Background

The idea of copyright is indicative of two rights – the right of the copyright owner to enjoy the fruits of his labour on the one hand and right of the copyright user to benefit from the copyright work on the other hand. There has been a serious attempt at over-emphasizing the first right beyond its boundaries whilst suppressing the user’s right. Over the years and since the inception of copyright laws much of the discussions on copyright were centred on the protection of the right of the copyright owner, while little attention was paid to the public’s right in relation to copyright work. As it appeared, various regimes made attempts to highlight the importance of copyright protection over the rights of copyright users. It is only recently that the focus on authors and owners of copyright shifted to the need for the public to tap from creative works of the latter group without unnecessary excuse of monopoly on the part of the authors and owners, albeit within legal boundaries. One reason for this shift is the growth in technology and the quest for knowledge on the part of the public. Hence copyright now transcends the need to protect the private owner to the need for the transmission of information and knowledge; for what good is a good book if access to it is so restricted that a great deal of the community is unable to have access to the information therein. Authors and owners of copyright shifted to the need for the public to tap from creative works of the latter group without unnecessary excuse of monopoly on the part of the authors and owners, albeit within legal bounds. One reason for this shift is the growth in technology and the quest for knowledge on the part of the public. Hence copyright now transcends the need to protect the private owner to the need for the transmission of information and knowledge; for what good is a good book if access to it is so restricted that a great deal of the community is unable to have access to the information therein.  With the emergence of technology there was therefore need to expand copyright beyond the boundaries of protecting the copyright owners and to reach the public’s interest in their quest for knowledge hence the exceptions to copyright infringement. With these exceptions, the public is allowed more access to the copyrighted work provided they do so in accordance with certain principles.

Among the exceptions is the defence of fair dealing which is perhaps, the most significant exception5.This is so because it is the most often used defence as well as the most troublesome defence in copyright infringement since its scope is far reaching. Also, fair dealing seems to encompass most of the other exceptions and more as a result of its flexibility.

 

The Defence of Fair Dealing: Its Meaning

Fair dealing as a doctrine, unlike the concept of copyright, is not traceable to any statutory enactment rather it is a ‘judge-made’[1] concept. Like most judge-made concepts it is hard to define what fair dealing is and as Thesiger L.J Stated, “Definitions are proverbially dangerous.”[2]

Thus, Lord Denning stated in Hubbard v. Vosper[2] that it is impossible to define what “fair dealing” is. It must be a question of degree. Consequently, an attempt at explaining the fair dealing concept would be made hereunder for a clearer understanding.

Amidst the confusions as to what fair dealing is, we can draw out the underlying idea of fair dealing; one thing that is clear is that fair dealing has its roots from the notion of fairness and what is fair; hence the difficulty in defining it. Judges-made concepts most times are born out of notions of what is just and fair and sometimes, (or even in addition) a set of principles to guide them.

 

The idea that fair dealing is a policy initiative is traceable to the fact that it has come to be recognised statutorily. In Nigeria for instance, the fair dealing concept is entrenched under the Nigerian Copyright Act. [3] Similarly section 107 of the United State of Act has incorporated the fair dealing doctrine although it is referred to as ‘fair use’.

Furthermore, fair use in its most general sense is the copying of copyrighted material done for a limited and ‘transformative purpose, such as to comment upon, criticize or parody, such uses can be done without permission from the copyright owner. It is a defence against a claim of copyright infringement”.[4] It must be noted that not all copying for the purposes listed above would be fair dealing. It could amount to infringement where a substantial part of a work is copied to the detriment of the copyright owner, as stated earlier.

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

Despite the various attempts at defining the concept of fair dealing (or fair use), none is comprehensive enough to convey the complexity of this common law concept because it is better explained, described or perceived then than defined. As a matter of fact it has been described as “the most troublesome in the whole law of copyright.”[5] Similarly, the entrenchment of this doctrine in the copyright legislations of many countries has not really helped in solving the definitional problem. For instance, though the Nigerian Act incorporates the doctrine of fair dealing, no attempt was made at defining what fair dealing is. This lacuna has not helped in delimiting the scope of fair dealing as it applies in Nigeria. Again, this lacuna may have a positive consequence to the extent that any attempt at defining this highly relative term could be unduly restrictive. Thus, leaving it without a precise definition may be a positive way of giving the courts due allowance to apply the concept on a case-by-case basis as should be the case in view of the relative nature of the exception. Not to mention the danger of a definition of the concept not being sufficient to accommodate uses around new and rapidly developing technologies.

 

The Defence of Fair dealing: The Scope

What constitutes fair dealing in relation to the degree of use and specific acts developed by the court and various legislations on the subject?

It is important to note that fair dealing is a defence to a case for copyright infringement. To successfully raise this plea however is not an easy task. In Lawrence v. Dana[6] the court stated this when it held that: “It may be… one of the most difficult question which can well arise for judicial consideration.”

Despite the lack of precise legislative formulation of the yardsticks for determining what is fair as used in many countries including Nigeria, guiding principles have been laid down by the courts in assisting a defendant who wishes to rely on this defence. Fair dealing must be determined on a case by case basis and every case should be judged by its own merit. In Dodsley v. Kinnersley[7], 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 guiding principles in proving the defence of fair dealing are as follows:

  1. The amount of portion copied in relation to the whole work
  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

 

Fair dealing is a major defence to copyright infringement and has been incorporated into Nigerian Copyright Act and since no definition is provided for in the Act, the English fair dealing provisions and practise is very instructive and largely relied upon. More so, there is a dearth of Nigerian authorities on the issue of the scope and limits of the doctrine of fair dealing. Consequently, being a common law country, the doctrine as practiced by the English courts will be very instructive.[8]

Apart from persuasive English authorities and the like, a useful guide upon which the Nigerian courts could rely in determining whether dealing is fair is the Resolution 7 pronounced on October 12, 1996. This is not however the law, but a set of guiding principles which could help in determining what the scope of fair dealing should look like. It states:

That the control of copyright has exceptions in Schedule II of the Act. The test for determining what is fair dealing should be based on quality and not quantity; hence the degree varies from case to case. The following questions may be helpful: is there a conflict between exploitation of the original work and the alleged copy with regards to the sales and the like? Trade practices such as agreed limits suggested by associations on limitations of use and dealing can guide the court.

The second schedule to the Nigerian Copyright Act can guide the Nigerian courts as well.

Recently, the issue of whether or not an advertising agency can freely use copyrighted music in their adverts without authorisation, permission or license from the owner was discussed in a Copyright Society of Nigeria (COSON) select stakeholders’ forum. The question was whether the rule permitting advertising agencies to do so in accordance with the ‘unwritten nine seconds rule’ was applicable in Nigeria. In his article[9], Justine Ige was of the view that: “such rule, even if it exists and is applicable in some other jurisdictions, is absolutely and completely inapplicable in Nigeria.” Such nine seconds or ten seconds rule or five seconds rule or any rule at all according to him does not exist. In other words, fair dealing under Nigerian advertising using copyrighted works is not determined by the nine seconds or any seconds rule whereby an advertising agency may use a copyrighted for just a few seconds and rely on the defence of fair dealing. It is submitted that the ‘nine seconds rule’ may prove to be helpful in some but not all the cases in the face of the quality and quantity rule discussed above. Hence if this rule is not applicable in Nigeria, to what extent would it be fair for an advertising agency in Nigeria to use a copyrighted work? It would appear that the purpose and nature tests earlier discussed as applicable in various jurisdictions would come to play here; this also applies to areas where the Nigerian law is silent, vague or inadequate.

Dealing and Copyright Protection

A strong justification for the doctrine of fair dealing in Nigeria is traceable to and implied in the Constitution of the Federal Republic of Nigeria 1999 (as amended). It provides in Section 18 as follows:

  1. Government shall direct its policy towards ensuring that there are equal and adequate opportunities at all level.
  2. Government shall promote science and technology.
  3. Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide:
    • Free, compulsory and universal primary education
    • Free universal education; and
    • Free adult literacy programme.

These provisions howbeit important are rendered unenforceable by virtue of the fact that it is contained in the same Chapter II of the Constitution which is rendered non-justiciable pursuant to Section 6(6)(c). Some hope is also provided for under Section 39(1) of the same constitution which provides that every person shall be entitled to freedom of expression, including freedom to hold opinions and receive and impart ideas and information without interference. In order to achieve eradication of illiteracy and freedom of dissemination of information and expression of ideas and the like, the doctrine of fair dealing would be a viable tool for balancing the rights of copyright owners and copyright users so that none is over-emphasized to the detriment of the other.

 

In Nigeria the Copyright society of Nigeria (COSON) and the Nigerian Copyright Commission (NCC) tend towards issues of copyright protection against piracy and infringement and almost nothing is said about user’s right.

Such a rule or directive from such society as ASCAP or even COSON proves to be an exercise in ignorance of the intention behind the fair use doctrine. Howard stated that current legislations which may further hamper or eliminate fair use comes with it the dangers of limiting free speech curtailing satire and parody, and suppressing new art forms to an even greater degree than existed when the above battles took place. The discourse over copyright legislation is dominated by ‘economic harm’ that will come to the copyright owner if action is not taken while the harm to the public that will result from further limitation on fair use is usually treated as a minor side effect.

Proponents of the fair dealing doctrine like Prof. Nwauche[11] are of the opinion that over the last of decades the private interest in copyright has been dominated such that at first blush most people believe that copyright is only about the interests of the copyright owner. While submitting that open access movement is a latter reaction to the failure of public interest in copyright, he defined open access in line with the Budapest Open Access Initiation as:

An old tradition and a new technology have converged to make possible an unprecedented public good. The old tradition is the unwillingness of scientists and scholars to publish the fruit of their research in scholarly journals without payment, for the sake of inquiry and knowledge… removing access barriers to this literature will accelerate research, enrich education, share the learning of the rich with the poor and the poor with the rich… the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.

 

Open access is another channel for the advancement of fair dealing principles but unlike the public interest ideology which is ‘mandatory’ (imposed by some law or rules), open access is voluntary and yet still in the interest of the public. What is sought to be achieved here is basically free access to online scholarly works on the internet permitting any user “to read, download, copy, distribute, print, search, or link the full text of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself.”77

The open access concept is a welcome idea as it would help fulfil the purpose of fair dealing which is to promote knowledge. The importance of fair dealing to knowledge need not be over-emphasized; in relation to this, Fasanya stated that “books are a key to a vast array of educational as well as recreational experiences, they are a tool enhancing personal experience, for broadening inter-cultural understanding, for extension and dissemination of ideas and most importantly for giving man the insight to understand himself and his relation to family, group and the world.”[12]

The first short coming with the Nigerian Act is the fact that no definition was provided in the Act as to what constitutes fair dealing, in fact no attempt was made at referring to any viable tool in understanding it even if it is difficult to define it, at least the act ought to have given clear explanations to a term which is of grave importance to the copyright legislation; rather than a mere mention of it. In addition to this, no parameter was laid down as to how to determine whether a use is fair or not, unlike those contained under section 107 of the American counterpart of the Nigerian Act. These two areas are very important and should not have been left out; as it goes to show that the doctrine of fair dealing is not properly catered for and accommodated in the Act. It appears that it is treated as an alien concept under the Act rather than a part and parcel of the Nigerian Act.

The Nigeria Act does not consider fair dealing sufficiently as it is merely mentioned in the Second Schedule to the Act and no more is done to expatiate on its meaning, neither was there an attempt to clarify its applicability as is with most jurisdiction where fair dealing is treated with high esteem. Thus, the Act does not make it clear whether it is all the proliferation of exceptions contained in the said Second Schedule that would amount to fair dealing or not. There is a subtle confusion, even among writers on which of acts contained in the second schedule should constitute fair dealing.

Uvieghara, on his part strongly believes that, “it is important to note at the outset, that these exceptions (including fair dealing) are truly described as exceptions. In outlining fair dealing, he reproduced the four purposes contained in paragraph (a) which are; research, private use, criticism or review, reporting of current events, while leaving out discussions of paragraph (b)-(s) as mere exceptions.

Similarly, the above terms were neither define under the Act nor was their scope outlined. Thus, there is no clarification as to what ‘research’, ‘private use’, ‘criticism’ or ‘review’ and ‘reporting of current event’ amount to in the context of copyright law in Nigeria. A litigant who wishes to rely on this defence may be faced with a circumstance where an act which would otherwise amount to a use for the purpose of research (for instance) may be given a new judicial interpretation for the fact that no guide was provided under the Act. This leaves the fate of litigants in the hands of the court and since the present copyright legislation tilts more in favour of the copyright owner, the likelihood of the court holding fair dealing seems low.

The implication of restricting fair dealing under the act to those four purposes mentioned in paragraph (a) goes to show a lack of understanding of the whole concept of fair dealing. For example, Use in research for instance encompasses library exceptions and not easily divorced from it.

For some other writers, the concern is not whether the exception is one under fair dealing or mere exceptions; they go further than the copyright Act to treat like cases alike. This is obvious in the treatment of the library exceptions contained in paragraphs (q) (k) and (r), use for lawful broadcast (paragraphs (e) (1) and (n)), use in educational institutions (paragraphs (h) (k) (r)) and so on, are treated as fair dealing exceptions.

Lastly, the fair dealing provisions in the Nigerian Act should be simplified into an open-ended form like in the US, such that acts which would emerge with technological advancement and meet the parameters for determining fair dealing would automatically gain qualification as fair dealing. There is need to treat the fair dealing provisions in the Nigerian Act with greater seriousness as a result of its inherent propensity to aid the growth of the Nigerian economy.

 

Conclusion: Fair Dealing as a Tradeoff

It is often stated that fair dealing is derived from two basic precepts of copyright; that is rights given to the author or owner of the work on the understanding that it is not primarily for the benefit of the author, but primarily for the benefit of the public and that the owner is granted the exclusive right to the copyrighted work. Both ideas are deemed to be balanced in the concept of fair dealing.

The notion of copyright as a balance and balanceable system has a long lineage, the words of Lord Mansfield in Sayre v. Moore[13] 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 used81 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.

These balancing features are being applied in various jurisdictions in many ways. As was stated at the inception of this chapter, what is fair to one country may not be what is fair in another as a result of disparity in development; it is a question of degree and application. It has also been noted earlier that the common law doctrine of fair dealing has been incorporated into various copyright legislations. The question to be answered is whether the component of the fair dealing doctrine is the same in, say Nigeria and UK when on the one hand, the information needs in schools are far greater in the former than the later, and, on the other hand the resources to pay the access to such information are so much less.
 

REFERENCES

[1] Guobadia, D, “Fair Dealing and Copyright in Nigeria,” (1989) 2/4.

[2] Yewens v. Noakes, (1880) 6 Q.B.D 538.

[3] Under section 5(1)

[4] Q.B 2 (1972). 84.

[5] Laws of the Federation of Nigeria (2011) Cap C.28.

[6] Stanford University Libraries, http://wvvw.fairuse.stanford.edu/.,./9 a.htmlCopyright and fair use”, (March 14, 2017).

[7] Dellar v. Goldman Inc 🙁 2nd 1939) 104 F.2d.661, 662.

[8] E.R 1294/ 1298(1857), 69.

[9] Amb (1761), 403.

[10] Kusamotu, A, http://www.wcl.american.edu/Dii accessed “A Short Summary on The Balancing Features of Copyright Law for Documentary Film Makers in Nigeria”, (March 14, 2017).

[11] Justice Bola Ige, http://creativelegal.blopspot.com/2010/ll/advertising-in-nigeria-and-unwritten-html accessed Advertising in Nigeria and the Unwritten Nine Seconds Rule 2010, (March 15.2017).

[12] Prof Nwauche,E. S., www.soros.org/openacce8s/read.html accessed Open Access and Public Interest in Copyright “( an unpublished paper presented at a Conference on Electronic Publishing and Dissemination Putting African Journals Online: Opportunities Implications   and   Limit,”   held   at   Dakar,   Senegal   on   October   6/7,   2008),  (March 15, 2017).

[13] Fasanya, J. O, A Descriptive and Statistical Study of the Development of the Indigenous Book Industry in Nigeria, 1960 – 1972, (unpublished Ph.D dissertation, university of Pittsburgh, Pittsburgh, PA, 1975)

[14] Okiy, B.R., photocopying and Awareness of Copyright in Tertiary Institutions in Nigeria: (Interlending and Document supply 2005), 49.

[15] East 1 (1785), 361.