FAIR USE AND FAIR DEALING; AN ANALYSIS OF COPYRIGHT LAW IN NIGERIA
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ABSTRACT
Copyright is gradually assuming prominence in this country. This is not surprising because of its economic significance. Copyright seeks and aims at protecting the author’s economic interests nationally and internationally. It is not only of economic significance to the authors but also to the public in general.
Copyright does not prohibit all copying or replication. It is not one of those rights that admit of no exception. This shows that certain acts are exempted from copyright control. The Copyright Act, especially schedule two thereto, specifies a number of exceptions from the general principle of copyright control. The exceptions do not have general application to all the eligible works. Its application depends on the nature and type of a particular work. All the exceptions specified in the Second Schedule to the Act apply to Literary, Musical, Artistic Works and Cinematograph Film; they have limited application in respect of Sound Recordings and Broadcasts. Sound Recordings are only subject to paragraphs (a), (h), (k), (l), and (p) of the Second Schedule, while at the same time paragraphs (a), (h), (k), (n), and (o) apply to broadcasts
There are also some other special exceptions specified under the third schedule in respect of sound recordings of musical works. Moreover, other exceptions abound throughout the length and breadth of the Copyright Act.
These exceptions make it clear that copyright in work is not infringed by any person whose act comes within the context of any of the specified exceptions.
The aim of this work as the title suggests is to discuss the relevant provisions of the Copyright Act that protects Fair Dealing. Infringement under the law is not condoned but when the act or omission is carried on under some special circumstances of Fair Dealing, it is not regarded as infringement under the law.
The copyright law made provisions for the protection of intellectual works, criteria for eligibility, originality, fixation and duration of copyright works as well as sanctions or punishment for infringement of such works but the copyright law made copious provisions for exceptions. For instance, it is not infringement by doing any of the acts reserved for the copyright owner by way of Fair Dealing for purposes of research, private use, criticism or review or the reporting of current events. It is these exceptions and others that are regarded as Fair Dealing under the Copyright Act.
With a view to achieving the purpose of this the work, is divided into Chapters each Chapter dealing with a distinct aspect of the Copyright Act.
The introductory aspect of copyright, including Meaning of Intellectual Property, Copyright, the Rationale for Copyright Protection, as well as the Nature and Scope of Copyright will be discussed in Chapter One.
The Historical Evolution, Ownership, Duration, Transfer, and Transmission, Copyright and other related Rights (Neighboring Rights) and the Socio-economic impact of Copyright Act in Nigeria, Administration of Copyright in Nigeria and Challenges to Effective Copyright Administration in Nigeria will be taken care of in Chapter Two.
Infringement of Copyright Meaning of Infringement, Modes of Infringement, Proof of Copyright Infringement, Enforcement and Remedies and Exceptions to Copyright Control is dealt with in Chapter Three.
The Concept of Fair Dealing in Copyright Protection, Nature of Fair Dealing in Copyright Protection, Rationale for Fair Dealing as an Exception to Copyright Protection forms the Fourth Chapter.
Chapter Five deals with Fair Dealing and Challenges to Copyright Protection, Challenge of Copyright in the Digital Age, Challenge for Educators, Copyright Act: Copyright Challenge in Nigeria
Chapter six is the concluding part of the thesis, which includes the recommendations
made
TABLE OF CONTENTS
Title Page i
Acknowledgement iv
CHAPTER ONE: INTRODUCTION
Meaning of Intellectual Property 1
History of Intellectual Property 3
Meaning of Copyright 6
Rationale for Copyright Protection 13
Nature, Scope and Subsistence of Copyright 21
Criteria for Protection 36
CHAPTER TWO: NATURE AND EFFECT OF COPYRIGHT PROTECTION
Historical Evolution of Copyright 39
Ownership of Copyright 43
Duration of Copyright 50
Transfer and Transmission of Copyright 51
License 55
Copyright and Other Related Rights (Neighbouring Rights) 60
The Socio-economic impact of Copyright Act in Nigeria 71
Administration of Copyright in Nigeria 75
Challenges to Effective Copyright Administration in Nigeria 84
CHAPTER THREE: INFRINGEMENT OF COPYRIGHT AND EXCEPTIONS TO COPYRIGHT CONTROL
| Meaning of Infringement | 96 | |
| Modes of Infringement | 103 | |
| Proof of Copyright Infringement | 132 | |
| Enforcement and Remedies | 136 | |
| Exceptions from Copyright Control | 155 | |
|
CHAPTER FOUR: THE CONCEPT OF FAIR DEALING PROTECTION |
IN |
COPYRIGHT |
| Fair Dealing as a Concept in Copyright | 169 | |
| Nature of Fair Dealing in Copyright Protection | 172 | |
| Rationale for Fair Dealing as an exception to Copyright Protection | 176 | |
|
CHAPTER FIVE: FAIR DEALING AND CHALLENGES PROTECTION |
TO |
COPYRIGHT |
| Challenge of Copyright in the Digital Age | 183 | |
| Challenges for Educators | 191 | |
| Fair Use and Professional Responsibility | 192 | |
| Restrictions for Fair Use | 193 | |
| Copyright Act: Copyright Challenge in Nigeria | 195 |
Fair Dealing as a Balance between User Right and Copyright Protection 198
Challenges to Copyright Protection Generally 210
CHAPTER SIX: CONCLUSION
Conclusion / Recommendations 218
Bibliography
CHAPTER ONE
INTRODUCTION
1.0 Meaning of Intellectual Property.
The term Intellectual property could simply be said to be that which deals essentially with ownership. There is generally no one acceptable definition of the term Intellectual Property but it could be said to be that which relates to all or any of those categories of property, which are acquired through intellectual creativity. They are normally intangible in nature and are subject to ownership with the entire attendant legal incidence.
Intellectual Property is a legal field that refers to creations of the mind such as musical, literary and artistic works; intentions, and symbols, names, images and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under Intellectual Property Law, the holder of one of these abstract “Properties” has certain exclusive rights to the creative works, commercial symbol, or invention, which is covered by it. The laws of some government have recognized forms of intellectual property for a few centuries, but other government’s scholars question the legitimacy and philosophical basis of such laws. Several international treaties since the 19th century have standardized many aspects of the law, but the laws and enforcement still vary widely from one jurisdiction to another. Furthermore, the understanding and observance of Intellectual Property Laws by individuals are widely varied.
Obviously this Branch of Law has grown enormously over the years thus leading to its separation from the wider and pre-existing prawns of property law. This may be attributed to the growth and development in science and technology. The introduction of this technology has led to learning and inventions being spread more widely to the masses. From the foregoing, one would be faced with the inevitable question, what
sorts of intellectual creations are covered by the law of intellectual property.
Basically, there are four major subjects of intellectual property law viz: Copyright, Trademarks, Patents and Industrial Designs. The last three are usually called “Industrial Property” mainly because they substantially concern industrial processes and application.
Copyright operates to control the copying of intellectual materials existing in the field of literature and the arts, protecting the writer or artist against the unauthorized copying of his materials thereby giving the copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. The primary concern of Copyright is with expression of ideas, such expression boarding mainly on originality and not necessarily novel and they may be in the form of literary, artistic, musical or other works of art. The right generated or acquired through Copyright is conferred automatically in Nigeria without registration.
Trademark on its own deals chiefly with marks that are used or proposed to be used in relation to goods for the purpose of indicating a connection between the goods and the proprietor of the mark. It is a distinctive sign which is used to distinguish the products or services of different businesses. It must be mentioned at this point that such mark or symbol must be used in the course of trade. This right being a monopoly right is registerable and upon registration the right is protected both under statute and common law or passing off as was applied in the case of Patkun Industries Ltd V Nigeria Shoes Manufacturing Co. Ltd 1
A Patent on its own is an exclusive right granted by law to an inventor guaranteeing him the exclusive use and exploitation on the industrial process as invented. A Patent is equally registerable. It gives the patent holder a right to prevent others from practising the invention without licence from the inventor for a certain period of time. The right to an Industrial Design similarly consist of the right in the reproduction and
1(1988) 5NWLR (Pt 93) 138 and Ayman Ent Ltd V Akuma Ind. Ltd (2003) 13NWLR (Pt836) 22.
use of a registered design intended to be used as a model or pattern to be multiplied by any industrial process and is not intended solely to obtain a technical or functional result. An Industrial Design right protects the form of appearance, style or design of an industrial object (eg spare parts, furniture or textiles) A Design is registerable if it is new and not contrary to public order or morality2 –
An Industrial Design is any combination of lines or colours or both and any three- dimensional form whether or not associated with colours if it is intended by the creators to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. It is noteworthy that the law of Industrial Property frowns at any similarity even if coincidental but the law on copyright only prohibits unauthorized copying.
“Intellectual Property” denotes the specific legal rights, which authors, inventors and other Intellectual Property holders may hold, and exercise, and not the intellectual work itself. Intellectual Property Laws are designed to protect different forms of subject matters, although in some cases there is a degree of overlap.
Patents, Trademarks, and Designs Rights are sometimes collectively known as Industrial Property, as they are typically created and used for industrial or commercial purposes.
History of Intellectual Property
The earliest use of the term ‘Intellectual Property’ appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et all. V. Brown 3 in which Justice Charles L. Woodbury wrote that:
2 Patents And Designs Act Cap P2 Laws of Federation of Nigeria, 2004 S.12, S. 13(1); Uzokwe V Dansy Ind Ltd (2002) FWLR (Pt 90) P. 1322
3 1 Woodb. & M53, 3 West. L.J 151, 7F. Cas.197, No. 3662, 2 Robb. Pat.Cas. 303, Merw. Pat.Inv 414
Only in this way can we protect intellectual property, the labours of the mind, productions and interest as much a man’s own… as the wheat he cultivates, or the flock he rears.
The statement that ‘discoveries are …property’ goes back earlier.
The French Copyright law4 stated
‘All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years’.
In Europe, French author A. Nion mentioned ‘propriete intellectualle’ in his Driots Civils des Auteurs, Artistes et Inventeurs, published in 1846.
The term’s widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organisation (WIPO), which actively tried to promote the term. Still, it was rarely used without scare quotes until about the time of the passage of the Bayh- Dole Act in 1980.- 5
The concepts origin can potentially be traced back further. Jewish Law includes several considerations whose effects are similar to those of modern Intellectual Property Laws, though the notion of intellectual creations as ‘property’ does not seem to exist. – 6. The Talmud contains the first known example of codifying a prohibition against the stealing of ideas, 7
However, the legal system of most of the Western world does not have provisions for Intellectual Property and the laws the term encompasses are justified on more constrained grounds. The term does not occur in the United States Copyright Statutes,
4 French Copyright Law 1791, Section 1
5 Mark A. Lemley: Property, Intellectual Property, and Free Riding available at http://papers.ssrn.com/sol3/papers.cfm
6 Jewish Law and Copyright available at http://www.nysun.com/article
7 Shulchan Aruch.: dot Communist Manifesto available at http://emoglen.law.columbia.edu/publications/dcm.hml
except in certain footnotes citing the title of certain Bills. The term used in the Statutes and in the Constitution is ‘exclusive rights.’
In conclusion, Intellectual Property accords recognition to ownership of property incorporeal and ownership as a constitutive term is used with reference to such things. Ownership was defined by Salmond
As the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right8.
This shows that ‘things’ has two meanings depending on whether it is used with respect to physical objects, corporeal things or certain rights, incorporeal things. Dias stated9–
That since ownership is only of things, it too is ‘corporeal’ or ‘incorporeal’ which is but an elliptical way of saying that ownership is of corporeal or of incorporeal things. This former is to physical objects whilst the latter is to grouping of claims, liberties etc. in so far as sufficient labour and judgement has been spent in its creation, the law accords the work as much propriety rights as it does other corporeal or tangible items such as house, land, goods etc. Hence ‘the sweat of a man’s brows and the exudation of a man’s brain are as such a man’s property as the breaches upon his backside10
Eminent jurists such as Sir William Blackstone and Manfield Lord have taken the view that intellectual creation are to be secured to their producers and their successors in interest to the same extent as other kinds of property and that the public has no more right or justification to tamper or impair the originators property in his mental creations that it has to deprive him of any other of his possessions. Hence, Intellectual Property is not the mere creature of statute but a natural and civil right entitled to
protection in law.
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