Posthumous control of copyright, its limitations and the public interest
Authors: Desmond Osaretin Oriakhogba and Gloria Kanwulia Adeola-Adedipe
Affiliations: LLM, LLB (UNIBEN), PhD (UCT, Cape Town), Senior Lecturer, University of Venda, Thohoyandou, Limpopo Province, South Africa; LLM (Hertfordshire), LLB, Research Fellow, Nigerian Institute of Advanced Legal Studies (NIALS)
Source: Journal of Comparative Law in Africa, Volume 8 Issue 2, p. 32 – 62
Conducted as a desk research, this paper examines the interface between copyright and succession laws, the notion of testamentary freedom, its limitations and justification for its restriction. The paper draws on this examination to discuss the freedom of authors to dispose their copyright under testate and intestate arrangements, and posthumously control the use of their works under the Nigerian Copyright Act. Following this discussion, the paper identifies and examines the relevant provisions of the Copyright Act that can limit the capacity of authors to posthumously control the use of their works in Nigeria. The paper contends that authors’ liberty to transfer their copyright by testamentary disposition or operation of law, and control the use of their works posthumously, without public interest friendly limitations, can create an imbalance within the copyright system. This paper addresses the issues of whether public interest objectives may be achieved through the limitation in the extant Copyright Act, especially given the propensity for copyright misuse by authors in death, as well as during their lifetime, and what policy options may align the public interest with authors’ posthumous control of copyright. In resolving these questions, the paper draws on instances of copyright misuse in the United States of America (USA) and South Africa and situates them within the Nigerian context to shed light on the issues discussed.