WHAT IS THE DEFENSE OF FAIR DEALING IN NIGERIA COPYRIGHT LAW?

Fair dealing in simple terms means allowing the use of a copyright work without permission from the author.

CHAMAN LAW FIRM

6/3/2022 3 min read

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DEFENSE OF FAIR DEALING IN NIGERIA COPYRIGHT

In Nigeria, fair dealing is not defined under the Nigerian Copyright Act, but is mentioned under the Second Schedule to the Act.

In Hubbard v. Vosper, Lord Denning enthused: “It is impossible to define what fair dealing. It must be a question of degree. You must consider first the number and extent of the quotations and extracts.” Fair dealing in simple terms means allowing the use of a copyright work without permission from the author. Fair dealing applies to literary, musical, artistic works and cinematography film works only with the exception of Sound recordings and broadcast. In determining fair dealing, the court would consider the value of the portion of the work taken to the work. Essentially, fair dealing must be determined on a case by case basis, as each case must be determined on its own merit.

In Dodsley v. Kinnersley, the court held that no certain line can be drawn to distinguish a fair abridgment, but every case must be tried on its own peculiar facts. This is very pivotal because the slightest circumstances in the different cases can make the most important distinction.

The exceptions contained in this schedule are quite extensive to the extent that it is unclear whether all the acts mentioned therein would in practice be treated as fair dealing acts or as mere exceptions. However, in practice much reliance is placed on the English position in determining whether a particular use is fair deal by the Nigerian courts. Similarly the fair dealing approach used in various other jurisdictions would come in handy before the Nigerian judges where there is a question as to whether a use is fair or not.

Fair dealing purports that the dealing with the work must be genuine and reasonable. It follows that fair dealing with an author’s work for the purpose of a review, parody or criticism does not constitute an infringement. The law specifically states in the Second Schedule to the Copyright Act, that acts done by way of fair dealing for the purposes of research, private use, criticism, or review of the reporting of current events are exempted from copyright control. In other words, where a work is used for the purpose of research, private use, criticism or review or reporting of current events, there is no question of infringement of the copyright in such a work provided the use is by way of fair dealing.

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It is Obstacle to the Effective Enforcement of Copyright Claims in Nigeria. It is important to note that fair dealing is a defense to a case for copyright infringement. To successfully raise this plea however is not an easy task.

The guiding principles in proving the defence of fair dealing are as follows:

1. The degree of use

2. The type of use involved

  • The use for research, commercial, criticism or illustration

  • Incidental and background uses

  • The use of earlier works by writers

3. Effect of the use on the original work

4. The amount of users labour involved

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 Cinematography 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.

Conclusion It is essential to give a full acknowledgement of the source of any material copied in this way wherever this is possible. Fair dealing can be a tricky area to navigate, which is why when you’re in doubt, it is advisable to seek permission before using another person’s work. Your lawyer may be able to advise you on usage and whether your use will pass as fair dealing based on case law from similar jurisdictions (what judges have decided in the past).

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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