It is common knowledge that Copyrights are exclusive rights of a creator or creators over their works and is primarily concerned with protecting work of human intellect. These works must in fact be expressed and not merely conceived in other to garner protection under copyright. These rights are also not without limitation, and creators are constantly ill at ease over the slightest unauthorized use of their work.
The Nigerian Copyright Act Cap C28 governs the copyright regime in Nigeria and as a contracting party to the Berne Convention of 1886, Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1994 and World Intellectual Property Organization (WIPO) Copyright Treaty of 1996, the exceptions provided under these treaties stand to compliment the Nigerian Copyright Act. Indeed, WIPO also recognizes the following rights of a creator as rights protected by copyright – Economic rights and Moral rights.
In the course of this article, the exceptions to the copyright protection provided both by the Nigerian Copyright Act and the treaties would be considered, noting the areas which form a limitation to the enforcement of these rights or a deviation on the set rights of a creator.
KEY LIMITATIONS OR EXCEPTIONS
- Fair Dealing – this constitute the reproduction of copies for private, personal, research, criticism, and non-commercial purposes, provided that if the use is public, it will be accompanied by an acknowledgement of the title of the work and its authorship. An example here includes using a quotation from the copyrighted work which for fair practice must include the name of the author, the source of the quotation and the extent of the quotation.
Fair dealing means that the dealing with the work must be genuine and reasonable, and is also a question of degree.
- Free Use – this constitutes the reproduction of singular copies for private, personal, research and non-commercial purposes. Additionally, use of works by way of illustration for teaching purposes or the use of a protected work for the purpose of news reporting can suffice under free use as an exception to copyright protection. It is also necessary to note that copyrighted works can be used without authorization from the owner having due consideration on whether the use is for a personal or commercial purpose, the nature of the work used, the amount of the work used in relation to the work as a whole and the likely effect of the potential commercial value of the work.
To iterate, where there will be a prejudice to the economic interest of the owner of a copyrighted work, this right to free use would be reconsidered.
- Use by way of parody, pastiche or caricature.
- Inclusion in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public.
- The reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public.
- The incidental inclusion of an artistic work in a film or broadcast.
In addition to the foregoing, the Copyright Act also recognizes other exceptions to the rights under copyright protection and these can be found in Paragraphs a to s of the Second Schedule to the Act.
Other arguable exceptions include:
- Transfer of ownership – where the entirety of rights under a protected work has been transferred by assignment or licensing, the use by the transferee would constitute a limitation of the rights of the creator since evidence of the licensing agreement or copyright assignment agreement precludes the creator from claiming that such use by the transferor is unauthorized.
- Work not Fixed in a tangible form – where the alleged work is not fixed in a tangible form, the creator cannot claim that his/her copyright has been infringed upon and the question of unauthorize use cannot arise.
- Non-Voluntary licenses – here although this allows the use of copyrighted works without the authorization of the owners of the rights, by operation of law, it requires that compensation be paid in respect of the use.
Comments
The Copyright Act and the Treaties have appeared to provide an exhaustive list which serve as exceptions to the copyright protection.
These exceptions are self-explanatory, therefore its ignorance regarding a protected work will not suffice as an excuse.
All unauthorized use of copyrighted works must if permitted, fall under the parameters provided herein, otherwise such use can easily constitute an infringement of a copyright, and the creator will be entitled to remedies available in law and equity.
Contributors:
Ms. Frances Onukwu
Ms. Urechi Ukefi
Disclaimer: Please note that the critical items highlighted above are solely for academic purposes and should not be taken as legal counsel. For further information, kindly send an email to u.ukefi@zuriel.com.ng, or f.onukwu@zuriel.com.ng or contact our office, Zuriel Law Practice, 14a Dasilva Street, Off Ayo Jagun Street, Lekki Phase 1, Lagos.
References
- Second Schedule, the Copyright Act, CAP C28, LFN 2004.
- F.O Babafemi – Intellectual Property – Law and Practice of Copyright, Trademarks, Patents and Industrial Designs in Nigeria, page 54.
- Lord Denning M.R., Hubbard v. Vosper (1972) 2 Q.B 84.
- World Intellectual Property Organisation E-learning
- Image from istock