Do you know that the New Copyright Act, 2022 is Silent about A Non-Commissioned Photograph?
By Mujahid Muhammad Musa (MIAR)
In the case of a Non-commissioned photograph, the Act is silent about that and the Act clearly interpreted a copyright as “a copyright under the Act.”
I’m not concerned about the commissioned photograph because the Act has addressed that issue by giving the commissioner a non-exclusive license and the commissioner can sue as a proper party to that effect.
It’s quite principle of copyright regime that a photographer will own the copyright in the photograph (irrespective of it being commissioned or non-commissioned) because he has expended his skill, labor and time to give the photograph an originality.
This brought me to a hilarious question been asked by my professor: “can someone snap you without your consent? What will be the position of that photo? “I got hung” as a cliché used by fellow students.
To expand the scope further, in any photograph there’s originality and fixation and this makes the photographer and owner of the copyright. However, the Act is silent about the person who appeared in the non-commissioned photograph.
In line with this, going by the canon of interpretation: “Expressio Unius est exclussio alterius,” the person appeared in a non-commissioned photograph has no (even) a non-exclusive license in the work. He cannot object to any reproduction under the Act; his right has not been recognized under the Act.
Therefore, this appears to me as being so much unfair to the person appeared in the photograph. The person whose right to privacy in the photograph is at stake should have been given a non-exclusive license also and be expressly mentioned by the Act as a proper party in an action for breach of right in the photograph (as it affects him). This would have been very much in line with the provision of section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The Constitution has not defined what privacy is. I am of the view that whenever a matter, to the effect that the reproduction of a photograph is prejudicial to the right to privacy of the person appearing/appeared in a non-commissioned photograph, the court will give the provision of the constitution a full effect.
The legislature should have recognized the right in a non-commissioned photograph and this would have elevated the status of the Act (to that effect) to be much more in line with the constitution.
REFERENCES:
1- Section 2 of the Copyright Act 2022
2- Section 28 of the Copyright Act 2022
3- Section 36 of the Copyright Act 2022
4- Section 108 of the Copyright Act 2022
5- The 1999 Constitution of the Federal Republic of Nigeria (as amended).
About the Author:
Mujahid Muhammad Musa (MIAR) is a Member Institute of ADR Registrars and a law student at Usmanu Danfodio University Sokoto.
Can be reached via: 09030834295 or mujahidmuhammadmusa@gmail.com
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