CST 121

Intellectual Properties
and
Copyright Issues

Sola Owolabi
 What is Intellectual Property?
• Intellectual property (IP) refers to creations of the mind,
such as inventions; literary and artistic works; designs; and
symbols, names and images used in commerce.

• It refers to the legal rights which results from intellectual

activity in the industrial, scientific, literary and artistic fields.

• IP is divided into two branches; Industrial Property which

includes patents, trademarks, industrial designs etc. and
Copyright which includes literary and artistic works like
novels, poems, films etc. our focus in this course is on
copyright.
• What then is copyright? IP is protected in law
by, for example, patents, copyright and
trademarks, which enable people to earn
recognition or financial benefit from what
they invent or create.

• By striking the right balance between the

interests of innovators and the wider public
interest, the IP system aims to foster an
environment in which creativity and
innovation can flourish.
 Patent

• A patent is a set of exclusive rights granted by a

sovereign state to an inventor or assignee for a limited
period of time in exchange for detailed public disclosure of
an invention. An invention is a solution to a specific
technological problem and is a product or a process. Patents
are a form of intellectual property.

• The procedure for granting patents, requirements placed on

the patentee, and the extent of the exclusive rights vary
widely between countries according to national laws and
international agreements. Typically, however, a granted
patent application must include one or more claims that
define the invention.
• A patent may include many claims, each of
which defines a specific property right. These
claims must meet relevant patentability
requirements, such as novelty, usefulness, and
non-obviousness.

• The exclusive right granted to a patentee in most

countries is the right to prevent others, or at
least to try to prevent others, from commercially
making, using, selling, importing, or distributing
a patented invention without permission.
• Under the World Trade Organization's (WTO)
Agreement on Trade-Related Aspects of Intellect
ual Property Rights
, patents should be available in WTO member
states for any invention, in all fields of
technology, and the term of protection available
should be a minimum of twenty years.

• Nevertheless, there are variations on what is

patentable subject matter from country to
country.
 Trademark

• A trademark, trade mark, or trade-mark is a recognizable

sign, design or expression which identifies products or
services of a particular source from those of others. The
trademark owner can be an individual, business organization
, or any legal entity.

• A trademark may be located on a package, a label, a voucher

or on the product itself. For the sake of corporate identity
trademarks are also being displayed on company buildings.

• Trademarks are used to claim exclusive properties of

products or services.
• The usage of trademarks by its owner can
cause legal issues if this usage makes them
guilty of false advertising or if the trademark is
offensive.

• Trademarks can be owned, but also licensed.

Many toy suppliers are licensees.
 Copyright
• Copyright is a legal term used to describe the rights that creators have
over their literary and artistic works.

• Works covered by copyright range from books, music, paintings,

sculpture and films, to computer programs, databases, advertisements,
maps and technical drawings.

• It is the rights that creators have over their literary and artistic works. It
is also a branch of intellectual property that deals with the exclusive
right accorded by law to the creator of a literary work, composer or
artist with regard to use, reproduction and exploitation of his created
works for economic or commercial purposes.

• Simply put, it is the exclusive right granted an author and other

creative artists to authorize the use of their works in any way.
• Encyclopedia Americana (2006) defines copyright as the exclusive
legal rights granted by the Government to the creator of original
literary or artisitc works such as books, drawings, photographs,
musical compositions, sound recordings, films and computer
programs to reproduce, display and distribute works or to prepare
derivative works within certain limitations.

• Copyright protection exists from the moment a work is created in

a fixed, tangible form of expression. The copyright immediately
becomes the property of the author who created the work.

• Only the author, or those deriving their rights through the author,
can rightfully claim copyright. In the case of works made for hire,
the employer—not the writer—is considered the author.
• Copyright covers both the moral and economic rights of
authors.
• Moral rights centre exclusively on claim to paternity and
include the following:
• The right to have his/her work exclusively ascribed to him
• The right to have his material undistorted
• The right not to ascribe another person’s name to his
work
• The right of secrecy: the work remains the author’s secret
until he decides to divulge it
• Economic rights are basically the rights to reap the
economic benefits of his/her work
• Copyright Owner
• The owner of copyright in a work is principally the person
who created the work i.e the author. In exceptional cases
however, the national law may provide that when an
author is employed for the purpose of creating that work,
the employer, not the author is the owner of copyright.
• Purpose of copyright
• To encourage creative people to produce works of culture
• Provide incentives for effective dissemination of these
works- the intention of copyright is not to limit public
access to information but to ensure that the public has
access to information by protecting the economic and
moral rights of authors
 Preconditions for copyright
• Originality – original in nature with intellectual input e.g. if I
dictate a poem to you and you write it out verbatim, who is
the copyright owner?

• It must be fixed in a definite format- e.g. book, CD etc. and

other tangible formats .e.g. if you tell your friend a story
and he/she decides to write the story in a tangible format
he/she has the copyright. Agreed you brought the idea, but
ideas are not copyrighted.

• Artistic work intended by the author to be used as a model

or pattern to be multiplied by any industrial process is not
eligible for copyright
• For example, if LMU hires someone to design LMU logo,
the artist does not have copyright over the logo- it can
be mass produced by the University, why?- because it
was a contract.

• A work shall not be ineligible for copyright by reason

only that the making of the work or the doing or any act
in relation to the work involves an infringement of
copyright in some other work.

• This implies that once a work has been made, it enjoys

copyright protection even if it violates copyright e.g.
chapters of work copied from a book without authority
from another book.
• Both authors will be protected by copyright
though the infringer will still be liable for the
infringement on the other work. However, if
the original book is reproduced in the second
without any addition- it lacks originality and
will only be tagged as a pirated copy and does
not enjoy any copyright.
 Implication of copyright in a work

• Punishment for violation of copyright is both civil and criminal.

The owner of a copyrighted original work has the exclusive
right, subject to certain limitations to do and/or authorize any
of the following:
• Publish the work
• Reproduce the copyrighted work in copies and any format
• in the case of literary, musical, dramatic and choreographic
works, pantomimes & motion pictures and other audio-visual
works to perform the copyrighted work publicly
• Produce, reproduce, perform or publish any translation of the
work.
• Distribute to the public for commercial purposes copies of the
work by way of rental, lease, hire, loan or similar arrangement.
• Copyright Coverage
• There is no international law of copyright that enables the
creator to protect his/her works throughout the world
• Each country has its own copyright laws which may differ
greatly from one country to another
• However, most countries are members of two international
treaties, which prescribe minimum standards for member
countries and require each country to provide protection to
citizens of other member countries
• The Treaties
• Berne Convention Treaties
• Universal Copyright Convention
• Over 120 countries including Nigeria are signatories to these
treaties
• Formalities for Regulation
• In Berne Convention no formalities are required for the
conferment of copyright protection on a work, what is required
as in the UCC is the ‘copyright notice’ a symbol of encircled C,
followed by the owner’s name and year of the work’s
appearance: e.g. “Copyright (c) Yusuf, 2010”

• Transfer of copyright – how?

• By assignment – through writing
• By licensing – two types; exclusive ( done in writing) or non-
exclusive (done either in writing , orally or inferred from a
contract)
• By testamentary disposition-
• Transferred through a will
• In the absence of a will, it will devolve like all other property.
• Period of Validity of Copyright
• The Berne Convention establishes a general and
minimum period that lasts the life of the author and 50
years after his/her death. However, a member country
is entitled to establish greater periods of protection
but never less than what the Berne Convention has
stipulated.

• In Nigeria, it is 70years after the death of the author

and for co-authored works, 70years after the death of
the last author.
• Fair Use Clause
• Fair use is a limitation and exception to the exclusive right
granted by copyright law to the author of a creative work.

• Fair use is a doctrine that permits limited use of copyrighted

material without acquiring permission from the rights
holders.

• Examples of fair use include commentary, search engines,

criticism, parody, news reporting, research, teaching, library
archiving and scholarship.

• It provides for the legal, unlicensed citation or incorporation

of copyrighted material in another author's work.
• Fair use is one of the traditional safety valves
intended to balance the public's interest in
open access with the property interests of
copyright holders
• This is a legal principle that defines the
limitations or exceptions on the exclusive rights
of copyright holders. It includes reproduction for
purposes of criticism, reviews, news reporting,
teaching, research, and personal studies
 Factors to consider in determining ‘fair use’ of a particular work

• The purpose and character of the use- whether

such use is of a commercial nature or is for non-
profit educational purposes

• The effect of the use on the potential market for

or value of the copyrighted work

• The amount and substantiality of the portion used

in relation to the copyrighted work as a whole
 Piracy and Infringement

• Piracy refers to the unauthorized reproduction of

copyright materials for commercial purposes and
the unauthorized commercial dealing in copied
materials.

• Infringement of the rights of an owner of copyright

however occurs when someone else without the
consent and/or permission of the owner does one
of the acts requiring authorization of the owner.