Copyrights are exclusive rights granted to the
author or creator of an original work, including the right to copy, distribute
and adapt the work. Copyright does not protect ideas, only their expression or
fixation. Copyright owners have the exclusive statutory right to exercise
control over copying and other exploitation of the works for a specific period
of time. However despite such protection in place there are certain instances
wherein uses which are covered under the limitations and exceptions to copyright
such as fair use and fair dealing, do not require permission from the copyright
owner. This project seeks to examine the concept of fair dealing which is a
product of the English law as a possible defence against an action for
infringement of an exclusive right of copyright and instances in which it would
be applicable and also see how it has operated in the American legal system
albeit known as fair use all in a bid to ensure that the use of copyrighted
work will not be seen as an infringement if it does not in any way hurt the
pecuniary interests of the owner of the work. This would be done with the
Nigerian copyrights act serving as a guide and also contain relevant case laws
to throw more light on these vital issues, Nigerian, English and American case
laws inclusive. Finally this project work shall conclude by making viable
recommendations as to how these aspects of copyright laws should be expanded to
cope with the current issues associated with copyright infringement with
regards to fair use and fair dealing.
idea of property and proprietary right first applied solely to tangible
property and as such when we speak of ownership of property, the first idea
that comes to mind is the things we can see, touch or handle. Including items
such as cars, books, landed properties to say the very least. Today however
this has changed. Property rights have extended to reach intangible things or
item’s such as shares, and even copyright, hence we speak of choses in action.
reason of this shift in things that can be owned, creative ideas may now be
validly owned, creative ideas may now be validly owned if such ideas are
reduced into an expressed form and they meet other relevant criteria as well.
It is that branch of law that gives protection to the first manifestation of
The law of copyright entails the protection of the right of authors in the
areas of literary works, musical works, artistic works, cinematograph films,
sound recordings as well as broadcasts.
the nature, history and justifications of copyright protection will be dealt in
this chapter as well as the scope of copyrightable works and the issue of
ownership and proprietorship. The aim is to unravel the concept while
distinguishing from related concepts, and to create a foundation upon which
further discussion would be made in subsequent chapters.
AND DEFINITION OF COPYRIGHT
as a concept has become accepted in various societies, whether “developing” or
“developed”. It is premised on the obvious fact that every country all over the
world, no matter the status, has a group of creative people responsible for
composing music, writing books, dance, paint, etc, or engages in some form of
creative work of art.
copyright system has been developed over the years as a means of protecting and
encouraging such creative persons and their works. Originally, it was reserved
for the field of literature and arts.
But to keep up with the current pace and ever changing societal demands,
it was extended to other areas of mans endeavours. Hence, new works such as computer programs, software’s,
etc are now within the ambit of copyright.
is the lawful right of an author, artist, composer or other creator to control
the use of his or her work by others. Generally speaking, a copyrighted work
may not be duplicated, disseminated or appropriated by others without the
creator’s permission. The public display or performance of copyrighted works is
similarly restricted. It can also be said to be a legal right created by the
law of a country which grants the creator of an original work, exclusive rights
to its use and distribution, usually for a limited time, with the intention of
enabling the creator to receive compensation for their intellectual efforts.
defines copyright as “the monopoly of right conferred by law on a person or
institution to do or restrain others from doing certain acts with respect to
the author’s original literary, musical or artistic works”. Despite the fact
that copyright does not stifle creativity as it does not prevent others, from
drawing inspiration from original works in a particular area so as to produce a
more erudite variation or exposition on the same subject, it still ensures that
originality is still a key feature with emphasis placed on independent work and
not being copied from other works.
nature and extent of the rights of the author and what constitutes originality
in the work protected by copyright is as stated in the English case of University
of London v University Tutorial Press,
a case decided not long after the coming into force of the codified Copyright
Act 1911, the case established the striking difference between what constitutes
a “literary work” for the purposes of copyright and, “literature.” In a
copyright claim, the test of originality which had to be passed was set out by
Peterson J, saying; “The word original does not in this connection mean that
the work must be the expression of original or inventive thought. Copyright
Acts are not concerned with the originality of ideas, but with the expression
of thought in print or writing. But the Act does not require that the
expression must be in an original or novel form, but that the work must not be
copied from another work- that it should originate from the author”.
ideas no matter how brilliant, if not put in perceivable form, would not be
brought into the realm of copyrights as ideas, thoughts in a man’s brain are
not protected but once reduced into material form are not capable of being
protected. In the case of British North Lock Limited v Text Blackburn, Megarry
is not concerned with ideas, but with their expression and it is that expression
that originality is requisite. That expression need not be novel in form or
original but must have originated from the author and is not copied from
defined copyright as “the area of law that provides protection to “original
works of authorship” including paintings, sculpture, music, novels, poems,
plays, architecture, dance , instruction manuals, technical documentation, and
software, among other items. Legal protection flows from the fact that an
author independently creates the work and his or her expression of an idea is
original, rather than copied from another person. Copyright extends only to the
expression of ideas and concepts, and not to the ideas or concepts themselves”
Black’s law dictionary
gives an exhaustive definition of copyright as;
“The right to copy;
specifically, a property right in an original work of authorship(including
literary, musical, dramatic, motion pictures and other audio-visual works; and
sound recording) fixed in any tangible medium of expression, giving the holder
the exclusive right to reproduce, adapt, distribute, perform and display the
a distinctive feature of copyright from other forms of intellectual property
(like patents, industrial designs and trademarks) is the absence of a
centralized system of registration of copyright. There is no Registrar of
Copyright and there is no Registry in which copyright “works” is registered.
Copyright laws allow products of creative human activities,
such as literary and artistic production, to be preferentially exploited and
thus provided with incentives. Copyright laws lays out a framework of rules
around how that work can be used. It sets out the rights of the owner, as well
as the responsibilities of other people who want to use the work. It provides
an avenue for the author to control his work.
exclusive rights to copyright holders, the laws ensure that only the
originators and those who receive their permission can copy, perform or change
the work. It also ensures that the holders of the copyright can earn income
from their work by selling, renting or licensing their own works or give
permission to others and receive royalties in return.
essential at this point to point out that the term plagiarism is totally
different from copyright despite the fact that many people tend to blend the issues, but
these are very separate concepts. Plagiarism is an ethical concept based on
community standards. In academic contexts it is perceived as a serious
violation of academic honesty. Plagiarism can be intentional and unintentional.
It is intentional when a writer seeks to deceive the audience by claiming work
as one’s own production that was not created but stolen or “borrowed” from
another, with little or no attribution of that fact, or “created” citations
that are unrelated to the quotations.
On the other hand, unintentional
plagiarism can result from failing to cite or cite adequately a source or from
a misuse of the summary or paraphrase of a cited source. Copyright is a legal concept to protect “original works of
authorship fixed in a tangible medium of expression ”in order to encourage the
production of those works and at the same time limiting those rights to allow
the free flow of ideas in a way that benefits society. It is determined by
legislative law and court rulings. It began as common law (customs of a society
recognized and enforced by legal judgments and decrees) and has evolved over
time into black letter law (general and accepted legal principles, enforced by
the court and passed by legislatures).
Note also that copyright doesn’t cover
every use of these items. There are societal benefits to limiting copyright,
especially in academic and scholarly contexts. The main exemptions to copyright
are fair use or fair dealing and the limits that allow items over time to be
determined to be in the public domain.
copyright laws define what constitutes infringement and specifies the
applicable penalties. The law provides for a notification procedure for
suspected copyright infringement and makes it illegal to circumvent copyright
measures taken by copyright holders. In Nigeria, copyright is protected by the
Copyright Act as contained in Chapter C28 Laws of the Federation of Nigeria
2004 and it is administered by the Nigerian Copyright Commission [NCC]. The
Nigerian Copyright Act provides protection for literary, musical and artistic
works, cinematography, sound recordings and broadcasting.
BACKGROUND AND HISTORY OF COPYRIGHT
The first copyright Act of parliament dates as back as the
18th century to the Statute of Anne in 1709. The concept of
protecting a work from being copied and sold by other people though is even
older. This can be traced back to the invention of the printing press by
Johannes Gutenberg in the 15th century. It was at this point in
history that greater emphasis was placed on the notion of protecting your work.
Through the Statute of Anne, writers could choose who to
allow copy their work, for a period of 14 years. They could decide what to
charge for the copies and choose their own printers. As well as providing a
greater level of control, copyright law had another effect, by having a set of
legal rules controlled by parliament, authors and other creative people could
get rewarded for time spent. The Statute of Anne which full title “An Act for
the Encouragement of Learning, by vesting the Copies of Printed Books in the
Authors or purchasers of such Copies, during the Times mentioned” was the first
In the opinion of the court in the case of Donaldson v
Beckett, the statute extinguished the common law copyright in published works
leaving the common law copyright in unpublished works unaffected. Further
alterations were made to the statute subsequently. An act repealing all
previous statute on the subject of literary and artistic works (with the
exception of the musical copyright Act of 1902 and the Fine Art Copyright Act
of 1862) came into the force on July 1, 1912 known as the English Copyright Act
of 1911. It is the provisions of this act that is continuously reviewed in
However, in the U.S, the Statute of Anne did not apply to
the American colonies directly. The first Federal Copyright Statute of 1790
granted copyright for a term of 14 years from the time of recording the title
thereof” with a right to renew for another 14 years if the author is still
alive after the first term. The Act covered not only books, but also maps and
charts. Despite this, the US Copyright Act was copied verbatim from the English
Statute of Anne.
It should be noted that copyright was first introduced in
Africa, Asia and the Pacific countries in the late 19th century by
European colonial powers especially Britain and France. In Nigeria for
instance, there was no law providing for such protection before 1970, but the
English Copyright Act of 1911 was applied to Nigeria by order of council made
under Section 25 of the Act. In 1970, Nigeria introduced her first indigenous
copyright statute and in 1988, the Copyright Decree (No 47) was promulgated to
amend the 1970 decree and in a way correct some already existing anomalies.
Presently n Nigeria, copyright is governed by the Copyright Act of 1988 as
This refers to works capable and eligible for copyright
protection under Copyright laws. Such works originally started out as works in
the field of literature, but has overtime with technological improvements
included creative works as well.
Under the Berne convention of 1866,
an international pact of which Nigeria is a party, works eligible for copyright
protection are “literary and artistic works”. Article 2(1) of the convention
“The expression literary and artistic works shall include
every production in literary, scientific and artistic domain, whatever may be
the mode or form of expression, such as books, pamphlets and other
writing/lectures, addresses, sermons and other works of the same nature;
dramatic or dramatic-musical works; choreographic works to which are
assimilated works expressed by a process analogous to cinematography, works of
drawings, paintings, architecture, sculpture, engravings and lithography;
photographic works to which are assimilated works expressed by a process analogous to photography, works
of applied art; illustrations, maps, plans, sketch and 3d works relative to
geography, topography, architecture or science.”
While the UK focused on the right to copy or “copy-right”,
other countries like Germany or France took a more philosophical approach.
There are, however, unifying standards such as those set out in the Berne
convention of 1886 which means that copyright works are protected in law
regardless of whether they leave the country they originated in. This
convention was introduced to provide mutual recognition of copyright between
nation states, and to promote the development of international standards for
An attempt to delimit the scope of copyrightable works would
result in difficulty, the reason being that various jurisdictions regard some
work as copyrightable while others do not, this is hinged on the fact that
there exists a disparity in the growth and development of different legal
systems. It then becomes difficult to determine what category of works would
fall under a certain heading. For instance, the term “literary works” which
appears in virtually every copyright legislation is unclear in scope, though it
has been defined as covering “any work which is expressed in print or writing,
irrespective of the question whether the quality of style is high”.
In the UK, the Copyright, Designs and Patent Act,
formulates the statutory basis for copyright protection. It lists out eligible
works in its Sections 3-9 as;
Literary, Dramatic and Musical works
Sound Recordings and Films
The idea is that every form of creative work would fall
under any of the above categories. Similarly in Nigeria, the Nigeria Copyright
Act under Section 1(a)-(f) sets out six broad areas of works eligible for
copyright protection. These are;
Each of these would be discussed briefly.
These refer to any work value and the emphasis is not on
quantity but quality. It has been established that the work must be educative,
informative as well as entertaining. Under the Nigerian Copyright Act, Section
51 sets out works that classify as literary works, they are;
Novels, stories and political works
Plays, stage directories, film scenarios and broadcasting
Textbooks, treatises, histories, biography and anthologies
Letters, reports and memorandum
Lectures, addresses, sermons
Law reports, excluding court decisions
Written tables and compilations
This list, though not quite elaborate does not reflect all
works that potentially can be brought under this heading.
The Nigerian Copyright Act in Section 51(1) defines musical
works as any musical composition irrespective of musical quality and includes
works composed of musical accompaniment. It is synonymous with music; it is a
composition with its entire accompaniment.
In Hensher v Restawhile,
Lord Reid emphasized practical utility and value as the litmus test for
determining artistic works. It simply means that it must be a work for value.
Like literary works, Section 51 of the Nigerian Copyright Act stipulates
various works under this head. They are;
Paintings, drawings, etching, lithographs, woodcuts,
engravings and prints
Maps, plans and diagrams
Works of sculpture
Photographs not comprised in a cinematograph film
Works of architecture in the form of building models
Works of artistic craftsmanship
Hence, in the case of Joseph Ikhuoria v Campaign Services
a design of pictures, for an advertisement was held to be an artistic work.
Similarly, in Vermett v Bancrest,
drawings of patch work to be used on a bedspread were held to be an artistic
These are deemed to appeal, to the sense of sight. Things
classified under this are the first fixation of a sequence of visual images
capable of being shown as a moving picture and of being subject to reproduction
and includes the recording of a soundtrack associated with the cinematograph
Section 51 of the Nigerian Act also define sound recording
as the first fixation of a sequence of sound capable of being perceived.
It does not include a soundtrack associated with a cinematograph film and is
not synonymous with music.
Broadcast is defined as sound or television broadcast by
wireless telegraphing or wire or both or by satellite or cable program and
includes re-broadcast by virtue of Section 51 of the Nigerian Act. Broadcasting
right is a combination of sound recording and cinematograph film.
It should be noted that apart from the six categories
mentioned above, the Nigerian Act also protects such other works that exist in
the realm of neighboring rights.
They include the right of
performers and protection of works of folklore; these rights cover the rights
of performing artists against unauthorized performance of their works or
reproduction of works already performed by them in any material form and also
rights in works of folklore belonging to the community and its creator unknown.