A Critique of the Concept of Fair Use and Fair Dealing Under the Copyright Laws in Nigeria
Chapter One
Purpose of Research
The purpose of this research work is to analyze the concept of Copyright, the conflicting interests of authors and the general public, especially as it relates to fair use for the advancement of knowledge to information and knowledge, as well as Copyright enforcement mechanism in the jurisdictions under consideration. It shall determine whether or not the enforcement mechanisms put in place to curb infringement of Copyright are best suited for the Creative Industries in the jurisdictions under consideration, especially in the face of the emergent technological advancement in the field of Copyright.
CHAPTER TWO
NATURE OF COPYRIGHT
Meaning of Copyright
Copyright has been described as property in which an action to restrain the infringement of a right or property will lie even if no damage can be shown.54 It is a specie of intellectual property, with its own unique character, a property right that at the same time exhibits features of a personal right.55 Justice Erle rightly argued that:56
It is true that property in the other of words is a mental abstraction, but so also are many other kinds of property; for instance, the property in a stream of water, which is not in any of the atoms of the water, but in the flow of the stream. The right to the stream is nonetheless a right of property, either because it generally belongs to the riparian proprietor, or the remedy for the violation of the right is by action in the case, instead of the detinue or trover. Copyright is an intangible; they are enjoyed as other property rights and can be transferred by assignment, by testamentary disposition or by operation of law as moveable property.
Copyright is therefore an automatic right that gives the creators of literary, dramatic, musical, artistic works, etc., the right to control the ways in which their materials may be used.57 This is because there is a belief that there is property in creative works.58 Thus, there is a basic correlation between work and wages. Hence, a person who has laboured or worked to produce copyrightable material ought to have a sole enjoyment of the benefits accruing from his work. Lord Atkinson concurred with this line of argument when he stated in Macmillan & Co. v Cooper59 that the moral basis on which the principle of the protective provisions of Copyright rests is the eight commandment „Thou shall not steal‟. Thus, the modern concept of Copyright law postulates that the primary purpose of Copyright is to promote public welfare by the advancement of knowledge with the specific intent of encouraging the production and distribution of new works for the public. It provides incentives for creators by granting them the exclusive rights to produce and distribute their works, and in so doing, reap the fruits of their labour. It was held in Gero v Seven-Up Company that the goal of Copyright protection is to encourage dissemination of ideas by protecting the embodiment of expression of an idea in a creative work and reserving the right in it to the creator of the work.60 It was also held in Oladipo Yemitan v Daily Times & Gbenga Odusanya that the function of Copyright law is to protect from annexation by other people, the fruit of another‟s work, labour, skill or taste.61
Historical Development of Copyright
By virtue of the historical link between Nigeria and her Colonial Master, the Great Britain, the entire modern Nigerian legal system inextricably has its origin and roots mainly in English Law. As such, the history of Copyright laws in Nigeria is traceable to the Copyright law of Great Britain. It must be stated categorically that prior to the arrival of Britain to Nigeria and indeed Africa as a whole, many African traditional societies recognized some forms of property rights in certain intellectual products as being to some extent, the exclusive preserve of the person, group of persons or tribe that invented them. Asein agreed with this fact when he stated thus:62
CHAPTER THREE
SCOPE OF COPYRIGHT PROTECTION
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Ownership of Copyright
It is necessary to identify with certainty the real creator or author of a work contemplated and protected by Copyright Laws. This will help to determine who is entitled to enjoy the various rights granted by Copyright law to owners of qualified works; or who can validly transfer or transmit such rights. The inquiry as to the identity of the real author will help solve the problem arising from the computation of the Copyright terms in certain works. For example, the term of Copyright in literary, artistic, except photographs, or musical work is defined under the Nigeria Copyright Act with reference to the life of the author of the work.236 It is therefore important that the author of the work be first known to help ascertain whether he is alive or dead. Moreover, moral rights are conferred on the author irrespective of the transfer or separate existence of the economic rights. For instance, the Nigerian Act provides that:237
Copyright conferred by sections 2 and 3 of this Act, shall vests initially in the author.
Notwithstanding subsection (6) of section 11 of this Act, where a work-
- is commissioned by a person who is not the author‟s employerunder a contract of service or apprenticeship; or
- not having been so commissioned, is made in the course of the author‟s employment, the Copyright shall belong in the firstinstance to the author, unless otherwise stipulated in writing under the contract.
CHAPTER FOUR
COPYRIGHTPROTECTION AND ACCESS TO INFORMATION
Exceptions to Copyright Control
In order to protect the interest of the public, the Copyright system tries to mitigate the absolute protection of the rights granted to creators of works by striking a balance between the interests of the public and those of Copyright owners for purposes of advancing knowledge and information. This balance is achieved through the introduction of the various limitations and exceptions to the statutory rights of Copyright owners. In Nigerian for example, the right conferred in respect of a work by Section 6 of the Nigerian Act does not include the right to control-577
CHAPTER FIVE
CONCLUSIONS AND RECOMMENDATIONS
Conclusions
Having examined the concept and origin of Copyright, the conflicting interests of Copyright owners and the general public; as well as the protection and enforcement of these interests, it is concluded that the Copyright Instruments operating in the jurisdictions considered in this work have not done enough to protect Copyright and interests attached thereto. These legal instruments also failed to achieve a holistic enforcement of Copyright by affording the defence of innocent infringement to infringers. The U.S. Act also makes it mandatory to use Copyright notices on works, failing which the defence of innocent infringement will avail the alleged infringer. Furthermore, the Copyright Acts of the jurisdictions considered, especially the English Act, contain too wide provisions in relation to the grant of compulsory licenses which render Copyright enforcement very porous. Similarly, the Copyright terms contained in these Acts are too long, thereby inhibiting access to work and in turn, creativity. On the other hand, the U.S. Act provides for limitation of time within which some Copyright infringement cases shall be brought, ie, three years in cases of alleged infringement by the
U.S. government; and five years in cases of criminal proceedings against infringers. It is also concluded that the use of technical measures to enforce Copyright protection is restrictive of public fair use as the Nigerian and English Acts do not admit of fair use in relation to protected works. Moreover, the Acts considered failed neither prescribed the type of anti piracy devices to be used to protect works, nor mention the circumvention devices that are outlawed by the Acts.
Again, the fact that Copyright is territorial in nature, quite unlike other international laws such as international criminal law, renders it impossible to enforce Copyright protection especially as it relates to digital media which are capable of being downloaded and reproduced in any part of the world without the authority and knowledge of the right owner. This is worsened by the fact that there are no National, Regional and International Copyright Courts established with the powers to entertain Copyright matters involving nationals of member States to the relevant Copyright Treaties and Conventions quite unlike the International Criminal Court. Worst still, there are no procedural steps provided for by the Nigerian, English and the U.S. Acts in relation to civil or criminal proceedings in cases of alleged Copyright infringement, rather, recourse is had on the Civil and Criminal Codes operating in these jurisdictions. Again, the Copyright laws of these jurisdictions do not make adequate provisions that guard against online piracy which is the most dangerous form of Copyright infringement of the 21st century.
On the other hand, there are no adequate enforcement mechanisms and institutions set up by these Acts to combat Copyright infringement as effective as the Police and other Secret Services in relation to crime. It is also true that the concept of fair use/fair dealings as broad as it exists in the Copyright Acts considered herein militates against the rights of owners of Copyright works in the sense that such wide concepts encroach on the legitimate rights of Copyright owners where there are no checks and balances regarding the use of protected works. For example, while the Nigerian Act allows the fair use of certain scarce works upon the condition that they should be destroyed within a specific timeframe after such use, the Act does not mention or establish any Body/Institution that will monitor the aforementioned destruction. What this means is that while such works may be legally obtained in the name of fair use, its use will fall outside the scope of fair use if such works are not destroyed within the specified period. This may generate serious Copyright violations if such works are used thereafter without the consent and authority of the Copyright owner.
Recommendations
There are a good number of steps that could be taken to totally eliminate Copyright infringement in the jurisdictions considered. A strict adherence to the recommendations discussed below will help a lot in achieving a holistic enforcement of Copyright by striking a balance between the conflicting interests of authors and those of the general public.
(a) Amendment of the Acts
It is recommended that the Copyrights Acts of the jurisdictions considered be amended to fully implement the provisions of World Intellectual Property Organization Obligations and to create strong enforcement mechanisms as required by the World Trade Organization. Tough anti-piracy provisions should also be introduced into the Act. Most importantly, the Amended Acts should incorporate hasher punishments for Copyright infringement. The Amended Acts should repeal the provisions on limitation of action and the defence of innocent infringement. The wide range of fair use provisions should also be curtailed to only the excusable acts that can be overseen and managed by Copyright Enforcement Agencies to be established by the Acts. Again, model provisions on compulsory licenses similar to those contained by the Nigerian Act should be introduced into the other Acts considered in this research work.
(b) Establishment of Copyright Enforcement Units as a Department in the Law Enforcement Agencies
There is need to introduce a Copyright Enforcement Units as a department in each of the Law Enforcement Agencies in Nigeria such as the Police, International Police, Civil Defence Corps, the Customs Service, State Security Services, the Army, Navy, Air Force, etc. This will ensure that all hands are on deck in combating Copyright violation.
(c) Establishment of Nigerian Copyright Commission in the Local Government Areas
Nigeria is a very large country and the most populous nation in Africa. It is believed that Copyright violators are in all the nukes and crannies of Nigeria in their numbers. It is therefore necessary to establish branch offices of the Nigerian Copyrights Commission in the Headquarters of all the Local Governments in Nigeria.
(d) Anti-Piracy Legislative Measures
No matter how good a law is, without effective enforcement mechanism, it will be a toothless bulldog. Thus, because the enforcement of Copyright remains the basis of the protection for the various digital technologies, adequate administrative measures should be adopted by the Nigerian Copyrights Commission for the protection of Copyright in digital works. The Federal Government of Nigeria should work with various International Organizations, Market Authorities, Trade Unions, etc, to ensure that any infringing copies of pirated works and other adverse digital innovations are confiscated and all contributors to the act, severely punished. Legislative measures should be adopted to take care of the increasingly new species of digital innovations that aid Copyright violations. In doing so, the legislators should widely consult experts in the fields of Information Technology, Copyright and Computer Technology, in order to acquire the technical knowledge that would expose the intricacies involved in the circumvention of digital technologies that protect works. More regulatory bodies that will be charged with the responsibilities of ensuring the enforcement of the laws so made should be established. The Nigerian Government should enact legislation that every television sold in Nigeria must contain V-Chip which is now used to monitor broadcasts in the United States. This kind of legislation should be made for technological protection of copyrightable works. It is further recommended that in the fields of digital broadcast by cable satellite transmission, Copyright owners should adopt some tough technological measures to check unauthorized use of their transmission, for example, the use of digital signature and key encryption, such that only legitimate receivers would be given the activation code to decipher the encrypted work.
(e) Social Measures
Adequate Copyright awareness should be created to carry the Nigerian populace along. The social measures to be adopted include the enlightenment and awareness campaigns to the grass root level. This is achievable through commercial ringlets and advertisement in televisions and radios in such a manner that even a layman in the street would be able to understand and appreciate the meaning and purport of Copyright Law, the dangers associated with piracy, as well as the risk of patronizing infringers. The Nigeria Copyright Commission should establish a social helpline that would enable an ordinary Nigerian to report seemingly obvious cases of Copyright infringement to it. Monetary reward should be paid to such whistleblowers if their reports prove to be true at the end of the day. There should also be an improved public education of the concept, nature and protection of Copyright to the citizenry, no matter their levels of education. This should be by way of seminars, workshops, conferences, radio and television broadcasts, and by the introduction of Copyright as a course in the curricula of Primary, Secondary and Tertiary Institutions.
(f) Judicial Measures
Owing to the intricacies associated with Copyright cases, the Federal Government should set up Copyright Court in the country. This Court shall be saddled with the responsibilities of discharging expeditiously cases relating to Copyright in the manner adopted by the Nation Industrial Courts in cases involving labour law. By doing so, only judicial officers who are versed in the field of Intellectual Property, especially Copyright should be appointed judges of the Copyright Courts. Again, the technicalities involved in Copyright cases which tend to militate against expeditious disposition of pending Copyright suits should be abandone pursuant to the Copyright Enforcement Rules to be made for this purpose. It is also recommended that, Regional and International Copyright Courts should be established to tackle Copyright infringement at the international plane.
BIBLIOGRAPHY
BOOKS
- Adebambo, A, Nigerian Copyright System, Principles and Perspectives: Selected Papers (Abuja: Odade Publishers, 2008).
- Andrew, E, & Sullivian, D, World of Computing, (Boston, Houghton Miflin Co., 1998).
- Asein, J, Nigerian Copyright Law & Practice (2nd edn, Abuja: Books and Gravel Ltd. 2012).
- Babafemi, F, Intellectual Property Law And Practice of Copyright, Trade Marks, Patents and Industrial Designs in Nigeria (1st edn, Ibadan: Justinian Books Limited, 2006).
- Bender, „An Introduction to Computer Technology‟ in Bigelow ed, Computer and Law, Chicago, American Bar Association, 1980).
- Bouvier, J, Bouvier Law Dictionary, ( 3rd edn. London, Sweet & Maxwell, 1956).
- Bryn G, Black’s Law Dictionary (9th edn, United States of America: Thomas Reuters, 2009).
- Choate, Cases and Materials on Patent Law including Trade Secrets-Copyright- Trademarks, (Minnesota, West Publishing Co. St. Paul, 1987).
