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In the last three weeks, we have examined the limits of copyright and established that while the owner of copyright has a large basket of exclusive rights, his rights are not limitless. We have seen that in many cases, copyright does not last forever because of the terms of copyright in different works. There are also 19 exceptions from copyright control created by the second schedule to the Nigerian Copyright Act which also limit the exclusive rights of the owner of copyright.
Of the 19 exceptions, “fair dealing” appears to be one of the most misunderstood and most misused. The exception of ‘fair dealing’ is not a carte blanch exception. It is limited to use of the work in four clearly stated situations: research, private use, criticism and the review or reporting of current events. The exception of ‘fair dealing’ therefore will not protect a user against liability outside of the four mentioned situations. For instance, it is doubtful if the exception of fair dealing will protect a social club at the University of Lagos which holds a dance party at which gate fees are charged, unlicensed music is performed and unlicensed poetry is recited.
What exactly is fair dealing? The world famous jurist, Lord Denning in the English case of Hubbard v. Vosper, tried to answer this question using a literary work context. He said:
“It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportion. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression the tribunal of fact must decide”
Fair dealing, which may be a successor to the earlier term, ‘fair use’ appears to be targeted at the promotion of research and learning, for the benefit of the entire society and not for private gain. This exception applies to all the six categories of works protected by copyright: literary works, musical works, artistic works, cinematograph films, sound recordings and broadcasts.
It must be repeated that any public use of a protected work, whether fair or unfair, which is not accompanied by an acknowledgment of the title of the work and its authorship is an infringement of the moral rights of the author and such infringement is actionable.
Apart from “fair dealing”, where a protected work is used by way of parody, pastiche or caricature, it may not constitute an infringement of copyright. In other words, members of Nigeria’s current sassy generation of stand-up comedians like Ali Baba, Basketmouth, Gbenga Adeyinka, Klint Da Drunk, Gordons, Lepacious Bose, Koffi Da Guru, Okey Bakassi, Mandi Uzonicha, I Go Die, A.Y., Julius Agwu, etc., who use bits and pieces of protected songs in their rib cracking jokes may not have too much to worry about. Their hilarious acts may indeed qualify as exceptions from copyright control.
It is also not an infringement of copyright if an artistic work situated in a place where it can be viewed by the public, is included in a cinematograph film or broadcast.
For instance, if Mr. Prolific, the recently departed Chico Ejiro, while shooting a movie on the Lagos Marina, included Ben Enwonwu’s great sculptural work “Sango” situated in front of the NEPA building in his movie, would he have infringed copyright? “Sango” is situated in a place where the public can view it and if the public is already free to view the work, no harm is really done by including it in a movie.
Similarly, it is not an infringement to reproduce or distribute copies of any artistic work permanently situated in a place where it can be viewed by the public.
My favorite photographer is a guy based in Ekiti, known as Femi Adagunodo. Femi is an incredibly gifted sharpshooter with eagle eyes.. What if Femi took a photograph of Ben Enwonwu’s “Sango” and decided to produce post cards with the photograph for distribution or sale, it is doubtful if any action for infringement of copyright can be sustained against Femi. ”Sango” is already available to the public to enjoy as much as the public pleases. However, the photograph by Femi Adagunodo will be protected by copyright because it is a creative work on its own. Any unauthorized reproduction of the postcard should therefore be an infringement of the copyright of Femi Adagunodo..
If an artistic work is incidentally included in a film or broadcast, it will not constitute an infringement. Whether the inclusion of an artistic work in a film or broadcast is incidental or fundamental, of course, would be a question of fact.
There are also exceptions to copyright control with respect to educational broadcasts, use of works in educational institutions, sound recordings of previously recorded works, reading or recitation of an extract of a published literary work, non-commercial use of a work by the government, public libraries, etc.
I hope that our tour of the limits and exceptions to copyright control has been informative. I promise that going forward, there will be more tutorials on the intricate subject of copyright.
See you next week.