Fair Use And Fair Dealing: An Analysis Of Copyright Law In Nigeria

By Oyetola Muyiwa Atoyebi, SAN

INTRODUCTION

Copyright is an area of Law in Nigeria that is confronted by gross indifference, with numerous people unaware of its existence or the peculiarities of the protection it provides. This is quite disheartening as owners of creative works record recurring losses as a result of diverse copyright infringement by those knowledgeable in copyright protection and a host of those completely oblivious to 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 benefits for his efforts and to encourage creativity, innovation and originality. On the flip side, Copyright also caters 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 covers any creative work contained in a tangible form including videos, music, photographs, books, paintings and the like. 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 17^th 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 works, sound recordings, broadcasts and Audiovisual (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 categorised 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. Audiovisuals, 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 authorisation or transfer of the rights by assignment or testamentary disposition by the owner or by operation of law[2]. This protection covers the production, publishing, making or adaptation of a work in either its original form or its recognisable derivations[3].

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 including an order of injunction, conversion, account for profits, inspection and seizure are civil remedies available to the owner. Section 44 of the 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 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 exceptions 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 nearly impossible to define because of the various complexities of its coverage and application. It can be described as a defence against 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 acknowledgement 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 unauthorised 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 provision to Section 20 (1)(a) which is an offshoot of the provisions on fair use rights in Section 107 of the U.S. Copyright Act. They are:

• Purpose and character of its usage,
• Nature of the work,
• Amount and substantiality of the portion used in relation to the work as a whole, and
• Effect of the use upon the potential market or value of the work.

These factors listed above are essential in assisting the court determine whether an unapproved usage of a work is covered by the defence of fair dealing because the circumstances of cases differ and each must be decided on its own merit. These factors take into consideration the manner the work  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 the 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 makes 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. This postulates that the provisions of the Act, inclusive of the defence of Fair dealing, are to protect the author and his work while encouraging the use of the work. This 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 tyranny by either party.

SNIPPET

The principle of fair dealing and fair use allows a user to copy a work without the owner’s permission subject to certain limitations.

KEYWORDS:

Copyright, Copyright Act, Copyright Infringement, Fair use, Fair dealing.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Intellectual Property Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Farida Ajibade

Farida is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Copyright Law Practice.

She can be reached at ajibade.farida@omaplex.com.ng

[1] Osborn’s Concise Law Dictionary, 3rd ed p.90

[2] Section 30(1) Copyright Act 2022

[3] Section 36 Copyright Act 2022