FAIR USE AND FAIR DEALING; AN ANALYSIS OF COPYRIGHT LAW IN NIGERIA


FAIR DEALING UNDER THE NIGERIAN COPYRIGHT LAW  

ABSTRACT

Copyright is gradually assuming prominence in this country. This is not surprising because of its economic significance. Copyright seeks and aims at protecting the author’s economic interests nationally and internationally. It is not only of economic significance to the authors but also to the public in general.Copyright does not prohibit all copying or replication. It is not one of those rights that admit of no exception. This shows that certain acts are exempted from copyright control. The Copyright Act, especially schedule two thereto, specifies a number of exceptions from the general principle of copyright control. The exceptions do not have general application to all the eligible works. Its application depends on the nature and type of a particular work. All the exceptions specified in the Second Schedule to the Act apply to Literary, Musical, Artistic Works and Cinematograph Film; they have limited application in respect of Sound Recordings and Broadcasts. Sound Recordings are only subject to paragraphs (a), (h), (k), (l), and (p) of the Second Schedule, while at the same time paragraphs (a), (h), (k), (n), and (o) apply to broadcastsThere are also some other special exceptions specified under the third schedule in respect of sound recordings of musical works. Moreover, other exceptions abound throughout the length and breadth of the Copyright Act.These exceptions make it clear that copyright in work is not infringed by any person whose act comes within the context of any of the specified exceptions.The aim of this work as the title suggests is to discuss the relevant provisions of the Copyright Act that protects Fair Dealing. Infringement under the law is not condoned but when the act or omission is carried on under some special circumstances of Fair Dealing, it is not regarded as infringement under the law.The copyright law made provisions for the protection of intellectual works, criteria for eligibility, originality, fixation and duration of copyright works as well as sanctions or punishment for infringement of such works but the copyright law made copious provisions for exceptions. For instance, it is not infringement by doing any of the acts reserved for the copyright owner by way of Fair Dealing for purposes of research, private use, criticism or review or the reporting of current events. It is these exceptions and others that are regarded as Fair Dealing under the Copyright Act.With a view to achieving the purpose of this the work, is divided into Chapters each Chapter dealing with a distinct aspect of the Copyright Act.The introductory aspect of copyright, including Meaning of Intellectual Property, Copyright, the Rationale for Copyright Protection, as well as the Nature and Scope of Copyright will be discussed in Chapter One.The Historical Evolution, Ownership, Duration, Transfer, and Transmission, Copyright and other related Rights (Neighboring Rights) and the Socio-economic impact of Copyright Act in Nigeria, Administration of Copyright in Nigeria and Challenges to Effective Copyright Administration in Nigeria will be taken care of in Chapter Two.Infringement of Copyright Meaning of Infringement, Modes of Infringement, Proof of Copyright Infringement, Enforcement and Remedies and Exceptions to Copyright Control is dealt with in Chapter Three.The Concept of Fair Dealing in Copyright Protection, Nature of Fair Dealing in Copyright Protection, Rationale for Fair Dealing as an Exception to Copyright Protection forms the Fourth Chapter.Chapter Five deals with Fair Dealing and Challenges to Copyright Protection, Challenge of Copyright in the Digital Age, Challenge for Educators, Copyright Act: Copyright Challenge in NigeriaChapter six is the concluding part of the thesis, which includes the recommendationsmade

TABLE OF CONTENTSTitle Page    iCertification    iiDedication    iiiAcknowledgement    ivAbstract    vTable of contents    viiTable of Cases    ixTable of Statutes    xivTable of Abbreviations    xvi

CHAPTER ONECHAPTER ONE: INTRODUCTIONMeaning of Intellectual Property    1History of Intellectual Property    3Meaning of Copyright    6Rationale for Copyright Protection    13Nature, Scope and Subsistence of Copyright    21Criteria for Protection    36

CHAPTER TWO: NATURE AND EFFECT OF COPYRIGHT PROTECTIONHistorical Evolution of Copyright    39Ownership of Copyright    43Duration of Copyright    50Transfer and Transmission of Copyright    51License    55Copyright and Other Related Rights (Neighbouring Rights)    60The Socio-economic impact of Copyright Act in Nigeria    71Administration of Copyright in Nigeria    75Challenges to Effective Copyright Administration in Nigeria    84

CHAPTER THREE: INFRINGEMENT OF COPYRIGHT AND EXCEPTIONS TO COPYRIGHT CONTROLMeaning of Infringement        96Modes of Infringement        103Proof of Copyright Infringement        132Enforcement and Remedies        136Exceptions from Copyright Control        155

CHAPTER FOUR: THE CONCEPT OF FAIR DEALING PROTECTION    IN    COPYRIGHTFair Dealing as a Concept in Copyright        169Nature of Fair Dealing in Copyright Protection        172The rationale for Fair Dealing as an exception to Copyright Protection        176

CHAPTER FIVE: FAIR DEALING AND CHALLENGES PROTECTION    TO    COPYRIGHTChallenge of Copyright in the Digital Age        183Challenges for Educators        191Fair Use and Professional Responsibility        192Restrictions for Fair Use        193Copyright Act: Copyright Challenge in Nigeria        195Fair Dealing as a Balance between User Right and Copyright Protection    198Challenges to Copyright Protection Generally    210

CHAPTER SIX: CONCLUSIONConclusion / Recommendations    218Bibliography

CHAPTER ONEINTRODUCTION1.0    Meaning of Intellectual Property.The term Intellectual property could simply be said to be that which deals essentially with ownership. There is generally no one acceptable definition of the term Intellectual Property but it could be said to be that which relates to all or any of those categories of property, which are acquired through intellectual creativity. They are normally intangible in nature and are subject to ownership with the entire attendant legal incidence.Intellectual Property is a legal field that refers to creations of the mind such as musical, literary and artistic works; intentions, and symbols, names, images and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under Intellectual Property Law, the holder of one of these abstract “Properties” has certain exclusive rights to the creative works, commercial symbol, or invention, which is covered by it.   The laws of some government have recognized forms of intellectual property for a few centuries, but other government’s scholars question the legitimacy and philosophical basis of such laws. Several international treaties since the 19th century have standardized many aspects of the law, but the laws and enforcement still vary widely from one jurisdiction to another. Furthermore, the understanding and observance of Intellectual Property Laws by individuals are widely varied.Obviously this Branch of Law has grown enormously over the years thus leading to its separation from the wider and pre-existing prawns of property law. This may be attributed to the growth and development in science and technology. The introduction of this technology has led to learning and inventions being spread more widely to the masses. From the foregoing, one would be faced with the inevitable question, whatsorts of intellectual creations are covered by the law of intellectual property.Basically, there are four major subjects of intellectual property law viz: Copyright, Trademarks, Patents and Industrial Designs. The last three are usually called “Industrial Property” mainly because they substantially concern industrial processes and application.Copyright operates to control the copying of intellectual materials existing in the field of literature and the arts, protecting the writer or artist against the unauthorized copying of his materials thereby giving the copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. The primary concern of Copyright is with expression of ideas, such expression boarding mainly on originality and not necessarily novel and they may be in the form of literary, artistic, musical or other works of art. The right generated or acquired through Copyright is conferred automatically in Nigeria without registration.Trademark on its own deals chiefly with marks that are used or proposed to be used in relation to goods for the purpose of indicating a connection between the goods and the proprietor of the mark. It is a distinctive sign which is used to distinguish the products or services of different businesses. It must be mentioned at this point that such mark or symbol must be used in the course of trade. This right being a monopoly right is registerable and upon registration the right is protected both under statute and common law or passing off as was applied in the case of Patkun Industries Ltd V Nigeria Shoes Manufacturing Co. Ltd 1A Patent on its own is an exclusive right granted by law to an inventor guaranteeing him the exclusive use and exploitation on the industrial process as invented. A Patent is equally registerable. It gives the patent holder a right to prevent others from practising the invention without licence from the inventor for a certain period of time. The right to an Industrial Design similarly consist of the right in the reproduction and1(1988) 5NWLR (Pt 93) 138 and Ayman Ent Ltd V Akuma Ind. Ltd (2003) 13NWLR (Pt836) 22.use of a registered design intended to be used as a model or pattern to be multiplied by any industrial process and is not intended solely to obtain a technical or functional result. An Industrial Design right protects the form of appearance, style or design of an industrial object (eg spare parts, furniture or textiles) A Design is registerable if it is new and not contrary to public order or morality2 –An Industrial Design is any combination of lines or colours or both and any three- dimensional form whether or not associated with colours if it is intended by the creators to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. It is noteworthy that the law of Industrial Property frowns at any similarity even if coincidental but the law on copyright only prohibits unauthorized copying.“Intellectual Property” denotes the specific legal rights, which authors, inventors and other Intellectual Property holders may hold, and exercise, and not the intellectual work itself. Intellectual Property Laws are designed to protect different forms of subject matters, although in some cases there is a degree of overlap.Patents, Trademarks, and Designs Rights are sometimes collectively known as Industrial Property, as they are typically created and used for industrial or commercial purposes.    History of Intellectual PropertyThe earliest use of the term ‘Intellectual Property’ appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et all. V. Brown 3 in which Justice Charles L. Woodbury wrote that:2 Patents And Designs Act Cap P2 Laws of Federation of Nigeria, 2004 S.12, S. 13(1); Uzokwe V Dansy Ind Ltd (2002) FWLR (Pt 90) P. 13223 1 Woodb. & M53, 3 West. L.J 151, 7F. Cas.197, No. 3662, 2 Robb. Pat.Cas. 303, Merw. Pat.Inv 414Only in this way can we protect intellectual property, the labours of the mind, productions and interest as much a man’s own… as the wheat he cultivates, or the flock he rears.The statement that ‘discoveries are …property’ goes back earlier.The French Copyright law4 stated‘All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years’.In Europe, French author A. Nion mentioned ‘propriete intellectualle’ in his Driots Civils des Auteurs, Artistes et Inventeurs, published in 1846.The term’s widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organisation (WIPO), which actively tried to promote the term. Still, it was rarely used without scare quotes until about the time of the passage of the Bayh- Dole Act in 1980.- 5The concepts origin can potentially be traced back further. Jewish Law includes several considerations whose effects are similar to those of modern Intellectual Property Laws, though the notion of intellectual creations as ‘property’ does not seem to exist. - 6. The Talmud contains the first known example of codifying a prohibition against the stealing of ideas, 7However, the legal system of most of the Western world does not have provisions for Intellectual Property and the laws the term encompasses are justified on more constrained grounds. The term does not occur in the United States Copyright Statutes,4 French Copyright Law 1791, Section 15 Mark A. Lemley: Property, Intellectual Property, and Free Riding available at http://papers.ssrn.com/sol3/papers.cfm6 Jewish Law and Copyright available at http://www.nysun.com/article7 Shulchan Aruch.: dot Communist Manifesto available at http://emoglen.law.columbia.edu/publications/dcm.hmlexcept in certain footnotes citing the title of certain Bills. The term used in the Statutes and in the Constitution is ‘exclusive rights.’In conclusion, Intellectual Property accords recognition to ownership of property incorporeal and ownership as a constitutive term is used with reference to such things. Ownership was defined by SalmondAs the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right8.This shows that ‘things’ has two meanings depending on whether it is used with respect to physical objects, corporeal things or certain rights, incorporeal things. Dias stated9-That since ownership is only of things, it too is ‘corporeal’ or ‘incorporeal’ which is but an elliptical way of saying that ownership is of corporeal or of incorporeal things. This former is to physical objects whilst the latter is to grouping of claims, liberties etc. in so far as sufficient labour and judgement has been spent in its creation, the law accords the work as much propriety rights as it does other corporeal or tangible items such as house, land, goods etc. Hence ‘the sweat of a man’s brows and the exudation of a man’s brain are as such a man’s property as the breaches upon his backside10Eminent jurists such as Sir William Blackstone and Manfield Lord have taken the view that intellectual creation are to be secured to their producers and their successors in interest to the same extent as other kinds of property and that the public has no more right or justification to tamper or impair the originators property in his mental creations that it has to deprive him of any other of his possessions. Hence, Intellectual Property is not the mere creature of statute but a natural and civil right entitled toprotection in law.8 Salmon John: Jurisprudence, 12th Ed, Sweet & Maxwell, London 1966, pg 9019 Dias R: Jurisprudence, 5th Ed, Butterworths, London, 1985, pg 296,10 Lawrence Sterge, Tristan Shandy: Copyright, pg 34 quoted in Gardient 88 LOR 507.    Meaning of Copyright‘Copyright’, as a term like most legal concepts is a complex phenomenon, which has defied an all embracing, comprehensive and universally acceptable definition. It covers a wide range of subject matters and interests and it requires passing certain tests before such subject matters could attract protection. The protection offered by copyright must be able to reflect its attributes. Each of the definitions neglects one essential attribute or another of copyright. This explains why there is no agreement amongst writers as to the exact meaning of copyright. The only common thread that runs through the definitions is that copyright is an exclusive right.The Copyright Act11 simply defines the term ‘Copyright’ as ‘Copyright under this Act’12 (there is no such provision in (Cap C28 of 2004 Act).The definition is inadequate and imprecise, but a painstaking surgery of the length and breadth of the Act offers the exact scope and nature of the subject matter - Copyright. Copyright in relation to eligible work is the exclusive right to control, to do or authorise the doing of any of the acts restricted to the copyright owner- I. J Adenuga V Ilesanmi Press Sons (Nig) Ltd13 .These are however subject to certain exceptions.14Copyright is defined asThe right of literary property as recognised and sanctioned by positive law. An intangible, incorporeal right, granted by statutes to the author or originator of certain literary or artistic productions, with the sole and exclusive privilege of multiplying copies of the same, publishing and selling them.15This depicts Copyright as a personal right, which is not of a tangible nature. Secondly, it is a creature of statute; thirdly, it is vested in the author or originator of protectable work. Lastly, it confers exclusive right in relation to an eligible work.11 Copyright Act, Cap C 28 Laws of the federation of Nigeria , 2004.12 Copyright Act. Cap C 28 Laws of Federation of Nigeria, 2004, S. 39(1)13 (1991) 5NWLR (PT 189) 82.14 Copyright Act, Cap C 28 Laws of Federation of Nigeria., 2004. Second Schedule15 B.A. Garner: Blacks Law Dictionary , 8th Ed, St Paul Minn West Publishing Co., U.S.A, 2004, P.g304,The aforementioned ingredients are on all fours with the generality of our copyright Act. However, this definition (i.e. Blacks Law Dictionary) is circumscribed to ‘certain literary or artistic’ works only. Copyrightable works mean something more than ‘certain literary or artistic’ works. Under the Act16, the following works are eligible for copyright that is;(i)    Literary works(ii)    Musical works(iii)    Artistic works(iv)    Cinematograph films(v)    Sound recordings and(vi)    Broadcasts.In what appears to be more comprehensive definition, the Mozley and Whiteleys Law Dictionary 17 defines Copyright thus:Copyright in relation to an original literary, dramatic or musical work is the exclusive right to do, or authorize other persons to do, certain acts in relation to that work. Such acts include reproducing the work in any material form, publishing it, performing it in public, broadcasting it, or making any adaptation of it. This type of copyright generally speaking, lasts during the lifetime of the author or for fifty years after his death. Copyright similarly subsists in artistic works, sound recordings, cinematographic films, and television and sound broadcasts18Copyright is not a monopoly right. It does not prevent others from creating identical work provided the identical work is conceived of independently. It is a negative right to prevent the appropriation of the work of one man by another. – Coreli V Gray 1916 Copyright Act, Cap C28 Laws of Federation of Nigeria 2004, Section 1(1)17 Mozleys: Law Dictionary, 8th Ed, Butterworths & Co, London, 1968, pg 87.18 this definition is patterned on the English Copyright Act 1956 and the Dramatic and Musical Performances Protection Act 1958-19 (1913) 29 TLR 570,571; Halburys: Statutes of England, 3rd Ed, Butterworths & Co. London, Vol 7, 1962, pg 130.This was reinstated in Brazier and Jeffs20According to Lord Atkinson in Macmillan & Co V Cooper21The moral bases on which the principle of protective provisions of copyright rests is the eight commandments ‘thou shall not steal’It follows therefore that copyright is a right statutorily endowed on the author or creator of a work eligible for protection.Copyright has also been defined as an exclusive legal right, held for a certain number of years, to print, publish, sell, broadcast, perform, film or record an original work or any part of it22, this definition gives the wrong notion that the only qualification required of a work to be protected is originality whereas originality is just but one of the tests that a work has to pass to attract copyright protection or the exemptions from copyright control.According to another writer, copyright is simply the exclusive right to control the doing in Nigeria of certain acts in relation to the work in which the right subsists 23, This does not take into account the fact that the right conferred by copyright is not perpetual in nature. Another problem inherent in this definition is the absence of the nature of works in relation to which the right is granted. Another definition of copyright is the effect that it is the right of an author to prevent others from publishing or reproducing his work without his consent.24, This definition has not only failed to recognise the fact that publication or reproduction can be made under certain circumstances without the consent of the author, but it has also20 Clerk and Lindsell: Law of Tort, 15th Ed, Sweet &Maxwell, London, 1982.21 (1923) 40 TLR186, 187,22 Hornby A. S: The Nigerian Copyright Act with Introduction & Notes, Sam Bookman, Ibadan, 199423 Asien J.O: The Nigerian Copyright Act, Bookman, Ibadan,199424 Oke G. D.:The Criminal Liability of a Pirate: Nigerian Copyright Decree 1988, Justice, March 1992not indicated that it does not take into cognisance of the non- perpetuity of the right.One other definition of Copyright is the exclusive right of the owner of certain works which qualify for protection under copyright to reproduce, communicate to the public or broadcast, adapt or translate the whole in work or a substantial part of the work either in its original form or in any other from recognisably derivable from the original25, This definition gives the impression that the right conferred on the authors by copyright is absolutely exclusive. But the numerous exemptions contained in the Second Schedule to the Copyright Act, have denied the copyright owner of absolute exclusiveness. Another shortcoming of this definition is its non-recognition of the fact that the exclusive right is of limited duration.We shall attempt to modify and adopt Sodipo’s definition by supplying the missing element thus:Copyright is the exclusive right belonging to the owners of certain works which qualify for protection for a limited number of years under copyright to reproduce, communicate to the public or broadcast, adapt or translate the whole either in its original form or in any other form recognisably derivable from the original, except for certain limited purposes.Prof Okany defines copyright asThe monopoly right conferred by law or an institution to do or to restrain others from doing certain acts with respect to the author’s original literary, musical or artistic work26Another definition is that, Copyright is an economic right granted to the owner, to enable him control his benefits of communication of the work of his authorship.25 Sodipo B: Lessons on copyright, the Gravitas Review of business and Property Law; March 1989.26 Prof Okany: The Nigerian Law of Property; Fourth Dimension Publishers, 1st Ed, Enugu, 1986, pg 983,Copyright is mainly concerned with the negative right of preventing the copying of physical material in the field of literature.Copyright does not involve or affect the ideas one has until, it is put down in a concrete form. Before 1970, there were no Copyright Laws in Nigeria. The Nigerian Copyright Law was contained in the Imperial Statute that is the Copyright Act27, which was extended to Nigeria by Order in Council. The Imperial Statute contained a number of inadequacies, which were unsatisfactory. It recognised the right of copyright owners, but did not contain commensurate remedies for these rights when infringed upon.Copyright is the right of an author to control the reproduction of his intellectual creation. It prevents others from reproducing his personal expressions and creation without consent. Copyright Act as it is presently configured recognises all the pecuniary and moral prerogatives due to the author. In this sense, copyright is more often than not recognised as legislation in spelling out the legal and moral rights, privileges and obligations of authors, assigns of Copyright, users of creative work and even society itself.It may be noted that Copyright is a monopoly right and its monopoly lies in the general benefits derived from the labours of authors. It is the equivalent given by the public for the benefit bestowed by the genius and meditations and skill of the individual and the incentive for further effort for the same important object.However, the foundation of all rights of this description is the natural domination which every one has over his ideas, the enjoyment of which although they are embodied in visible forms or characters, he may if he chooses, confine to himself or impart to others27Copyright Act 1911but as it would be impractible for civil society to prevent others from copying such characters or form without intervention of Positive Law and such intervention is highly expedient, because it tends to the increase of human culture, knowledge and convenience, it has become the practice of civilized nations in modern times to secure and regulate the otherwise insecure and imperfect right which according to the principles of natural justice belong to the author of new ideas28.Suffice to mention that presently in Nigeria the Copyright Act29grant the exclusive right to control the doing in Nigeria, in the case of (a) literary or musical works such acts as:(i)    Its reproduction in any material form(ii)    Publication(iii)    Public performance(iv)    The production, reproduction, performance or publication of its translation etcIn the case of (b) an artistic work, -S. 5 (1) (b). Its(i)    Reproduction in any material form(ii)    Publication(iii)    Inclusion in any cinematography film etcThe Concise Oxford Learner’s Dictionary30 defines “control” as power or authority to direct order or restrain. The same book describes ‘own’ as a word to2 Bouvier’s: Law Dictionary, 3rd Ed, Sweet & Maxwell, London, 1956, pg 89,29 Copyright Act No 47 1988, S. 5(1)30 Hornby A. S: Oxford Advanced Learners Dictionary, 6th Ed, Oxford University Press, London, 2001, pg 206,give emphasis to the idea. These terms are highly illustrative of what is meant by Copyright. In a particular case of Hellinrake V Trustwell31,It was expounded by Lindley J in that caseThat copyright does not extend to ideas or schemes or methods, it is confined to their expressions…However, it will be pertinent to state that a Copyright is a right incorporeal i.e. not tangible. This is quite different from rights in land and rights arising from contractual relationship.However, the Act32 provides a requirement for works, which are eligible for copyrights, is that sufficient efforts must have been expended in making the work to give it an original character33The commitment to creativity has been universally recognised and given official expression in the Universal Declaration of Human Rights which states as follows:Everyone has the right to freely participate in the cultural life of the community to enjoy arts and to share in scientific advancement of the benefits; everyone has the right to the protection of the moral and material interests resulting from any scientific, literarily or artistic production of which he is the author3431 (1894) CHD 420 AT 42732 Copyright Act Cap C 28 Laws of the Federation of Nigeria 2004, S. 1(2)33 Copyright Act Cap C 28 Laws of the Federation of Nigeria 2004, S. 1(2) (a)34 Article 27 of the Universal Declaration of Human Rights, 1948    Rationale for Copyright ProtectionThis shows the reason for copyright protection. In other words why copyright protection? The answer to this question is that copyright is a property, which like any other kind of property should be protected by law for the general good of the owner and society. This answer begs the question: what is property?The concept “property” has changed significantly over time. Thus, property, scientifically defined, is the jural relationship between two or more persons in relation to a thing. It is not the thing itself but the right to use and enjoy the thing. It includes the right to exclude others from using the thing. But to many laymen, when we talk of property what readily comes to mind is the tangible property such as a house, car, table, etc. people, particularly laymen, rarely think of other types of intangible property such as rights, privileges, immunities, duties, obligations, etc. in some cases both lawyers and laymen rarely think of modern property such as Trademarks, Copyright, Patent, Shares, Gratuities, Pension, Labour and Expectation.Copyright Protection on Economic BasisAccording to the Copyright Act, the following works are entitled to copyright protection:(a)    Literary works(b)    Musical works(c)    Artistic works(d)    Cinematograph film(e)    Sound recording, and(f)    Broadcasts35In the modern conception of property, all works mentioned above are property and,35 Copyright Act Cap C 28 Laws of the Federation of Nigeria, 2004, S. 1(1)therefore, deserve to be protected. They properly belong to the broad division of theinstitution of “Private Property”. By Private Property, we mean property in which the proprietary interest is invested in an individual for his use and enjoyment. The owner of a Private Property has the right to exclude anybody from the use and enjoyment of his property. Economically, therefore, Property means Wealth, Power, Capital, Office etc. For example, an owner of a copyrightable literary work, has wealth in the book he wrote. One of the cardinal objectives of copyright protection is to prevent unjust enrichment by one from the sweat of another. That is to say, copyright law frowns at a freeloader. It encourages creativity, innovation, craftsmanship, originality, labour, and productivity. All theses are economic bases for the Copyright Law.This has been succinctly summarised in the statement thatNothing can with propriety be called a man’s property than the fruit of his brains. The property in an article or substance according to him by reason of his own mechanical labour is never less arduous and consequently no less worthy of the protection of law36Again reiterating and emphasizing the principle that the products of labour and exertion of mental faculty deserve to be granted property rights, Laurence Sterne bluntly spelled out the need for protection of Copyright as follows:you may find it in fragments of Gregorius and Hermomogene’s codes, and in all the Codes from Justinian down to the Codes of Linus and Des Eaus… that the sweat of a man’s brains, are as much a man’s own property, as the36 Copinger And Stone James: Copyright, Sweet and Maxwell, London, 1958, p2breeches upon his backside.36In a nut shell, the utmost aim of the Copyright is to protect the property owner of a Copyright work by seeing that his labour is not unjustifiably expropriated or reaped by people who are not the producers of such labour. The economic bases of the copyright law is the making sure that people who make inventions secure the Pride, Reward, Encouragement and Incentive of their Labour. To this end, there is a great relevance with the philosophy of John Locke when he said:Though the earth and all inferior creators be common to all men, yet every man has a ‘Property’ in his own person: this nobody has any right to but himself. The labour of his body, the product of his brain and the work of his hands are properly his. Whatsoever then, he removes out of the state that nature has provided and left it in, he has mixed his labour with it, and joined to it something that is his own, thereby makes it his property. It being by him removed from the common state of nature places it in it that excludes the common right of other men. For this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where enough is, and a good left in common for others.37The word ‘Labour’ economically means production, invention, creation, hard work, multiplication and innovation. The true essence of copyright law is the encouragement36 Gardner: Copyright, Butterworths, London 1896, pg 9137 John Locke: Treatises of Government, Sweet & Maxwell, London, 1690, pg 76 ( also quoted in Richard Schlatter: Private Property, The History of an Idea, Rutgers University Press, New Brunswick, New Jersy, 1951 p54)of creativity, innovation and invention through hard labour either mentally or physically. The fruits of such labour should be reaped by persons or people who sow them. That is the whole corpus juris of the Copyright Law.Thus, it is criminal, fraudulent and cheating to do any acts or omission, which will deprive an owner of a copyrightable work the benefit of his labour. To this effect, Section 15 of the Act38, which deals with the infringement of copyright has prohibited any person without the licence or authorisation of the owner of the copyright, from doing or causing any person to do an act of which is controlled by copyright. Such acts include importation and sale of infringing articles.Other infringements include possessing or making of plates, master tapes, machines, equipments and contrivances used for infringement of copyright; permitting a place of public entertainment or business to be used for an infringing performance or causing to be performed, for the purpose of trade or business any work in which Copyright subsists39.The economic jurisprudence behind the Copyright Law is nothing other than the need to secure economic advantages for owners of Copyright in particular and society in general. To this end it has been remarked that:The protection of a person with a valuable talent would tend to confer benefits upon society if that protection encourages the person to practise his skill within the state. This is a useful tool in… encouraging the spread of new techniques.4038 Copyright Act Cap C28 Laws of Federation of Nigeria, 200439 Copyright Act Cap C28 Laws of the Federation of Nigeria 2004, Section 15. (This is also provided in S. 19 of the Act)407Miller and Davis: Intellectual Property; Patents, Trademarks and Copyright, West Publishing Co, St Paul, Minnesota, 1983, Pg6.The conditions precedents to modern development are the provision of incentive to owners of labour, either manually or mentally. For this reason, another proponent for copyright protection has this to say:Copyright law wants to give any necessary support and encouragement to the creation and dissemination of fresh signals, or messages to stir human intelligence and sensibilities. It recognises the importance of these excitations for the development of individuals and society. Especially, is Copyright directed to those kinds of signals which are in their nature fragile… so easy of replication that incentive to produce would be quashed by the prospect of rampant reproduction by freeloaders. To these signals, Copyright affords what to be have been called ’headstart’ that is a group of rights amounting to qualified monopoly running for a limited time41.Hence, copyright is a fragile property, which depends on the help of law for the protection of the real owner.It is because of this recognition of the helplessness of the real owner that the constitution of United States of America, for example provides that:The Congress shall have power to promote the progress of science and useful Arts by securing for a limited time to authors and inventors the exclusive right to their respective writings and discoveries42. 41 Choate, Francis and Collins: Cases and Materials on Patent Law including Trade Secrets- Copyright – Trademarks; 3rd Ed, West Publishing Co., St Paul Minnesota, 1987; Pg 800-801.42 Constitution of the United States of America, Art. 1 Section 8, Clause 8It is regrettable that the 1999 Nigerian Constitution did not contain such an express provision on Copyright. The Nigerian Copyright Law is not therefore, anchored on the Constitution, but on the Copyright Statute simpliciter. It is suggested at this stage of this paper, that the omission should be corrected whenever opportunity presents itself for a revision of the country’s Constitution43.Property Rights and CultureCopyright is one of the most important property rights recognised by modern property concepts.In the English conception of the words, ‘Property Rights’ mean ‘Ownership’. In Jurisprudence, Ownership means the totality of interest in a thing. This includes the Right to Reversion, the Right to Alienate, the Right to Possession, the Right to Use and Enjoyment and the Right to Destroy the Thing. An owner of Copyright has all these rights.Economically, “Property” means ‘Wealth and Capital’. Politically, it means ‘Power, Liberty and Submission to the Will of an Owner’. It also means ‘Independence, and Freedom’. Socially, it means ‘Egoism, Recognition and Status.’According to the Scholars of Law and Economics, people are rational maximizers of their self-interest and the goal of the Legal System should be merely to facilitate their ability to pursue their self-interest44 Copyright Law being the law that has its origin, concept, ideology, and philosophy from the Western Capitalist system of political economy, it seeks to maximize the interest of Copyright owners. Economic importance is therefore; highly attached to the law to secure maximum economic benefit to owners of works eligible for Copyright protection. Diametrically opposed to 43 The 1999 Constitution of Nigeria also does not include such a provision.44 J. W. Singer: Legal Realism Now : Review Essay, Unpublished, Boston University; Boston, 1987, Pg. 88.this goal, is the African concept of property right, of which Nigeria is part. Culturally, the African concept of property rights is Communalistic, Socialistic and Collectivistic. In western jurisprudence, it is akin to the Utilitarian Theory of Property, which advocates maximum happiness to the greatest number of people and minimum displeasure to the maximum number of people.Culture, it is said, is the way of life of a particular group of persons or society. African way, of which Nigeria is a part, is Collectivistic, Socialistic, Communalistic Altruistic and Utilitarian.As we have already observed above, long before the arrival of Europeans into the geographical area now called Nigeria, some of the works that are now eligible for copyright were actively practiced or performed. For example, ‘weaving, pottery, sculpture, crafts, arts, drama, music, dance, smithry’, etc. there were no Copyright Laws to protect creators and innovators of these varieties of Copyrightable works as it is today. Because of Nigerian Culture, it was even doubted whether such laws, if they existed, ever had impact on the society. This doubt is expressed because of the total lack of economic motive or interest by creators, innovators and inventors of these works, which are now protectable by Copyright Law. To the owners of such works e.g., musical or artistic, the product of their labour was to provide happiness to the maximum number of people. It was for entertainment and pleasure. It was Socialistic, rather than Economic. This is notwithstanding the gifts which participants of such social gatherings poured on singers, dancers, and drummers whenever there were ceremonies e.g. Marriage, Naming, Burial and Harvest.Secondly, there were no personal property rights as known to English Legal System like, say Ownership of Songs, Music and Poems. Artistic works were never controlled by their composers. People imitated one another freely and openly with impunity. Itwas a thing of pride on the part of the originators of such works to hear other personsimitate their songs or arts. The Cultural and Social effects of such imitations were to boost the ego and moral of the original authors of such works. It had no economic consequences or motive.Thirdly, because of the interactions and contact with the outside world and the emerging notion of a global village, it becomes inevitable for us in Nigeria to shift away from the age-old concept of property rights to one, which is more individualistic. This is necessary if copyright law is to have any impact on the bases of individual rights or the maximization of their copyright interests. Today, photocopying, piracy and other unauthorised reproductions of copyright works are rampant with disregard for the interests of copyright owners. Infringement of Copyright works has become a culture, especially in the entertainment industry. The perpetrators often anchor their atrocious acts of infringements on cultural grounds such as free entertainment, the boosting of the author’s ego and morale. According to Nigerian Culture, there is no necessary link between economic interest and Copyrightable works. Because of this cultural background, the infringers of Copyright Law do not know the incalculable harm they cause to bear on authors of such Copyrighted works. Notwithstanding the enormous resources expended by Copyright owners in legitimately producing their works, Copyright infringers see themselves, culturally, as persons who are promoting the ego and moral of the original authors, forgetting the economic harm they cause to owners and society as a whole. They hardly realise that societal values are changing along with the society. The old property concept which gave little or no regard to the economic interest of Copyright owners has given way to the new concept of property rights whose aim is to maximize the economic self-interest of the original owners of Copyright works.In my view therefore, Nigerian Culture is a hindrance to the development of aneffective law for the protection of copyright works. This is because Nigerian culturehardly recognises the changes in modern property right that place much emphasis on the economic interest of Copyright owners. All the protected rights are not merely for entertainment, festivities and ceremonies. Nigerian Culture should take cognis

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FAIR USE AND FAIR DEALING; AN ANALYSIS OF COPYRIGHT LAW IN NIGERIA



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