AJIBADE FARIDA
TOPIC: Fair use and fair dealing: An analysis of
copyright law in Nigeria
INTRODUCTION
Copyright is an area of Law in Nigeria, that is confronted by gross
indifference, with numerous unaware of its existence or the
peculiarities of the protection it provides. This is quite
disheartening as owners of creative work record recurring losses
as a result of diverse copyright infringement by those
knowledgeable in Copyright protection and a host of those
completely oblivious of the legal implication of their actions.
The crux of Copyright is to protect the owner and his intellectual
property, ensuring that he receives commensurate and maximal
benefit for his efforts and to encourage creativity, innovation and
originality. On the flip side Copyright also cater to users by
providing access and regulated use of creative works.
WHAT IS COPYRIGHT
Osborn defines Copyright as “the exclusive right of printing or
otherwise multiplying copies of, inter alia, a published literary
work; that is, the right of preventing all others from doing so” 1.
Simply put, it can be defined as a legally protected, assignable
right given to the owner of a creative work for a defined period, to
produce, reproduce and distribute or display his work. Copyright
1
Osborn’s Concise Law Dictionary, 3rd ed p.90
covers any creative work contained in a tangible form including
videos, music, photographs, books, paintings and the likes. The
right is vested in the owner or inventor of the work and where
there are multiple inventors, they are regarded as co-owners.
The Principal legislation for Copyright in Nigeria is the Copyright
Act of 2022, assented to on the 17th of March, 2023 by President
Muhammed Buhari repealing the Copyright Act LFN 2004.
Section 2 of the Act provides for the works eligible for copyright
and they include: Literary, artistic, musical works, sound
recordings, broadcasts and Audio visual (formerly itemized as
cinematographic works). Sub-Section 2 further provides that
efforts must have been expended in the creation of the work, the
work must enjoy an “original character” by reason of these efforts
and the work must have been produced in a tangible form.
Section 9 of the Copyright Act provides the exclusive rights
enjoyed by the Owner of the work. The owner retains the right to
reproduce, publish, perform, translate, distribute and broadcast
the work.
Section 19 of the Copyright Act provides duration for
Copyright categorized by the nature of the work. Seventy years
from the end of the year that the Author dies where it is literary,
musical or artistic work owned by an individual, seventy years
from the end of the year of first publication where the owner is a
government or corporate body. Audio visuals, broadcasts and
photographs enjoy protection for Fifty years after publication or
fifty years after creation, where not published.
Without outright application and registration, by virtue of
existence, works eligible for Copyright are protected in Nigeria.
The Nigerian Copyright Commission, the agency that administers
the Copyright Law in Nigeria, has a system known as the Nigerian
Copyright e-Registration System where owners can particularly
register their work, if they opt to, in order to lay to rest doubts
that may arise as to the time of creation of the work in the event
of a dispute.
COPYRIGHT INFRINGEMENT IN NIGERIA
Copyright would be expressed to be infringed where a person or
agency other than the owner does any act exclusive to the owner
without the consent or authorization or transfer of the rights by
assignment or testamentary disposition by the owner or by
operation of law2. This protection covers the production,
publishing, making or adaptation of a work in either its original
form or its recognizable derivations3.
The Court with Jurisdiction is the Federal High Court sitting within
the jurisdiction of the alleged infringement. The remedies
available can be civil or criminal depending on the circumstances
of each case. Award of general or special, punitive or exemplary
or nominal damages is a civil remedy available to an owner.
Others include an order of injunction, conversion, account for
2
Section 30(1) Copyright Act 2022
3
Section 36 Copyright Act 2022
profits, inspection and seizure are Civil remedies available to the
owner. Section 44 of Copyright Act equally provides for
criminal liability.
THE DEFENCE OF FAIR DEALING AND FAIR USE
As earlier discussed, Copyright infringement attracts criminal or
civil liability depending on the nature of the infringement. There
are some defences to Copyright infringement. The rationale
behind the existence and allowance of these exceptions even by
the Copyright Act is to ensure that creative works can still be
used by the society as long as it does not affect the rights of the
owner. This means that works protected by Copyright can still be
available for use subject to Statutory limitations, attracting no
liability. Notable amongst these exception is Fair dealing and fair
use.
The peculiarity of the defence or exception of fair dealing is that it
can serve as an escape for a party despite the commission of acts
that should ordinarily attract liability. The principle of fair dealing
and fair use allows a user to copy a work without the owner’s
permission subject to certain limitations.
Fair dealing and fair use are used interchangeably with fair use
being obtainable under the United States Copyright Act.
Conversely, what is provided for in the Nigerian Copyright Act
2022 is “Fair dealing”. The concept is near impossible to define
because of the various complexities of its coverage and
application. It can be described as a defence to copyright
infringement that permits the usage of a work without the
Owner’s permission. We would however examine the principle in
order to get a clear cut understanding.
Under the Second Schedule of the Old Copyright Act, Fair dealing
was restricted in scope as the Act provided that fair dealing for
the purposes of research, private use, criticism or review and
other listed purposes would excuse a user from liability despite
being used without the permission of the Owner of the work. The
implication of this provision is that any use that does not fall
under this restrictive definition would be regarded as an
infringement if same is done without the consent of the owner.
The Copyright Act 2022 provides a more open definition of this
exception. Section 20 (1)(a) provides that fair dealing purposes
are acts such as private use; parody, satire, pastiche, or
caricature; non-commercial research and private study; criticism,
review or the reporting of current events which shall include
acknowledgment of the work and its author. The list continues till
paragraph (r), providing a long list of exceptions, though not
exhaustive. The inclusion of the phrase “such as” before the list
presupposes that this list is merely a guide and not an exhaustive
list, meaning other similar use can be accommodated.
The inclusion of all of these acts as fair dealing does not however
empower a user to indiscriminately use the work of an author
unauthorized as this would defeat the purpose of the protection
granted to owners of creative work. This means that where it can
be shown that the defence is merely a cover for the flagrant
disregard of the rights of the Author, this defence would not avail
as it is not meant to be wielded as a weapon to be abused.
Therefore, reproducing in its exactness, the entirety of an
author’s work cannot be held to be fair dealing irrespective of its
suitability as a work for private study or review.
The Copyright Act further gives factors to determine whether an
act qualifies as fair dealing in the proviso to Section 20 (1)(a)
which is an offshoot of the provisions on fair use right in section
107 of the U.S. Copyright Act. They are:
(i) purpose and character of its usage, (ii) nature of the work,
(iii) amount and substantiality of the portion used in relation to
the
work as a whole, and (iv) effect of the use upon the potential
market or value of the work.
These factors listed above are essential in the assisting the court
determine whether an unapproved usage of a work is covered by
the defence of fair dealing because circumstances of cases differ
and each must be decided on its own merit. These factors take
into consideration the manner the work is being dealt with and
the quantum of the use. It also checks whether the author’s right
to profit from his work has been tampered with. What this ensures
is that while the user can enjoy use of the work, it must not be to
the detriment of the Author.
The failure of the Act to clearly define the boundaries of what
constitutes private use, parody, non-commercial research,
criticism or review leaves the court with the absolute power to
interpret the provisions of the law in light of the circumstance
without a defined boundary as to what make up any of these acts
and what acts would be deemed as excess of this provision.
CONCLUSION
Section 1 of the Copyright Act 2022 provides that the
objective of the Act is to protect the right of Authors and to
guarantee access of users subject to limitations and restrictions,
putting the rights of the Author and the interest of the user at par
and equally important. What this postulates is that the provisions
of the Act, inclusive of the defence of Fair dealing, is to protect
the author and his work while encouraging use of the work and
the principle is couched in a manner that does not unnecessarily
oppress any party. This is why the court is always cautious in the
application of the defence of fair dealing to ensure that it is not
used as a tool of creative tranny by either parties.
Snippet: The principle of fair dealing and fair use allows a user
copy a work without the owner’s permission subject to certain
limitations. Keywords: Copyright, Copyright Act, Copyright
Infringement, Fair use, Fair dealing.