Neighbouring Rights in Copyright

Neighbouring Rights in Copyright

Copyright protects and covers all creations that are a product of the creative human mind, irrespective of their form or merit and the audience that it was destined for. This form of protection is immediate and requires no formal procedure is always required as long as the work is original.

Neighbouring rights, also known as rights neighbouring to/related to copyright form three categories of people who are not technically authors of the work so creates and are performing artists, producers of phonograms, and those that are involved in television, radio and broadcasting.

Printing, broadcasting, recording, performing, translating or adaptation can be reproduced by their respective authors. Authors further own the right to financially exploit their work and prohibit unlawful uses of the same by others.

It is impossible to segregate Copyright and neighbouring rights and also to provide a separate legal regime for protection of neighbouring rights. On an international level, the interest in Intellectual Property Rights has gradually increased, so much so that WIPO, and WTO stand together, as of today, on issues of protection and compel the member nations to bring their domestic laws in accordance with international commitment which get in lucrative trade.

This clearly indicates that neighbouring rights are slowly gaining a legal identity of their own and are only moving further towards stringent legal regime to strengthen these intermediary rights

What are neighbouring rights?

Neighbouring rights refer to the category of rights granted to performers, phonogram producers and broadcasters. In Nigeria, the rights of phonogram producers (producers of sound recordings) and broadcasters are included under copyright. However, the rights of performers are protected under the separate category called “neighbouring rights.”[1] The Copyright Act protects both copyright and neighbouring rights.

INTERNATIONAL TREATIES PROTECTING NEIGHBOURING RIGHTS

International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, famously known as the Rome Convention is one of the most prominent conventions at the international level.

It was adopted in 1961. It is jointly managed and directed by the United Nations Educational, Scientific and Cultural Organization, (UNESCO), the International Labour Organization (ILO) and WIPO.

Copyright, along with neighbouring rights form a part of the TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement, 1994, which came into force on 1 January 1995. A membership of this Convention ensures that copyright holders in the respective member nations get recognition of their rights within the territory of other member nations.

Aside from the Rome convention, there are a number of other treaties that deal with the protection of neighbouring rights:

  • Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (Geneva Phonograms Convention, 1971)
  • Convention Relating to the Distribution of Programme–Carrying Signals Transmitted by Satellite (Brussels Convention, 1974)
  • Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty, 1989)
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994)
  • WIPO Performances and Phonograms Treaty (WPPT, 1996)

Apart from the TRIPS Agreement, these treaties are not genuinely global: in 2006, the Rome Convention had 83 signatories, while the Berne Convention had 162.

The description of neighbouring rights in Nigeria differs significantly from that of most other nations. Any work qualified for a neighbouring right in Nigeria is protected without any procedures or registration requirements, as long as it meets the standards of originality, fixation, and origin.

While in some countries, neighbouring rights include performers (e.g. actors, musicians, and dancers), phonogram producers, and broadcasters, the Copyright Act in Nigeria only protects two classes of neighbouring rights:

  • Live Performances
  • Expression of Folklore

Live Performances include a dramatic performance (including dance and mime); a musical performance; a reading or recitation of a literary act or similar presentation which is or so far as it is, a live performance given by one or more individuals. The rights of a performer includes the exclusive right to do or control the record A performer has the exclusive right to control the public performance; recording; live broadcast; reproduction in any material form; adaption; or dealing (by way of trade) in his/her performance. The Copyright Act also provides for criminal liability in respect of the rights of a performer.[2]

Folklore Expression Folklore, folk poetry, and folk riddles; folk songs and instrumental folk music; folk dances and folk plays; and folk arts productions, including drawings, paintings, carvings, sculpture, poetry, terra cotta, music, woodwork, metalware, jewellery, handicraft, costumes, and indigenous textiles are all covered by the legislation.

Folklore expressions are protected from the following: replication, public performance, broadcasting, cable or other distribution, and modifications, translations, and other transformations when they are done for commercial purposes or beyond their traditional or customary context. The Nigerian Copyright Commission has the authority to authorize folklore exploitation. The statute also establishes criminal culpability for folklore exploitation.[3]

TYPES OF NEIGHBOURING RIGHTS

As previously mentioned, neighbouring rights have three categories. They are performer’s right, recording rights and broadcasting rights.

Performers Rights are particularly designed to protect performers like the musicians and actors, in their performances against unauthorised recording (rendering them illegal) or live transmission of their live performances and to guarantee adequate control over and remuneration for the exploitation of recordings of their performances. Consent is required from all performers that are involved irrespective of their position, principal, lead or a supporting cast.

Once such a consent is given, it cannot be withdrawn. By law, where a sound recording of a performance has been made with the consent of a performer, the performer’s consent is further required for any communication to the public, copying or issuing of that sound recording to public. Such rights can be enforced by the representatives of the performer after his/her death.

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Broadcasting, has proven to be most efficient and the quickest way to disseminate information to the public at large. ‘Broadcasting Rights’ are those rights which have been duly conferred to broadcasting organizations such as the television, radio or other telecasting programmes known as ‘rights of broadcasting organizations.

A live performance by a singer is the original performance and a person from the audience records it and puts the audio on internet. Does this amount to broadcaster’s reproduction rights? If yes, it will give great rights to broadcasting organisations to censor information under the pretext of protecting copyright in the work.

As the producer of an event, the owner of the Copyright is the also the owner of all the rights and revenue that are the output of organisation, creation and development of the event. This obviously includes media and broadcasting rights related thereto.

Only the Copyright owner has the right to grant to others, the right to broadcast, communicate, make available and/or authorize the transmission, communication, broadcasting or making available to the public, the event so produced.

[1] Copyright Act 2004 Part 11

[2] Copyright Act 2004, S. 27

[3] Copyright Act 2004, S. 28

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