FAIR USE AND FAIR DEALING; AN ANALYSIS OF COPYRIGHT LAW IN NIGERIA

ABSTRACT

 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.

CHAPTER ONE

INTRODUCTION

The 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.

By 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 human achievement[1]. 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.[2]

Finally, 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.

NATURE AND DEFINITION OF COPYRIGHT

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.

The 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[3].

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.

M.E OKANY[4] 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.[5]

The 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”.

Hence, 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 J opined;

“Copyright 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 another work”.

Furthermore, Kamil Idris[6] 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”

The Black’s law dictionary[7] 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 work.”

Finally, 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.

 By assigning 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.

It is 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.[8] 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.

Finally, 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 18^th 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 15^th 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 copyright statute.

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 England.

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.[9]

It should be noted that copyright was first introduced in Africa, Asia and the Pacific countries in the late 19^th 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 amended.[10]

COPYRIGHTABLE WORKS

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,[11] 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 provides;

“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 copyright protection.

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,[12] formulates the statutory basis for copyright protection. It lists out eligible works in its Sections 3-9 as;

Literary, Dramatic and Musical works

Artistic works

Sound Recordings and Films

Broadcast

Cable programs

Published editions

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;

(a)   Literary works

(b)   Musical works

(c)    Artistic works

(d)   Cinematograph films

(e)    Sound recording

(f)     Broadcasts

Each of these would be discussed briefly.

Literary works

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 scripts

Choreographic works

Computer program

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.

Musical works

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.

Artistic works

In Hensher v Restawhile,[13] 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 Ltd[14], a design of pictures, for an advertisement was held to be an artistic work. Similarly, in Vermett v Bancrest,[15] drawings of patch work to be used on a bedspread were held to be an artistic work

Cinematograph films

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 film[16].

Sound recording

Section 51 of the Nigerian Act also define sound recording as the first fixation of a sequence of sound capable of being perceived.[17] It does not include a soundtrack associated with a cinematograph film and is not synonymous with music.

Broadcast

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.[18] 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.