Preem & Partners | 13th March, 2025
Copyright ownership plays a pivotal role in Nigeria’s thriving creative and business sectors, shaping the rights of authors, artists, software developers, musicians, filmmakers, companies, innovators, and other players in the media and entertainment industry. As intellectual property becomes increasingly valuable in the digital age, understanding who holds the rights to creative works is essential for protecting interests and ensuring fair compensation.
The Nigerian Copyright Act, 2022 [subsequently referred to as “the Act”], which replaced the previous 1988 legislation, introduces key reforms that address modern challenges, including digital content protection and contractual ownership structures. This article explores copyright ownership under the Act, examining legal provisions, assignment of rights, and the broader implications for businesses and creators.
Under section 28(1) of the Act, the original owner of a copyrighted work, known as the author or creator, is typically the person who created it. The Act grants creators exclusive rights to their works, including reproduction, distribution, public performance, and adaptation. This means that:
Exception exists where the creators, authors, artists, software developers, musicians, filmmakers, and other innovators, by contract, agree that ownership – in part or in full – should go to a third party other than the default owner.
For works created in the course of employment, ownership depends on the type of employer and the terms of employment.
If an employee of the government, an employee of an agency of the government, a contractor, or a freelancer creates a work within the scope of their employment, the employer is considered the owner by default under section 28(2) of the Act. However, if the work is created outside the scope of employment, the employee retains ownership, although the employer may have a limited right to use it.
Since Section 28(2) of the Act does not explicitly address private-sector employees, it may be inferred that works created by an employee under a contract of service arrangement may initially vest in the employee. However, courts may consider the purpose of employment, the nature of the work. And the reasonable expectations of both parties. For instance, if an employee is hired specifically to create literary, artistic, or musical works for an employer, a court may infer employer ownership even in the absence of an explicit agreement.
Thus, if a software developer employed by a tech company, say Bromuno, develops software as part of their job duties, the ownership of such work may depend on the employment contract, job description, and employer expectations. If no agreement exists, ownership may be contested, with courts likely considering the employer’s role in commissioning and facilitating the work. However, if the software developer creates a separate software project on their own time and resources, it can be inferred that the ownership of the work would be in favor the employee.
While the Act does not explicitly address employer-employee relationships beyond Section 28(2), prevailing legal principles suggest that ownership of works created under a contract of service or contract for service can be determined by agreement. In the absence of an agreement, courts may interpret ownership based on established employment and copyright law principles. In Joseph Ikhuoria v. Campaign Services Ltd. & Anor, the Mr. Joseph, an employee of Campaign Services Ltd created certain works during his employment and claimed ownership of the copyright in works created by him. The employment contract specified that any works created or prepared for advertisement by the him would have their copyright vested in the employer defendant, and the court held that, based on the terms of the employment contract, the first defendant was the owner of the copyright in the works created by the plaintiff.
Although decided under the Copyright Act of 1970, the case can be a pointer to the court’s decision under the 2022 Act where there is a contract regarding the ownership of a work in an employer-employee relationship. It may also be argued that the case illustrates that, in the absence of explicit contractual provisions, courts may consider the purpose of employment and the nature of the work to determine copyright ownership.
When an individual or company commissions a work such as hiring a photographer or graphic designer or a painter or a drawer, or videographer or a video producer, section 28(3) of the Act deems the individual or company who commissioned the work to have a non-exclusive licence to exploit the work for non-commercial purposes and has an automatic entitlement to restrain the unauthorised publication, exhibition, broadcasting, communication, distribution and making available of copies of the work to the public.
The above does not signify ownership, although they have such elements. Put differently, an individual or company who commissioned the work does not automatically own the work and does not automatically have the right to exploit the work for commercial purposes in the absence of an agreement granting such rights.
Copyright ownership of the commissioned work, whether owned by the commissioner [individual or company who commissioned the work] or the creator [the photographer, graphic designer, painter, drawing artist, videographer or video producer], depends on the contractual arrangement. Going by popular practice, the creator may retain ownership if there is no agreement, though the commissioner may have implied usage rights.
When multiple people collaborate on a work or project with the intention of merging their contributions into a single, inseparable whole, the ownership of the work is determined by the rule of ‘joint or co-authorship.’ The rule of joint or co-authorship vests ownership of the joint work in all the authors of the work who share joint interest in the entire or any part of the work. This means that in joint authorship, the co-authors share ownership of the copyright, and their interests are merged into an inseparable or interdependent whole.
It must be noted that although section 30(6) of the Act vests ownership in all the authors by default, a co-author may exclude himself from ownership by agreement. It must also be added that the inseparable and merged state of the ownership regardless, the remuneration and royalties accruable to each co-owner may be determined by agreement of the parties.
When multiple people collaborate on a project by bringing their literary or artistic works together for publication as separate works, ownership is first determined by what we chose to call ‘the rule of collectivity.’ In the absence of an agreement, the rule of collectivity in sections 29(a) and 108(1) of the Act declares the person on whose initiative or direction the work was created as the owner of the collaborative work.
Despite the person responsible for the selection and arrangement of the collection being the default owner, the authors of the works incorporated in a collective work have the right to exploit their works independent of the right in the collective work. This means each individual contributor retains ownership of their own work and can use it independently without requiring consent from the owners of the collective work. The rule, as extended by section 29(b) of the Act, operates by law in the absence of any agreement.
For example, if a photographer contributes a photo to a magazine, the magazine owner has copyright over the entire issue as a collective work, but the photographer still owns the copyright to their individual photo and can use it elsewhere, in the absence of any agreement stating otherwise.
To better understand this, one must first understand that a collective work is not necessarily one of joint authorship. A collective work is a compilation of separate contributions from different authors, put together under the initiative of a person or entity. Joint authorship, on the other hand, means two or more people created a work together with the intention of merging their contributions into a single, inseparable whole.
Although the Act does not specifically address AI-generated works or artificial intelligence-generated content (AIGC) [that is, works created without human authorship], the prevailing interpretation is that the person who directs the AI, say the programmer or artist, may be deemed the copyright owner. This interpretation is in line with section 2(2)(a) of the Act which mandates that for a work to be eligible for copyright protection, “some effort” must be expended to give it an original character.
So, although the section or the Act does not explicitly address AIGC, the “effort” requirement may imply that a human element of creative input or guidance is necessary and the person who directs or significantly influences the output may be deemed the author and owner. While Nigerian courts have yet to test this interpretation, the key factor will likely be the role of human input, particularly in crafting prompts and modifying parameters to achieve originality. If AI autonomously generates a work, ownership under the Act remains unclear, leaving courts to determine rights based on contract terms or emerging legal interpretations.
A landmark ruling that shapes emerging legal interpretations is the case of Li v. Liu which was ecided in December 2023. In that case, the Beijing Internet Court ruled that an AI-generated image created by the plaintiff, Li, using Stable Diffusion, qualifies for copyright protection and was owned by Li. The decision was based on Li’s intellectual input, including the selection of prompts and adjustments made to generate the image.
Section 30 of the Act allows works with a single owner or of joint ownership to be assigned [sale] or licensed [permitted use] to third parties by the owner or any of the owners of the work, because copyright is viewed as a movable property. Assignment or exclusive licence of copyright is only valid when in writing and executed.
Generally, assignment [transfer of the work] does not transfer ownership to the third party, unless it is expressly stated in the assigning agreement. So, selling or transferring the physical copy of a work does not mean transfer of the copyright or grant of license to exploit the work.
If an artist sells an original painting, for instance, the buyer owns the physical artwork but not the right to reproduce, distribute, or adapt it unless explicitly agreed that ownership and ownership right in the copyright passes with such sale. Similarly, assignment of copyright or grant of a license to use a work, does not automatically translate into transfer of ownership of the physical copy of the work, unless it is expressly agreed in writing.
The Nigerian Copyright Act, 2022 significantly modernises copyright law by clearly delineating who owns what under various circumstances. Whether it is the original creator, an employer, a commissioner or joint collaborators, the Act allows ownership of a work to be determined by an agreement of the parties – whether by original ownership, assignment, or licence. In other words, the ownership under the Act is default ownership. And like most default things, the ownership and interest over a copyrighted work can shift by a valid agreement.
Copyright ownership grants numerous rights and benefits to the rights holder, including the rights of reproduction, publication, distribution, performance, adaptation and translation, broadcasting, leasing, attribution, objection to derogatory use, remuneration and royalties, as well as rights to assignment, leasing, and remedies for infringement. The economic and moral advantages of these rights make it essential for businesses and creators to ensure that ownership of a copyrighted work is vested in the intended person or entity, whether an individual or a corporate body, both at the time the work qualifies for copyright protection and thereafter.
Understanding the significance of contractual agreements in determining copyright ownership in any business relationship cannot be over-emphasised. The case of Joseph Ikhuoria v. Campaign Services Ltd. & Anor is a testament to this statement.
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