By Eeboade Hassan Adigun
Introduction
As a matter of fact, it is not disputable that the law provides certain protections in respect of the products of the human intellect. These protections are known as copyrights. Copyright (or author’s right) is a legal term used to describe the rights that creators have over their works. In this connection, photographic work is not an exception. Photographs are protected by copyright from the moment of creation.
However, the copyrights granted to the photographers by the Act is excessive. The Act, under section 6, fails to give enough cognizance to the interests and privacy of the person who commissions the work or appears in the photographic work, as the case may be.
Hence, this article examines the concept of copyright in a photographic work generally under the Nigerian Copyright Act of 2004, then proceeds to explain how the right goes contrary to the provision of section 37 of the Constitution of the Federal Republic of Nigeria as amended, and finally makes some recommendations with a view to striking a balance between the parties (photographer and the person being photographed)
Concept of the Copyright Granted to Photographers
Copyright is the exclusive and assignable legal right granted to the originator or author of works (eligible for copyright) for a fixed number of years to reproduce, publish, print, and perform the work, as the case may be, and infringement occurs if another person does the same.
Copyright in photography means that you own an image you created. Note, that it’s not all manner of works that are protectable by copyright. The works eligible for copyright are enumerated in Section 1 of the Copyright Act 2004 where it provides that;
(1)Subject to the provision of this section, the following shall be
eligible for copyright.
(a) literary works
(b) musical works
(c) artistic works
(d) cinematograph films
(e) sound recordings; and
(f) broadcast
All the works mentioned above and other works that fall within each of them are eligible for copyright and therefore protectable. According to section 51(1)(d) of the Copyright Act(2004);
‘photograph not comprised in a cinematograph films’ is one of the types of artistic works.’
Having established the fact that a photograph is an eligible work under the Copyright Act, it is therefore pertinent to explain who the Act regards as the author of a photograph. In other words, who is the creator of a photograph? The same section referenced above states who the authors of the works eligible for copyright are.
‘author’ in the case of a photographic work, means the person who took the picture”.
The implication of the above is that the author of a work is the creator of the work and he’s therefore the initial owner of the copyright in the work. See section 10(1) of the Act;
“Copyright conferred by sections 2 and 3 of this Act, shall vest initially in the author.”
It is now deducible from the sections aforementioned that the photographer who took a photograph is the owner of the Copyright in the photograph.
Excess of the Copyright Granted to Photographers
The Copyright Act went further to provide in S.10(2)(a) that;
Notwithstanding subsection (6) of section (11) of this Act where a work –
is commissioned by a person who is not the author’s employer under a contract of service or apprenticeship;
the copyright shall belong in the first instance to the author, unless otherwise stipulated in writing under the contract.
It is illustrative from the above provision that if A the (client) approaches B the (photographer) to take his photograph for private or domestic purpose, the copyright belongs not to A who commissioned the work but B who took the photograph unless there was any agreement in writing to the contrary.
In BANIRE v. NTA-STAR TV NETWORK LTD (2021) LPELR-52824(CA), the Appellant’s image was used for promotional purposes by a company without her consent. She sued the company, and it was the argument of the company that it was another company (licensor) who gave them the license to use the picture and therefore they were not liable. Evidence showed that it was the licensor that actually took pictures of the Appellant. Therefore, her argument that the use of her picture was unlawful fell on deaf ears. The Court of Appeal held that she didn’t own copyright in the photograph; it is the person who took the photograph that is the author.
It is not the concern of this writer whether the copyright in respect of a photographic work should be vested in the photographer or his client who commissioned the work under a contract of service. The fury of this writer is, however, on the excess rights conferred on the photographer, which in consequence are detrimental to the interests and privacy of the other party (photographee).
It is at this juncture that the nature of the copyright conferred on photographers in respect of their works is made known. These rights are contained in section 6(1)(b) of the Act to include:
(i) reproduction of the work in any material form;
(ii) Publish the work;
(iii) Include the work in any cinematograph film;
(iv) Make any adaptation of the work
(v) Do, in relation to an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (I) to (ii) of this paragraph.
Flowing from the above provision, it is clear that the photographer can reproduce the photograph taken by him and can also publish or include the same in any cinematographic film for the general public to see. The illustration of this in relation to the scenario of A & B above is that B can reproduce A’s picture and publish the same or include the picture in any cinematographic film for any purpose so desired. These, to this writer, appear to be excessive rights which need to be curtailed as they contravene the privacy rights of the photographee.
In some other countries, the United Kingdom for example, the right to privacy of some certain photographs commissioned for private and domestic purposes are catered for. Section 85 of the COPYRIGHT, DESIGNS AND PATENTS ACT, 1988 applicable in UK provides that;
(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright work subsists in the resulting work, the right not to have –
(a) copies of the work issued to the public;
(b) the work exhibited or shown in public; or
(c) the work communicated to the public
The Need to Amend Section 6(1)(B) of the Copyright Act
The failure of the Act to achieve a balance between the interests of the photographer and his client, resulting in a violation of Section 37 of the Federal Republic of Nigeria’s 1999 Constitution, has undoubtedly influenced the writing of this article.
Section 37 of the Constitution provides that;
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
In the case of Gani Fawehinmin v. Nigerian Bar Association (1989)2 NWLR (pt.105)558 , it was held that;
“fundamental rights which cannot be waived include the right of privacy of citizens and their homes, preserved under section 37 of the 1999 constitution.”
Although what denotes privacy was not defined or specified, it could be assumed that this also extends to image rights of an individual. It’s therefore the argument of this writer that section 6(1)(b) of the Act violated the privacy rights granted under section 37 other Constitution.
However, It is trite law that the provisions of the Constitution is supreme over any laws and it must not be contravened. This is evident in S.1(3) of the Constitution of the Federal Republic of Nigeria 1999 as amended that;
“ If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
In the case of NGIGE & ANOR V. INEC & ORS LPELR-CA/E/EPT/02/2014, the court stated that;
” It is settled law that where the Constitution has covered the field by providing for any subject matter, the provision of the Constitution on that subject matter is the overriding authoritative statement of the law on the subject matter.”
It is therefore the submission of this writer that section 6(1)(b) of the Copyright Act is inconsistent with the provision of the Constitution. The said provision is to the extent of its inconsistency null and void by virtue of section 1(3) of the Constitution.
Conclusion And Recommendations
It’s not in doubt that the idea of copyright was developed to protect the work of an author or owner from being unjustifiably tampered with. However, these rights should not be prejudicial to any other person who has an interest in the copyright work. In other words, the interests of the person who commissioned a copyright work must equally be protected. This writer submits that the right of privacy of whoever commissions a photograph be recognized, as it is guaranteed under the Constitution of the Federal Republic of Nigeria 1999 as amended. To achieve this, the Copyright Act must be amended to prohibit the photographer from using the work for purposes other than those for which it was taken.
Finally, in lieu of the arguments canvassed so far, this article recommends the following, to ensure the protection of the interest and privacy of the person who commissioned a photograph for domestic purposes:
- That the photographer be restricted from exercising his rights of ownership in a manner which is prejudicial to the privacy of the person who commissioned the work.
- That the provision of S.85 of the COPYRIGHT, DESIGNS AND PATENTS ACT, 1988 applicable in the UNITED KINGDOM be imported in to the NIGERIAN COPYRIGHT ACT, 2004.
- That the photographee be given the right to restrain distribution of his photograph
- That the provision of S.6(1)(b) and 10(2)(a) be revisited and
- That the right to privacy of the photographee be protected.
- That the person who commissions a photograph be given the right to reproduce the work for domestic purpose.
Eeboade writes from Faculty of Law, Usmanu Danfodiyo University, Sokoto. He can be reached via 08146216345 or hassanadigun184@gmail.com