The question may then be asked; since the Abami Eda, Fela Anikulapo Kuti, is widely reputed to have originated Afro Beat music, is it an infringement of Fela’s copyright for Dede Mabiaku or Alariwo or even Femi to perform Afro Beat? Certainly not! It has become generally accepted that a person may create a new work in the same general form as an already existing work and there will be no infringement of copyright “provided he does so from his own resources and makes the work he so originates a work of his own, by his own labour and industry bestowed upon it”.
From the above, if Lagbaja was to perform or make a new recording of Fela’s mega hit tune, “Shakara”, without authorisation or compliance with the formalities required by law, he may be held for infringement of copyright as would be the case if he did not obtain necessary permission for recording his own version of Chris Ajilo’s “Eko Gbagbere”. However, the fact that some people consider “CooluTemper” to be Afro Beat does not make Lagbaja a copyright infringer. While “Coolu Temper” and “Shakara” may belong to a similar musical genre, each of these beautiful pieces of music has been created with independent skill. Taking it further, we all can play our own version of reggae music all we want, but if we reproduce Bob Marley’s “No Woman no Cry” without authorisation or following the formalities prescribed by law, katakata may blow!
Following the ground-breaking success of the home video movie, “Living in Bondage” by Ken Nnebue’s Nek Video, which many claim to have given birth to what we today know as Nollywood, many similar home video movies emerged in the Nigerian market in quick succession clearly to exploit the success of “Living in Bondage”. While some of these videos may be poor imitations of “Living in Bondage”, no infringement of copyright may have occurred as long as they posses substantially independent story lines.
In determining originality, emphasis should be on the novelty or newness of the expression itself and not the novelty of the form of expression. While the form of expression may be new, it need not be. Applying this principle to our previous discussion, Afro Beat music is a form of expression while Shakara and Coolu Temper are different expressions using the Afro Beat form. The copying of Afro Beat is not an infringement of copyright but the copying of Shakara is an infringement.
Originality with respect to copyright does not suggest that a similar work has not been created. It means that the expression has not been copied. A similar position was taken by Lord Reid with respect to literary works in University of London Press Ltd. V. University Tutorial Press Ltd. Likewise, in the words of Justice Patterson in Ladbroke Ltd. V. William Hill Ltd, “the originality which is required relates to the expression of the thought. But the Copyright Act does not require that the expression must be in an original or novel form but that the work must not be copied from another work – that it should originate from the author”.
The world-wide success of Chinua Achebe’s “Things Fall Apart” has inspired many African writers to write in Achebe’s form. None of these novels may correctly be said to have infringed Achebe’s copyright.
What then is the exact amount of effort which the author must make to give a work an original character? The labour, knowledge, judgement, skill, etc. which a creator may bestow upon a work to give it an original character cannot be defined in precise terms. In every case, it must be determined with regards to the special circumstances of the case.
It may also need stating that despite the fact that copyright In another work may have been infringed in the making of a new work, the new work will still be eligible for copyright as long as it is substantially not a copy of the other work.
In the area of patents, once a work enjoys patent protection, no similar or identical work can enjoy the benefits of patent rights. In the field of copyright however, it is indeed possible to have a similar or identical work being protected by copyright as long as both works were independently produced and any similarity is simply coincidental.
The English judge, Justice Sargant stated this clearly in Corelli v. Gray when he said “no absolute monopoly is given to authors analogous to that conferred on inventors of patents. That is to say, if it could be shown as a matter of fact that two precisely similar works were in fact produced wholly independently of one another, I do not think that the author of the work that was published first would be entitled to restrain the publication by the other author of that author’s independent and original work”.
Just remember that for a literary, musical or artistic work to enjoy copyright protection in Nigeria, some effort in the sense of independent skill, industry, experience or judgement must have been expended in producing the work. In other words, the work must be original.