Until Nigerian law does a better job of protecting copyrights, creatives will keep losing out

What fair dealing means

Although there is no one definition of “fair dealing” (otherwise called Fair Use in other jurisdictions), it can be regarded as an unauthorized use of copyrighted material, in a fair manner, to allow for an exemption from liability in copyright infringement.

The Nigerian position

A reference in the Nigerian Copyright Act 2004 (“the Act”) to fair dealing can be seen in Article A of the Second Schedule of the Act, which provides that:

“The right conferred in respect of a work by section 5 of this Act does not include the right to control(a) the doing of any of the acts mentioned in the said section 5 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast;…” (Underlining mine).

There is a dearth of Nigerian judicial authorities as to what fair dealing entails, however, worthy of note is the 1997 Federal High Court case of Peter Obe v. Grapevine Communications Ltd (5 IPLR 372 (2003-2007). Here, the Defendants (Grapevine Communications Ltd) published one of the pictures from the Plaintiff’s (Peter Obe) photo documentary of the Nigerian Civil War. In raising the defence of fair dealing, the Defendant argued that the photographs were used “to depict a story of a historical matter of importance and of high public interest” and should be exempted from exclusive copyright control. The Defendant informed the Court that sufficient acknowledgement was included in describing the work as: “Biafra photos, courtesy Daily Times of Nigeria.” In its Judgment, the Court only considered the text of the acknowledgement and held that the defence of fair dealing would have availed the Defendant if it was shown that they accompanied the photograph with an acknowledgement of the title of the work and it’s the true author i.e. the Plaintiff. There were no further expositions on the determining factors for fair dealing. This brings to light the gap in the Nigerian Copyright Act.

A glaring gap

In comparison, the US Copyright Act does not only codify fair use but also stipulates the guidelines in the determination of what amounts to “fair use”. Section 107 of the US Copyright Act provides that the following four primary factors will be considered in the determination of whether a use is fair:

• the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;
• the nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work.

A clear case of the application of “fair use” is the American case of Northland Family Planning Clinic v Center for Bio-Ethical Reform 868 F. Supp. 2d 962 (C.D. Cal. 2012), where Northland (the Claimant) created a video titled “Every Day, Good Women Choose Abortion,” with the objective of de-stigmatizing abortion. The defendants, on the other hand, created several videos including several verbatim segments of Northland’s video. Northland sued, claiming copyright infringement. The Defendants, however, raised the defence of fair use. The United States District Court in determining whether the use of Northland’s Clips in the Defendant’s video constituted “fair use” in light of S. 107 of the US Copyright Act held as follows:

“While the accused works have some commercial use, their transformative character [as criticism of the original] substantially eclipses that consideration. Thus, the first factor tips in favor of Defendants. Because the Northland Video is, at least in part, a creative work, the second factor militates in favor of Northland. The third factor weighs in favor of Defendants because they did not use an excessive amount of the Northland Video to create their parody, in light of the Fisher factors [which state that parodies and similar critical works are generally entitled to use a substantial portion of the original in order to comment on it. Finally, the fourth factor also weighs in favor of the Defendants because the accused Videos did not create a cognizable market injury to the Northland Video…the Court focuses on the extent to which the Defendants’ work usurps the potential market for the original or its derivatives…Courts must distinguish between “biting criticism that merely suppresses demand and copyright infringement, which usurps it.” … Northland asserts that the accused Videos have diminished the value of the Northland Video and have terminated all conversations with potential licensees. While this is no phantom injury, it is not recognized by the Copyright Act. …we do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theatre review, kills the demand for the original, it does not produce a harm cognizable under the Copyright Act.”

In view of the explicit and detailed judgment in Northland’s case, as highlighted above, there is an obvious lacuna, or gap, in what constitutes “fair dealing” under Nigerian law.

A better way

From the above, it is clear that the absence of a clear definition of what amounts to fair dealing and a formula to determine same under the Nigerian Copyright Act is a gap that needs to be remedied. The extensive allowance provided under the Act is akin to a horse left to run wild without a rider.

In fact, going by the current provisions of the Act and the referred case of Peter Obe v. Grapevine Communications Ltd, as long as the requirement of acknowledgement is satisfied, there may be a positive application of the fair dealing defence. This appears to defeat the purpose of copyright protection and intellectual property rights generally, as the copyright owner actually loses exclusive control to his material and any benefit that would otherwise have accrued if such “unauthorised” use was not permissible under the Act.

There is, therefore, an urgent need for a review of the Act, to spell out in detail the components of “fair dealing”. Fair Dealing as a defence should be closely defined and narrowed down to ensure that the rights of a copyright owner- the benefits of the exclusive right to intellectual property are not disregarded.

Olayomi Olanrewaju is an Associate with Kenna Partners, one of Nigeria’s foremost commercial law firms.