife can be said to have obtained proper permission to use the copyrighted work as the copyright belongs to the employer and not the employee. However, Tobore in a recent interview stated that she commenced the investigation of the work before she started working with Premium times. It can be argued that copyright still belongs to Premium times as the investigation was published under Premium times.

On the third issue, which has gained controversy on social media, it would be best to state that the elements of a contract would be explained on one hand and the elements of a gratuitous promise on the other. A contract is an obligation a party owes to another party in return for consideration. It can also be said to be an agreement between two parties that creates a mutual legal obligation. A contract can be oral or written. Some things should be in place before a contract can be said to be valid. First, there must be an offer which is a statement of the term that shows that a person making the offer as such is ready to be contractually bound. Second, the element of acceptance is necessary and it must be communicated to the other party and it should be unconditional. Third is the element of capacity to contract which speaks of the ability to understand the terms of the contract. It also considers the age of certain persons and their ability to comprehend. Fourth is consideration which implies that there must be an exchange of value for the contract to be binding. Fifth is the intention to enter into legal relations which implies that the parties must intend to enter a contract and not mere assumptions to avoid the plea of non est factum (not my deed) at any point of the contract.

Gratuitous promise on the other hand was defined by Douglas Wilhelm Harder as a situation when a party makes a promise to another, either within or outside the context of a contract, where that promise places an obligation on the party but where that party does not receive anything in return i.e. no consideration (as explained earlier), then such promise is to be regarded as gratuitous. This type of promise which has no consideration attached to it in most cases amounts to no obligation on the part of the person making the promise. A gratuitous promise can only be enforced under a doctrine called Promissory Estoppel which means that a promise can only be enforced by law (even without consideration) where the promisee (the person to whom the promise was made) has relied on the strength of such promise made by the promisor (the person who made the promise) and has incurred subsequent detriment (loss) to himself.

With regards to the theories of law explained above and with regards to the available assertion made on this case, the question of whether Tobore or her NGO can enforce the 5% of profit, promised based on the income from airings at the cinema, made by Ebony life, would be answered in the negative. It is has been made clear that contracts are valid on the strength of sufficient consideration amongst other elements. In this case, the question of what consideration has been furnished by Tobore or her NGO for the enforcement of such promise as a contract would be asked. If the question is answered on the negative, it can be said that there is no contract and such promise cannot be enforced. But if answered on the positive, then there is a case of enforcement of a contract. Another question also would be asked as to the level of detriment (loss) that has been sustained by Tobore or her NGO relying on the strength of the promise. If this question is answered on the negative, it would be safe to say that there can’t be enforcement even based on promissory estoppels; if answered on the positive then the court can uphold the right of the NGO to enforce the promise.

It is also worthy of note that this controversial issue which has made several persons on social media raise an eyebrow against Ebony life is more or less of no controversy. It is because even if enforcement is sought, there could still be a defence of FORCE MAJEURE, which is An Act of God. This is based on the Covid-19 Pandemic which prevented the movie from being aired in cinemas and which prevented the said income from coming in. The court in this situation could also give its opinion stating that airing on Netflix could be tantamount to airing on cinema; whichever way, the law is what the court says it is and nothing more pretentious.

The usual procedure in any action for infringement is that the issue of liability is decided before the issue of compensation for damages is dealt with. As established above, we can say that Copyright lies with Premium Times Newspaper Company and not with Tobore. Hence, by virtue of the alleged facts which exist in the public domain, it should be rightly pointed out that Tobore can be seen to have no cause of action because the Copyright of the article which was adapted into the movie “Oloture” was supposedly licensed to Ebony life Limited by her previous employers Premium Times.

It is apparent that any civil matter bordering on IP can only be commenced at the Federal High Court and no other court is permitted by law to entertain such matters. This provision is also substantially similar to the provisions of Section 7 of the Federal High Court Act. It is apparent that any civil matter bordering on IP can only be commenced at the Federal High Court and no other court is permitted by law to entertain such matters. This provision is also substantially similar to the provisions of Section 7 of the Federal High Court Act It is apparent that any civil matter bordering on IP can only be commenced at the Federal High Court and no other court is permitted by law to entertain such matters. This provision is also substantially similar to the provisions of Section 7 of the Federal High Court Act.

Furthermore, In seeking damages for the Infringement, Tobore’s lawyers supposedly sought a Civil action categorically demanding the sum of 5 Million US Dollars, which many termed to be outrageous. In many IP infringement cases in Nigeria, It is often the case that an alleged copyright owner claims exorbitant sums as damages for acts of infringement, without any factual or evidence to sustain such claim(s). However, although there is no standard assessment of damages in IP law cases, our Nigerian Courts have overtime, displayed a clear understanding and fair judgement in assessing damages in actions for IP infringement. That being said, Tobore could even still file for further damages as S16(4) of the Copyright Act suggests that if an infringement action of copyright has been proved, the court could even grant additional damages if it perceives that the claims sought aren’t sufficient enough.

However, for deterrence, it has been observed that wherein there is no contractual background or cooperation between both disputing parties, our court tends to adopt a more punitive approach. This doesn’t still suggest that the court would award a sum inordinately higher than why the copyright would have been worth before its infringement.

Therefore, in reference to the damages claimed by the alleged owner of the article “Tobore”, her supposed claim to copyright infringement by Ebonylife can be perceived to have no legal backing as copyright presumably lies with her previous employers Premium Times. Consequently, if she has no legal right to sue then she isn’t entitled to damages sought and such exorbitant claimed wouldn’t be granted by the court. It is important that if Tobore decides to seek legal action, she has to prove that she has a legal right before the court grants any damages towards the supposed infringement.

CONCLUSION.

Flowing from the above, we the African intellectual property network hope that we have been able to help answer some burning questions relating to the ‘Oloture’ IP dilemma.

You can follow us on all platforms to keep abreast of our opinions on further IP related issue.

[1] Linkedin- Ukomadu Chijioke, Twitter- @Cjay_uk, Instagram- @Cjay_uk

[2] Linkedin- Elekwa Amara, Twitter- @ElekwaAmara, Instagram- @ElekwaAmara

[3] Linkedin- Zeenah Badru, Twitter- @_arinolaa, Instagram- @_arinolaaa

[4] Linkedin- Peace Chidi, Twitter- @Nmesoma_Peace, Instagram- @_peace.chidi

[5] Linkedin- Adetimehin Toluwanimi, Twitter-@Tolu_19, Instagram- @tiolv_

[6] Copyright Act, Cap C28, LFN (2004) s.51(1)

[7] Tobore Ovuorie, ‘Investigation: Inside Nigeria’s Ruthless Human Trafficking Mafia’ (2014) <https://www.premiumtimesng.com/news/153844-investigation-inside-nigerias-ruthless-human-trafficking-

mafia.html> Accessed 14 January 2021

[8] (1986) FHCR 308

[9] The Copyright Act LFN 2004

[10] Section 10(2)(b)

[11] Section 10(3) C28 Laws of the Federation of Nigeria (NCA) 2004

[12] Ajani Okanlawon, ‘Journalist can’t claim copyright over Oloture- Premium Times’, (2020) <https://www.qed.ng/journalist-cant-claim-copyright-over-oloture-story-premium-times/> Accessed on 14 January 2021