Moral Right in Nigeria: Lessons from More Developed Jurisdictions

Experts on intellectual property law issues are not enormous in Nigeria, and that opens the way for the laxity and the dearth of discussions on arising issues in the field. The basic discussions on the topics are available but are not written in the perspective of advancing the position of IP in Nigeria. Nigeria still has a long way to go on IP issues, and a pertinent way of ensuring this is creating an IP discussion forum. The little experts in the field in Nigeria must write articles as this expounding the principles in IP, and keep suggesting ways for improvement to the Nigerian government. This is very important if one looks at the various merits attached to a vibrant IP regime. This article deviates from the conventional type of articles on IP in Nigeria and presents a lacuna in the Nigerian IP law on moral right, and the need for us to embrace it.

No doubt, when one mentions ‘moral right’, the first thought is often in relation to copyright, because of the Berne Convention on copyright explicit provisions as regards them. The truth, however, is that moral right has spilled into other IP mechanisms as patents, trademarks, and designs via contracts. Moral rights simply are the other types of rights one has in an intellectual creation that is protected – either with copyright, patent, trademark or designs – under an IP regime. For every IP, there are two classes of gains. One is pecuniary. This aspect confirms the ability of an IP owner to exploit the IP to make money for himself. Thus, an inventor having a patent in respect of an invented machine or process can give another inventor wanting to build on the patented invention a license for a fee. A proprietor of a trademark can sell it, so is the owner of an invention – these are outrightsale of IPs, and it is how IP owners make money. Maximizing IP for pecuniary gains is a different discussion on its own which most IP owners are not acquainted with in Nigeria. Licensing, outright sale, lease, franchising, merchandising, sponsorships are ways IP are exploited and IP owners make money.

However, just on the side of pecuniary gains are moral rights. Moral rights demand that the creators of copyright works¹, inventor/designer of an invention, or proprietor of a trademark have e.g their names on their work, invention or trademark. Presently, there are three conceivable and applicable moral rights, the two most notorious are paternity, and integrity. Another one visible in the UK IP law is the right to object to false attribution².

Explanation of each moral right

As a form of introduction, it is important to highlight the source of moral right, which is in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work, 1886 (as amended)³.

Article 6bis provides that: “Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation.”

The Berne convention clearly recognizes two moral rights, paternity, and integrity, the UK’s recognition of false attribution is a reverse of paternity as shall be seen later.

The right of paternity

What this right means is that when a creator creates a work and same has been copyrighted (it must be remembered that copyright in works arises automatically, and there is no formality as regards registration to pullprotection), then his name should appear on the work anywhere in the world. So, if A writes a book, and in a television broadcast, part of the book is quoted, the right to paternity requires that A – the author of the book – be mentioned following the quote or before the quote. From the idea of what paternity means, the public must know from whom the work emanates from. The same thing applies to work of art, songs, craft and any other copyrightable works, when used or when transferred e.g via a license, sale, franchise etc, the owner who created work have the right to have his name on such work. This is the idea of authorship the right to paternity protects.

Care must be ensured in discussing this moral right and the idea of “owner” and “creator”. There is a difference between these two in IP discussions, and too often, IP law puts deference on the owner, not the creator, and the owner of an IP or the rights in it need not necessarily be the creator. Imagine a case of employee-employer situation, an employee who drafted a report for the employer – a company – is the creator, but often not the owner of the copyright in the report. Agreements/contracts between employees and employers also play a role in this type of instance, and in some jurisdictions, the law put deference on the owner for pecuniary purpose, but on the creator for moral right purpose. In some jurisdiction (like the UK), the moral right belongs to the owner, unless the creator asserts it. These issues would be touched at the end of this article.

The right of Integrity

As succinctly put by the Berne Convention in its last part, an author has the right to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation.” It means, if an artist, for example, makes a drawing of Jesus Christ with his twelve disciples at the biblical Last Supper, a person cannot add a thirteenth disciple to the disciples. If an author writes a book in which he makes the protagonist heterosexual, a person cannot adapt the book or re-write it and make the protagonist homosexual. Another example, a person cannot make another drawing of Monalisa and distort it. The reason is thatsuch modification of the work has the potential of prejudicing the author’s honourand/or reputation. It will mean if an author publishes a book, a reader who disagrees with the content cannot for example publicly set the book on fire – distortion – as that would offend the moral right to the integrity of the book. The right to integrity is in the work, not in the author.

The above last example must be understood in the light of the first sale doctrine popular in the US. Under that doctrine (as an exception to the copyright owner right), a buyer of a copyrighted work can sell, display or otherwise dispose of the said copyrighted work to the exclusion of the desires of a copyright owner. The doctrine is often referred to as the ‘exhaustion rule’, and what it really represents is that upon sale of a copyrighted work to a buyer, the author’s right on the copyrighted work exhausts, and the buyer can do what he likes as regards the work, including specifically selling, displaying, or otherwise disposing of the work, e.g. renting it out, re-selling it etc. In relation to the moral right of integrity, whether the heaven is the limit of the buyer is unclear, i.e. can the buyer also distort or mutilate the work purchased, since the author’s right has now ceased. The answer would be in the negative at least in a country as the US since the law specifically mentions what buyers can do with purchased work and distortion, mutilation or anything that could offend the right to the integrity of a work is not included. The discussion as regards first sale doctrine is silent in Nigeria, and there is a debate on its fairness and extent in more developed jurisdictions. For example, in most European countries, where the moral right of integrity is loud e.g. in France, Germany, the first sale doctrine does not validate offending the moral right to the integrity of a work or offending any moral right for that matter.

Note that according to the Berne Convention, the test is whether the refusal to properly attribute a work or modifying a work would be prejudicial or constitute dishonor to thecreator. If an act will not be prejudicial or constitute dishonor to the author, then it won’t offend the author’s moral right.

The right to object to false attribution

As mentioned earlier, this right is a reverse of the right to paternity and is recognized in the UK. Thus, while the moral right of paternity suggests authorship and having the author’s (true) name on copyrighted works, the right to object to false attribution suggests that when so referring to the said copyrighted work, the referral must not be toa different author. This moral right gives the author the moral right to preclude others from attributing a work as belonging to him. If A wrote books B, C and D. A reporter/critic X listing the books written by A cannot say A wrote E as well since A has not written book E. Thus, A can preclude X from attributing E to have been written by him.

In law, uncommonly, the right to object to false attribution can be used in the reverse sense as well just as other legal principles⁴. In our example above, assuming books B and C written by A contains a description of a particular ‘problem’ and D contains the ‘solutions’ to the problem. X cannot for example in his report/critique criticize A as merely publishing problems – in book B and C – and not the solutions by intentionally refusing to mention D – where A has discussed the solutions. A can  (inclusively) preclude X from attributing B and C alone to him (in the ‘problem’ discourse) if X chooses not to mention D – depending on the point X is trying to make. In summary, the idea of “false” attribution can be interpreted widely, including especially in respect of false advertisement as shall be seen later.

As this is a reverse of the right to paternity, the reverse of the right to integrity has already been included in the right to integrity, since the right covers all sort of modifications to the copyrighted work.

There are other silent moral rights aside from the three mentioned above, notably are the right to make a work anonymously or under a pseudonym and the right to the adaptation of a work. In the former, the difference between anonymous and pseudonym is that, when a work is made anonymous, the name of the author is absent, under a pseudonym, however, the author has assumed a name, an ordinary reader might confuse the used pseudonym as the actual name of the author of the book. A common pseudonym is Alan Smithee. The moral right allows an author to publish a work in this manner.

The right to adaptation implies that the author can stop a person from adapting his copyrighted work – this right is encapsulated under the right to integrity. An important principle in the Berne Convention is the minimal standard of protection and rights to be conferred on “authors”, their “works” and the “terms of protection”. As regards authors, the Convention provides for the author’s right to reproduce work⁵, to perform it publicly⁶, translate⁷, adapt⁸, broadcast⁹ etc. So, another party may not adapt a work without the author’s permission.

It is unclear whether the artists resale right as in the EU is a moral right, but since it is pecuniary in nature, it can be classed as economical, however, the fact thatit follows the author gives room for believing it is a moral right. The right gives the author (if alive) or to his heirs (if dead) or to such authorized body¹⁰ some interests, usually in the form of royalty, in respect of the subsequent sale of an artist’s work. In simple terms, if an artist A sells his work of art to B, if B resells the work of art to C, artist A still has some interest (in the form of royalties) from the income in the sale by B to C. This explains why the right is often referred to as author’s “resale right”¹¹. There are several peculiarities of this right. The first is that it does not apply to all rights, it applies only to “original works of art and original manuscripts of writers and composers”, if Nigeria wants to emulate this right, we can expand it to cover even more copyrightable works. Secondly, the right is “inalienable”. This means that an artist cannot be stripped of this right even when he has, for example, assign his IP rights in a work of art to another party, from the French meaning of the phrase, the right (still) follows the artist. The right is a direct contravention of the “first-sale doctrine”, especially in the United States¹². The first-sale doctrine forbids the author’s interest in a subsequent sale by B to C. It relies on the idea that (in our above example) when A has first sold the work of art to B, his right in the work (including to any royalty if B subsequently sells to C) has ceased and B is then free to do whatever he likes with the work (aside from violating the artist’s moral right). The first-sale to B terminates A’s subsequent rights, including to royalties.

Two other issues that need to be mentioned before closing this article is ‘false advertising’ and ‘defamation’ as they relate to moral rights. Ordinarily, a creator of an advertisement in her own advert would be precluded from suggesting or making a false attribution to her competitor. The law onadvertisement is still unsettled in Nigeria. For example, competitors still make adverts and refer to their other competitors subliminally, the courage to address a competitor expressly in an advert by another competitor is not visible in adverts. Often, to show the defects or exploitive activities of other competitors, and to show her own merits, a company as MTN shows it is superior to a competing network provider as Globacom or Airtel by showing a yellow colour on top of a green and red colour – which are colours associated with Globacom and Airtel respectively. In more developed jurisdictions, a network provider would expressly mention the practice of her competitor in her own advert and compare it with hers, and state how hers is better, and why consumers should patronize her instead. Nigeria is yet to develop to this extent, and most competitors still cower at the fear of a defamation suit where they do comparative advertisement.

Without distracting from the point as regards “moral right”, what we are saying is that where comparative advertisement is allowed (and this makes this part a futuristic consideration for Nigeria, since we still do not have a comparative advertisement practice), a competitor cannot falsely make an advert about her competitor as this would offend the moral right of (true) attribution. In discussing the idea of comparative advertisement in Nigeria, a legislation should be made regulating this aspect of competition practice as done in the EU and the US. Competitors must be made to remember via the legislation that fair business practices are allowed in consumer’s interest, and also that ‘justification’ still remains a defense to a possible defamation suit.

In conclusion, in Nigeria, out of all these moral rights discussed, and other issues, the Copyright Act only recognizes the paternity moral right in subsections (a) and (f) of the Second Schedule to the Act, even when the provisions of Art. 6 Ibis of the Berne Convention uses the word “shall” and maintained the necessity of the moral right of paternity and integrity at the least. Nigeria ensures only the former right¹³, but not the latter, and does not even provide that the moral right survives the author’s death as well as suggested the Berne Convention. This is an anomaly, and amendments must be made in our laws. Partly, the right to adaptation in relation to the right to integrity and use of anonymous/pseudonym is recognized in our law, that is commendable, but other issues asfalse/comparative advertisement, explicit right to integrity, right to object to false attribution are not embraced. The laws and our practice should embrace moral rights as they have a way of encouraging authors increating even more work, to protect the non-commercial interests of creative authors¹⁴.  

The last issue is whether moral right should be alienable/waivable or inalienable, whether it should survive the author or not, whether it could be assigned upon transfer or if it is always personal, whether authors must assert it (before it operates) or not. In the Nigeria setting, the answers to these questions must be reached to fully embrace the tenets of moral rights. In this author’s view or suggestion, the moral right to paternity should be subject to contracts (i.e. it should be waivable), while the right to integrity and false attribution should not be waivable to avoid confusion of works – the law should not be an author of confusion in the society. Moral right should also always be personal, and not assignable, apart from the right to paternity, and when moral right is recognized, it is pertinent that it should be perpetual to the extent of copyright protection in a work at least. Whether authors must assert the right as done in the UK is also an option, but the option has the potential of causing confusion when neither the author nor the owner of IPR asserts it for example, in that situation, what happens?. The legislature must be vibrant in making laws as regards defamation, comparative advertisement, and false advertisement aimed at ensuring fair business practice and healthy competition amongst traders as advertisement are intellectual creations, protectable by copyright. 

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