Nov 9, 2018

IP ABC—Does a database enjoy copyright protection in Nigeria?



Question 

My name is Yakubu Jang, an investment advisor and consultant in Nigeria. I publish a monthly investment e-newsletter The Yaks Investment. The Yaks Investment publishes up-to-date information on incentives in Nigeria available to investors. Apart from that, what our subscribers find most valuable about the newsletter is access to our comprehensive and up-to-date database of Agrotech & Fintech Businesses and Venture Capitalists in Nigeria. This database is accessible through a URL link which directs readers to the page where the database is electronically stored. In over 3 years, this database has greatly made The Yaks Investment newsletter become well known amongst both local and international private-equity investors with an eye on the Nigerian market.


Recently, a new e-newsletter The Ark Investment published by Ark Investments Nigeria Limited, a Lagos-based investment advisory company, was launched. Apart from the confusingly similar name it has with The Yak’s Investment, the new newsletter has also been practically “copying and pasting” our comprehensive and up-to-date Database of Agrotech & Fintech Businesses and Venture Capitalists in Nigeria in their ‘The Ark’s List of Agrotech & Fintech Startups and Venture Capitalists in Nigeria.’

I am unhappy with The Ark Investment’s act as it infringes on my copyright in the database. As the maker of the database, I invested so much resources into collecting information from various sources and systematically arranging them in a way readers and users would find invaluable. But when I instructed my lawyers Bitrus Adamu & Co to write The Ark Investment about this infringement, the company claimed that they have not infringed on my copyright. Under Nigeria’s copyright law, does a database not enjoy copyright protection?




Answer


Though the Nigerian Copyright Act does not provide for copyright protection of a database, a database may be protected as a compilation or directory as long as sufficient effort is expended on it to give it an original character. This copyright protection extends only to the compilation itself, and not to the underlying data, facts, or materials in the database. Copyright protection is irrespective of quality.



What qualifies The Yak’s Investment’s Database of Agrotech & Fintech Businesses and Venture Capitalists in Nigeria as a protectable work under the Nigerian Copyright Act?


Under copyright law, databases are protected under the concept known as compilation copyright. Compilation copyrights protect the collection and assembling of data, facts, or other materials. While some countries or international treaties specifically recognize compilation copyright and the extent of protection it enjoys, the Nigerian Copyright Act does not contain provisions for compilation copyright. Also, ‘database’ is neither defined nor referred to in the Act. But in the interpretation section of the Act, section 39 defines a literary work as including, among other works, “encyclopaedias, dictionaries, directories and anthologies” and other works similar thereto. According to the Oxford Dictionary, a ‘directory’ is “a book or website listing individuals or organizations alphabetically or thematically with details such as names, addresses, and telephone numbers”. Directories are a kind of compilation. Therefore, by virtue of section 1(1)(a) of the Nigerian Copyright Act, a database which functions as a directory is a literary work eligible for copyright protection.

So the general provisions of section 1(1)(b) and section 39 may be interpreted as protecting a database as long as the data, facts, or materials collected and arranged as a compilation serve the purpose of a directory or purposes similar thereto. Section 1(1)(b) makes literary works eligible for copyright protection.


The Yak’s Investment’s comprehensive and up-to-date ‘Database of Agrotech & Fintech Businesses and Venture Capitalists in Nigeria’ is a list compiled by Yakubu Jang and electronically available to subscribers as a database. This database is a directory of agrotech and fintech businesses and venture capitalists to enable subscribers have access to their names, addresses, and other contact details. Being a directory, it falls under literary works, thus eligible for protection under the Act.


Under copyright law, underlying data is not protected. This is why copyright in the database does not prevent any person from extracting the unprotected data from it.

A database has been defined as a collection of independent works, data, or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means.


A database of unprotectable works such as facts is protected only as a compilation.

If The Ark Investment has only extracted information from the database such as names, addresses, and contact details of the agrotech and fintech businesses featured in the original Database of Agrotech & Fintech Businesses and Venture Capitalists in Nigeria, this would not be a violation of copyright law. But The Ark Investment would be violating copyright if it copied the entire database, as long as the database meets the statutory requirement of originality.


Since what The Ark Investment has practically done is copy the entire database, this amounts to copyright infringement, subject to section 1(2)(a) and (b) of the Act.

A mere collection of data, facts, or materials does not enjoy copyright protection except there is originality.


Section 1(2) requires that (a) sufficient effort has been expended on making the work to give it an original character and (b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced, or otherwise communicated either directly or with the aid of any machine or device. Since the database is electronically stored and accessible on webpage, this is adequate.

Because a database is a collection and assembly of preexisting data, facts, or materials, how the maker selects and arranges these to create an original work is what determines whether it enjoys copyright protection. Sufficient effort must have been expended on the collection and assembly of pre-existing data, facts, and materials facts; the selection, or arrangement of those materials; and the creation of the database as an original work of authorship.


How about The Ark Investment’s act of publishing a similar investment newsletter?

Any person has the right to publish a newsletter, whether a similar newsletter exists or not.

One of the fundamental concepts of copyright law is that copyright does not protect ideas, information, or facts but instead protects the form in which those ideas, information, or facts are expressed. This is known as the idea-expression dichotomy, which means that copyright will not be infringed when works based on the same ideas are independently created, provided the way in which those ideas have been expressed is not copied.

Therefore, Yakubu Jang has no copyright in the idea for an investment newsletter.


What about title and straplines of the newsletter, including articles on investments?

Names and titles cannot be accorded copyright when they are not substantial enough to attract copyright in themselves.


Titles and names can be protected as trademarks. If trademarked, you may sue The Ark Investment for trademark infringement, since The Ark Investment newsletter sounds confusingly similar to The Yak Investment. If The Yak Investment has not been trademarked, you may institute an action for passing off since The Yak Investment enjoys goodwill and reputation in Nigeria’s investment market. You must however prove that The Yak Investment really enjoys goodwill and reputation and that The Ark Investment is unduly benefiting from this goodwill by illegally coming up with a confusingly similar newsletter, The Ark Investment newsletter. Therefore, the title of the newsletter will not attract copyright protection. Also, any strap lines such as ‘Invest wisely with Yaks’ or ‘Your most reliable investment newsletter’, etc will be regarded as too trivial or little in terms of creative effort to attract copyright. But the logo, if any, of The Yaks Investment newsletter may attract copyright protection as an artistic work.


Apart from the database, analysis and explanations on investment opportunities published as articles in the newsletter would attract copyright protection as long as they are original. You or the authors of these articles would have no doubt exercised a sufficient degree of skill, applied knowledge, or used judgment in forming opinions by evaluating and comparing the different investments opportunities in the Nigerian market. Subject to originality, such articles are protected by copyright.


Therefore, if The Ark Investment also copied any substantial part of these articles without authorization, this amounts to copyright infringement.


Consult an IP lawyer or law firm to help you determine all the legal options available to you.

Best wishes

IP ABC


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