The Concept Of Fair Dealing Under Nigerian Copyright Act 2022

 

THE CONCEPT OF FAIR DEALING 

Copyright is a branch of intellectual property that grants the holder some exclusive rights to control reproduction in relation to original, literary, dramatic, musical and artistic works, cinematograph film and sound recording.

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.

The object of copyright is to protect the author of the copyrighted work from any unlawful reproduction or exploitation of his or her work by others. 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. However, the copyright act provides a loophole for the actual usage of a copyright holder's work without permission or proper licensing and assignment. This is known as fair dealing.

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Like most judge-made concepts it is hard to define what fair dealing is and as Thesiger L.J Stated, "Definitions are proverbially dangerous.". Thus, Lord Denning stated in Hubbard v. Vosper, that it is impossible to define what "fair dealing" is. It must be a question of degree.

Consequently,  a fair dealing is a limitation on the rights of an owner of the copyrighted work without the permission of the author. Fair dealing is the legalized copying of the copyrighted work. Thus, a fair dealing with a literary, dramatic, musical or artistic work for the purpose of research or private study or criticism or review, whether of that work or any other work shall not constitute an infringement of copyright. 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. 

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Legal Provisions for Fair dealing

Fair dealing and fair use are used interchangeably. Fair use is obtainable under the United States Copyright Act. Conversely, Nigerian Copyright Act 2022 makes provision for “Fair dealing.”

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 and non-commercial use. 

The section provides thus: The rights conferred in respect of a work under sections 9-13 of this Act, do not include the right to control any of the acts specified in those sections by way of fair dealing for purposes such as —

(a) private use ;

(b) parody, satire, pastiche, or caricature ;

(c) non-commercial research and private study ;

(d) criticism, review or the reporting of current events, subject to the condition that, if the use is public, it shall, where practicable, be accompanied by an acknowledgment of the title of the work and its author except where the work is incidentally included in a broadcast...

The provision continues till paragraph (r). The section further makes provision for fair dealing of computer programs. Subsection (2) provides thus:

 Notwithstanding the provisions of section 9 of this Act, reproduction of a copy or the adaptation of a computer program is permitted, if the copy or adaptation is necessary for —

(a) use with a computer for the purpose for which the computer program was obtained ;

(b) archival purposes or as a replacement, in the event that the original copy of the computer program is lost, destroyed or rendered unusable ; and

(c) the activation of a machine that lawfully contains an authorised copy of the computer program, for purposes of maintenance or repair only of that machine, subject to the condition that—–

(i) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed, and

(ii) with respect to any computer program or part that is not necessary for that machine to be activated, such program or part is not accessed or used other than to make such new copy by virtue of the activation of the machine.

Fair dealing is a significant limitation on the exclusive right of the copyright owner, it has been interpreted by the courts on a number of occasions by judging the economic right of the copyright owner. In most cases, notable factors are considered essential for the court to determine whether or not an unauthorized usage of a copyrighted work falls within the ambit of fair dealing. 

These factors include:

• 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.

Noteworthy, however, the application of the aforementioned factors depends on the facts and circumstances of each case. Also, the line between “Fair dealing” and infringement is a thin one, as such, each case must be decided on its merit.

 In Dodsley v. Kinnersley, the court stated that: "No certain line can be drawn to distinguish a fair abridgment; but every case must depend on its own facts. 'This is an important point because the slightest circumstances therefore in these cases make the most important distinction.

The concept of fair dealing is also supported by other intellectual property treaties. Article 13 of the TRIPS (Trade related aspects of Intellectual property Rights) explicitly provides, Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the Right holder.

 

Article 9(2) of the Berne Convention also states that it shall be a matter for legislation or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the Right holder. Given that all countries that are members of the WTO are obliged to comply with the TRIPS articles and the Berne Convention on Copyright, this principle has been enshrined in substantial territorial copyright legislations.

Thus, the exception of fair dealing is enacted and extensively supported by various provisions of laws and international treaties which are further enacted in member countries, Nigeria inclusive.

Also, the notion of copyright as a balance and balanceable system has a long lineage, the words of Lord Mansfield in Sayre v. Moore is strongly recommended, thus fair dealing is regarded as a 'safety valve' between these two seemingly conflicting interest of copyright. In Nigeria, the balancing features of copyright is said to be under used though the features are quite extensive. It would appear that the general public, creators and courts are not quite conversant with these features; therefore, there is a gap between practise and law as it is. 

To this end, he submitted that the judiciary needs extensive education in the meaning and extent of the balancing features in order to understand the limits of copyright holders' rights.