Conclusively, the joint authorship relationship is a peculiar one laced with so much emotion and ego between the parties involved. And it is saturated with an intellectual property relationship coupled with spices of the principle of real property and tenancy in common… We must note that this area of our Copyright Law has not gone through our judicial furnace, particularly in the music arena. That is why we have to take our search to other legal jurisdiction for materials, particularly the English laws that have great influence on our judicial system.
It is a legal truism anchored on some certain provisions of the
Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004 and some
decided English cases to postulate that the products or works of the
P-Square Musical Brand evolving over 10 years are product of joint
authorship and co-owners of the copyrights that both Paul Okoye, Peter
Okoye and their estates can conveniently lay claim to under our extant
laws.
Under the Nigeria legal climate, the works or products emanating from
a joint authorship and co-owners of the copyrighted works, particularly
of the P-Square Musical Brand are being regulated by the Copyright Act,
Cap 28, Laws of the Federation of Nigeria, 2004 because they satisfied
the requirements clearly stated in Section 1 and 2 of the aforementioned
Act. The products or works of the P Square Musical Brand have copyright
in them. There are musical works that perfectly scale through Section 1
subsection 2(a-b) of the Act.
According to the Section 11 subsection 6 (a-b) of the Copyright Act,
Co-owner is defined as “…For the purpose of this subsection, persons
shall be deemed to be co-owners – (a) If they share a joint interest in
the whole or any part of a copyright;(b) If they have interest in the
various copyrights in a composite production, that is to say, a
production consisting of two or more works. In the same length, Section
51 of the act defines joint authorship as, a work produced by the
collaboration of two or more authors in which the contribution of each
author is inseparable from the contribution of the other author or
authors.”
We must note at this point that there is sharp distinction between
joint authorship and co-owners. While it is imperative to state here
that the Copyright Act presently operating in Nigeria did not make any
clear cut distinction between the two words, their meanings can be
inferred from the above provisions. Joint authors are at some point
co-owners but not all co-owners are joint authors.
The Section 11 of the Copyright Act, 2004 is to the effect that the
copyright owner can sell, assign or transfer his copyright in any work
to another person. The implication of the above provision is to the
effect that somebody can acquire the copyright of Paul or Peter in the
products of the P-Square Brand, and he/she will automatically become a
co-owner with Paul or Peter but he/she cannot claim the title of joint
authorship. It is against this background that makes me to argue that a
co-owner might not be a joint author but every joint author is a
co-owner at some point. And the only way a joint author can lose grip of
his co-ownership is clearly spelt out in Section 11 of the Copyright
Act, Cap 28, Laws of the Federation of Nigeria, 2004.
In an avalanche of a long line of decided English cases, the
principle developed so far is to the effect that for a claimant to
succeed in an action for joint authorship, such a claimant must show
that the contribution he/she made towards the creation of the work is
significant and original which approximate to penmanship, a direct
responsibility for what actually appears on the work. Joint intention or
not, during the creation process is immaterial, in an action for a
joint authorship. What the Court wants to see is the individual’s
significant and original contribution in the creating process that led
to the joint authorship. This same principle was adopted in the
following English cases; Robin Ray VS Classic FM Plc (1998) FSR 622 and Hadley and others VS Kemp and another (1999) EMLR 589.
But meanwhile, in the case, Fisher VS. Brooker (2008) EWCA
Civ 287, the Court of Appeal decided that an organ solo which the
claimant had contributed to the song ‘A Whiter Shade of Pale’ was
significant and original to entitle the claimant to a declaration of
authorship. The Court of Appeal however refused to grant the claimant a
declaration of co-ownership of the work that seems to have been
motivated by the monetary prejudices which such a declaration would have
caused to the defendant after 38 years of inaction by the claimant.
Meanwhile, the legal relationship between Paul Okoye and Peter Okoye,
after the breakup, in their joint authorship works and co-owners in
their copyrighted works has a striking similarity with the principle of
tenancy in common which will be seen as the legal implication of the
breakup of the P-Square Musical Brand on their products. For example,
either Paul or Peter has an equal right to possess and make use of every
part of the jointly owned work. Both also has the power to make
testamentary transfers of an interest and to convey or lease any
undivided interest to a third party. Paul or Peter, like tenants in
common, is presumed to have an equal, undivided interest in the P Square
Musical Brand’s products. But this equal interest can be tempered with
through written agreement that would rebut this presumption.
Besides, when profits are not made from the use of the work, Paul or
Peter may use the work individually without a duty to account. This has a
striking similarity with tenancy in common. But there is a sharp
distinction between joint authorship and tenancy in common in this
regard when the work is exploited for profit. While joint authors as in
the case of Paul and Peter are required to account for any profits
received as a result of a joint work, co-tenants are only duty bound to
account for profits received through rental, depletion, or ouster. If
the exploitation of the work does not affect the value of the work, then
account for profit in joint authorship remains a mirage. A claimant
seeking an order for an account for profit in joint authorship must show
that the usage of the work affects its value or depletion.
Meanwhile, both Paul and Peter are fiduciaries to each other and on
each other’s behalf as regards the P-Square Musical Brand’s product.
They must show uttermost fairness, good faith and selflessness. The
protection of a vulnerable party is one of the cornerstones of a
fiduciary relationship. That is to say that since Paul and Peter are in a
fiduciary duty, they must deal fairly and in good faith with each other
when it comes to the P Square’s product. Both parties have a duty to
disclose all relevant material facts that they know about the P-Square
Musical Brand’s product when entering into a transaction with a third
party. A fiduciary cannot deal at arm’s length and a nondisclosure of a
material facts is actionable fraud.
The available remedy stipulated under the Copyright Act, 2004 for a
breach of joint authorship and co-ownership is to institute a suit for
copyright infringement and make a claim for damages, injunction, and if
possible ask for account of profits when it is proven that the infringer
is an innocent infringer as stipulated in Section 16 subsection 3 of
the Copyright Act. Passing off, unfair competition and malicious damage
could also be explored by parties in a joint authorship in seeking a
remedy.
Meanwhile, an owner or co-owner of a copyrighted work as in the case
of the P-Square Musical Brand’s products which are jointly owned by Paul
Okoye and Peter Okoye cannot be sued for infringement of that work.
This is also application to the licensee who cannot be sued if the
license was not exclusive and if consent was given by one of the
co-owner, who according to the Copyright Acts had the power to license.
Conclusively, the joint authorship relationship is a peculiar one
laced with so much emotion and ego between the parties involved. And it
is saturated with an intellectual property relationship coupled with
spices of the principle of real property and tenancy in common. In the
same vein, it also meets all the requirements of the fiduciary
relationship. Moreover, fiduciary causes of action and remedies fill the
void unattended to by the Copyright Acts.
We must note that this area of our Copyright Law has not gone through
our judicial furnace, particularly in the music arena. That is why we
have to take our search to other legal jurisdiction for materials,
particularly the English laws that have great influence on our judicial
system.