Who owns the story? Part 2

This is a detailed response to the first part from Ekene Chuks-Okeke, an intellectual property lawyer.

Dear reader. For the first time since Communique went live, I am publishing a rejoinder to an essay. Partly because it provides more context for the conversation and presents a different perspective from mine, and partly because it is a correction to some of my assumptions in the initial essay.

Here is the reply, published with the author's permission:

By Ekene Chuks-Okeke

The recent conversation about Sex for Grades/Oloture has been interesting. It appears that there is some consensus that people should benefit from commercial exploitation of their life story/ life experiences. While the law is silent on this, it certainly isn’t a bad idea, and in future, we could see the law catching up to provide for this.

After reading your Communique 08, I thought I’d explain Nigerian copyright law's correct position on this matter.

Read the first part here.

Copyright is not a single right. Think of it instead, as a bundle of rights. Section 5(1)(a) of the Copyright Act lists 8 rights in literary works. All these rights are copyright. A reliable pdf of the act is here.

Section 9(3) addresses ownership of copyright by employees of newspapers/ magazines. If you reread it, you’d see that [it] is very clear that only the rights of publication [and] reproduction belong to the newspaper by default.

Where a literary, artistic or musical work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship as is so made for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical; or to the reproduction of the work for the purpose of its being so publishedbut in all other respects, the author shall be the first owner of the copyright in the work.”

Back to our bundle. In Section 9(3), the employer is only given 2 rights -- the right to publish the article for the first time in a newspaper and reproduce it (republish it as [it] is elsewhere, for the purpose of publication). In all other respects, the author owns the copyright. That is, all the remaining rights in the bundle. Others in the bundle include the right to make or authorise an adaptation or make a film regarding the work. 

Section 10(3) provides that [the] assignment of copyright must be in writing to be valid. Accordingly, a newspaper employer can only acquire the remaining rights in the bundle of copyright (see Section 5) by contract. Where there is no contract signed by the employee assigning all copyright in the work he/she creates to the employer, the employer does not own the other rights.

IP created by employees in Nigeria (save for the exception in Section 10 for newspaper employers, and the exception for works commissioned by governments/international organizations in Section 4) belongs to the author/employee by default.

This is why many employers include an IP assignment clause in employment agreements. Without a contract, employers do not automatically own their employee’s work—even newspapers.

What does this all mean?

  1. Premium Times only owns Tobore Ovuorie’s work if it has an intellectual property assignment agreement with her. That is, a document that definitively transfers the IP rights of her work to the company via a clause in her employment contract or by specifically assigning the right to make a film in respect of her article.

  2. My assumption that Premium Times automatically owns the copyright because of her employment is not correct. [Therefore, aside from the ethics of the matter, Ovuorie has a legal case afterall.]

Thank you for reading (and hopefully sharing) the rejoinder. Ekene wrote about a similar controversy in 2018 which you can read here.