HomeBusiness DigestIntellectual Property Perspectives: Commercial value and exploitation of copyright

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Legislative framework

The ultimate objective of copyright law is to strike an equitable balance between the conflicting economic interests of the owner’s right to recoup adequate rewards for their creative ingenuity, investment in time, money, labour and effort and the public’s right of access, use and enjoyment of the products of these creative ideas at reasonable and affordable prices.

This then explains the need for exceptions or limitations whose purpose is to recognize the importance of permitting certain portions of the protected works to be made available to the public free of charge so as to advance public good.

Thus, barring exceptions or limitations and free riders (pirates and other infringers), the commercial exploitation of copyright works has multiple derivative benefits and functions to society which are indivisibly spread and diffused culturaly, socially and economically, inter alia;

Creation, nurturing, fostering and promotion of social values and sense of identity;

Cultivation of creative cultures, hence accumulation and diffusion of knowledge stocks and future reserves;

Defining the scope of the market products, trade rules and  enabling equitable market transactions and financial rewards;

Striking a sustainable balance between  productive and distributive efficiency;

Appropriation of the market value of the copyrighted works;

Enhancing the ability of the copyright owners to maximise their market position with respect to setting of a monopolistic market prices as opposed to a competitive one, and to price discriminate according to market access;

Reducing the negative effects of externality associated with  the public good provided for by exceptations and limitations, and

In broader terms, the enhancement of welfare, socio-economic growth and developmenmt through creating technological progress.
Value of copyright works

In sum, therefore, the economic value of copyright works is determined by the legal nature and scope of the exclusive economic rights bestowed upon the owner in context of the various market forces. This also hinges on the forms of exploitation that the works are the subject of.

In this regard copyright protection must facilitate optimal creation of cultural products, access to the underlying intellectual property (IP), market transactions which efficiently distribute the products to the consumers who most value it, and sufficiently reward creators in order to stimulate and spur on increased and qualitative creativity.

Licensing and assignment

Depending on prevailing market conditions, authorisation to commercially exploit copyright works by third parties may be by way of licensing or assignment, which arrangements are merely permissions to exploit the protected work without the transfer of proprietory interests or ownership of  the underlying of IP rights.

By statutory compulsion, however, exclusive licences and assignments must be in writing and be signed by the grantor or their representatives,  excludes all other persons including the grantor from excercising the exclusive right(s) covered by the agreement.

Of course, the scope of the agreement is circumscribed by the terms and conditions contained therein, namely; nature of the right covered, duration of agreement and, geographical area covered. We hereunder present the most common economic rights of exploitation.

Right of reproduction

By this right the owner has the exclusive right to prevent or authorise the copying of their protected works. It is the most basic of all exclusive rights, the most fundamental of all rights insofar as it forms the legal basis for the exploitation of various forms of works, and it pervassively embraces all categories of works regardless of mode or form of expression.

By virtue thereof the reproductive right often times comprises other rights otherwise ordinarily considered independent, which rights are stated below.

Right of translation

This right essentially refers to the expression of the protected work in a language different from their original version. Invariably, the right of translation would at times comprise the right of adaptation.

It is for this reason that where third parties are desirous of reproducing and publishing  translations of protected works they must first seek and obtain authorisation from both the translator and the owner of the original work. For, though essentially an act of infringement, the translator qualifies at law to be the legitimate owner of the translated version of the original work.

Right of adaptation

By adaptation is meant any form of modification of the protected works to create another work, including rearrangement and other alterations. In this sense the conversion of a novel into motion picture or modification of a works to make them suitable for different conditions of exploitation, such as adapting an instructional text meant for higher learning into a simplified version suitable lower levels of learning. Today adaptation has been made all the more complex by the advent of the internet which has made the manipulation of texts, sounds and images even faster, easier and cheaper.

Right of public performance

This right envisages circumstances wherein the work is perfomed at a place where a substantial number of persons who fall outside the user’s family circle and closest social acquintances can be present. In this sense, therefore, the playing of musical works embodied in recordings, whether in material or digital form, is also public performance. This is the case where phonograms and recordings are played over amplification equipment in aeroplanes, motor vehicles, hotels, restaurants, shops etc. Dramatic works are treated in the same manner.

Communication to the public

This right embraces a wide scope of activities wherein any operation involving the rendering of work perceptible by the public at a place other that from where the communication was made, especially by cable transmission.

With the advent of the internet and the digital environment the scope of the communication to the public has likewise exponentially widened in tandem therewith to include making available on-line, on-demand of virtually every conceivable copyrighted works.

Invariably this right encompases such rights as reproduction, public performance, adaptations, broadcasting, etc and for which prior authorization is a must.

Right of broadcasting

This right is normally considered as a special case of communication to the public which covers transmission of copyrighted works to the public by wireless means.

This entails the distribution of works by signal for reception by members of the public who possess the enabling equipment to decode the sound and image signals, whether by radio, television or satellite. Thus, the scope of rights to be authorized correspondingly increases depending on the nature and scope of the broadcast.

Right of distribution

This right is intended to ensure that the owner’s right of reproduction is duly respected and yields the much-sought-for financial rewards. It facilitates sales through the dissemination and distribution of tangible copies of the copyrighted works. This right is usualy limited by exhaustion of rights. That is to say, upon the first sale or transfer of ownership, the new owner of the sold copy may dispose of it as they please without the need of the copyright owner’s permission. In this sense the right of distribution carries with it connotations of lending, lease, importation, rental and resale.

Rental right

The right of rental refers to the right to permit others to commercially exploit works without disposal or exhaustion of rights. It is the flipside of the distributive right and is usually restricted to works such as musical works, phonograms, computer programmes and audiovisual works. Its justification lies in that rental of works could result in; detrimental effects on the owner’s potential market; loss of sales or renumeration, loss of reputation and goodwill, uncontrollable and unlimited copying, particularly in the digital environment.

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