KIU Journal of Social Sciences KIU Journal of Social Sciences Copyright©2017 Kampala International University ISSN: 1996902-3; 3(1): 293–301 Originality in Copyright and the Debate on Protection of Traditional Knowledge: A View on Nigerian Law K. I. ADAM, I. A. YUSUF University of Ilorin, Nigeria 1. Introduction Copyright is perhaps the most popular and designed to protect an item fails to achieve its familiar branch of intellectual property law target, it should, at least, not become a tool of which is used for the protection of literary, oppression against such item. It thus becomes artistic, and dramatic achievements. Eligibility imperative that such a key principle should be to copyright protection rests mainly on the re-examined to safeguard the integrity of our requirement of originality which arguably is the copyright law. It is precisely that task that has main force in the creative process of all arts. been undertaken in this paper where the nature Ironically, this same condition has greatly of copyright and traditional knowledge is undermined the influence of copyright in so far considered to highlight the factors of as protection of traditional knowledge is inconsistency between the two systems. It concerned. For instance, it is generally believed further examines how the technical manipulation that copyright cannot protect traditional of originality has while seeking to achieve knowledge because the latter lacks originality. copyright objectives ended up promoting Surprisingly, materials or products derived from predatory activities against traditional traditional knowledge have overtime received knowledge which should ordinarily be its copyright protection through their collection or candidate for protection. The paper therefore compilation into books or other media of argues that the system could be strengthened to fixation. It is for this reason that some have at least offer negative protection of traditional heavily criticized the originality requirement as knowledge where the element of innovation or ineffectual or a mere subterfuge, since it fails to creativity is read into its test of originality. The stand against copyright protection of mere next section examines the general notion of collection of information or ideas which were protection of intangible materials and its originally generated by persons other than the relevance to traditional knowledge. collectors. 2. The General Notion of Protection of The truth is that the technical connotation of Intangible Property “originality” is not consistent with ordinary thinking whereby creativity or innovation is an Traditional knowledge is a form of intangible integral part of an original work. This calls the asset in that it lacks physical substance and fairness of the copyright system into question. shares the general characteristics of knowledge The point been made is that where a principle which, as Jefferson noted, is an iconic non- 293 KIU Journal of Social Sciences rivalrous public good – “he who receives an idea protection is fluid and the same legal tools can from me …. as he who lights a taper at mine, be applied to achieve the different objectives. receives light without darkening me” This The copyright system, being property-based, feature of an intangible asset necessitated the tends largely towards the positive protection intervention by law to create statutory property regime and therefore insists that its subjects from the intangible sources as a form of must fulfil established standard, including protection, and it is precisely that intervention requirement of originality for copyright, which, that is otherwise known as the intellectual as shown in the next section, is obviously hard property protection. for a local initiative as traditional knowledge to fulfil. Protection by intellectual property could take two different dimensions: either positive or 3. Nature of Traditional Knowledge negative (defensive) protection. Positive protection involves acquisition of property rights The term “traditional knowledge” refers to either through IPRs or other rights provided by a knowledge, possessed by local or indigenous legal mechanism created to protect people, in one or more societies and in one form developments of arts and science. For example, or another, including art, dance and music, a special legal provision vesting in the right- medicines and folk remedies, folk culture, holder the right to grant or withhold consent to biodiversity, knowledge and protection of plant access and use a protected subject or to claim varieties, handicrafts, designs and literature. entitlement for use of such subject qualifies as Thus, as will be seen later, several traditional positive protection. A common example of knowledge products are in the nature of works positive protection can be found in the various protected by copyright. The term “traditional” intellectual property devices such copyright, used in describing this knowledge does not patent and trademark which are based on imply that this knowledge is old or unscientific established standard of protection. There is also in nature, but that it is “tradition-based.” It is a special kind of intellectual property protection “traditional” because it is created in a manner commonly referred to as sui generis protection. that reflects the traditions of the communities, This can either take the form of property regime, therefore not relating to the nature of the liability regime or a combined system containing knowledge itself, but to the way in which that the elements of both. A property regime vests knowledge is created, preserved and exclusive rights in the owner, and fundamental disseminated. aspects of the rights are the rights to authorise, refuse, and set conditions of access to the target Traditional knowledge is collective in nature and property, while, a liability regime allows a third is often considered the property of an entire party to make use of the protected subject community, and not belonging to any single without fulfilling any entry requirements subject individual within the community. It is to liability to pay compensation after use. transmitted through specific cultural and traditional information exchange mechanisms, On the other hand, defensive protections (also for example, it is maintained and transmitted known as negative sui generis protections) are orally through elders or specialists (breeders, legal devices designed to prevent wrongful healers, etc.), and often to only a select few appropriation or unauthorised exploitation of people within a community. protected subject regardless of whether such consists of undisclosed information or publicly It is precisely some of these features of available knowledge. In the strict sense, this traditional knowledge that have been found to form of protection has a negative connotation work against its copyright protection. As will be and does not confer any entitlement but this is seen in the next section of this paper, the not always the case. In practice, the boundary features of traditional knowledge seem between positive and defensive forms of incompatible or sharply contrast with the 294 KIU Journal of Social Sciences principles and framework of copyright musical and dramatic works to copyright protection. protection is anchored on twin requirements that the production must be original and must have 4. Nature of Copyright been fixed in a definite medium of expression. Under the Nigerian Copyright Act, for instance, Copyright is one of the legal devices designed to a work is required to have an original character protect intangible materials. It protects a list of but no definition is provided for the term works including literary, artistic and musical original. What then is originality? works. However, the Nigerian Copyright Act also contains provisions for live performance of 4.2 Concept of Originality such intangible materials when they are not Literally, originality is defined as “the ability to qualified as works. think independently and creatively” or “the Generally, the author is the first owner of quality of being novel or unusual”, which copyright in a work unless it was made pursuant suggests a connection between originality and to a contract or under the author‟s employment, the concept of “creativity”. The terms in which case the owner is the person who “creativity” and “unusualness” are both abstract contracted the author or his employer as the case for a legal definition and subjective for may be. However, parties are entitled to choose determining the scope of copyright protection. the terms of their own agreement concerning Thus, the courts have had, over the years, to ownership or such transfer of copyright. A grapple with the task of providing an objective copyright owner has exclusive right to do such definition for the term “originality”. things including the reproduction of the work in any material form; communication to the public; 4.3 Judicial Approaches to Originality the performance, showing or playing to the Two main judicial approaches have evolved public; the distribution of copies to the public by globally in the conception and application of the sale or other transfer of ownership and doctrine of “originality” in copyright context, commercial rental to the public. The right of the namely the British-American model, and the copyright owner is infringed when someone civil law approach. However, the approach of exercises any of the rights reserved for the the European Court of Justice as well as the copyright