THE DEFENCE OF FAIR DEALING AND FAIR USE
As earlier discussed, copyright infringement attracts criminal or civil liability depending on the nature of the infringement. There are some defences to Copyright infringement. The rationale behind the existence and allowance of these exceptions even by the Copyright Act is to ensure that creative works can still be used by society as long as it does not affect the rights of the owner. This means that works protected by Copyright can still be available for use subject to statutory limitations, attracting no liability. Notable amongst these exceptions is Fair dealing and fair use.
The peculiarity of the defence or exception of fair dealing is that it can serve as an escape for a party despite the commission of acts that should ordinarily attract liability. The principle of fair dealing and fair use allows a user to copy a work without the owner’s permission subject to certain limitations.
Fair dealing and fair use are used interchangeably with fair use being obtainable under the United States Copyright Act. Conversely, what is provided for in the Nigerian Copyright Act 2022 is “Fair dealing”. The concept is nearly impossible to define because of the various complexities of its coverage and application. It can be described as a defence against copyright infringement that permits the usage of a work without the Owner’s permission. We would however examine the principle in order to get a clear-cut understanding.
Under the Second Schedule of the Old Copyright Act, Fair dealing was restricted in scope as the Act provided that fair dealing for the purposes of research, private use, criticism or review and other listed purposes would excuse a user from liability despite being used without the permission of the Owner of the work. The implication of this provision is that any use that does not fall under this restrictive definition would be regarded as an infringement if same is done without the consent of the owner.
The Copyright Act 2022 provides a more open definition of this exception. Section 20 (1) (a) provides that fair dealing purposes are acts such as private use; parody, satire, pastiche, or caricature; non-commercial research and private study; criticism, review or the reporting of current events which shall include acknowledgement of the work and its author. The list continues till paragraph (r), providing a long list of exceptions, though not exhaustive. The inclusion of the phrase “such as” before the list presupposes that this list is merely a guide and not an exhaustive list, meaning other similar use can be accommodated.
The inclusion of all of these acts as fair dealing does not however empower a user to indiscriminately use the work of an author unauthorised as this would defeat the purpose of the protection granted to owners of creative work. This means that where it can be shown that the defence is merely a cover for the flagrant disregard of the rights of the Author, this defence would not avail as it is not meant to be wielded as a weapon to be abused. Therefore, reproducing in its exactness, the entirety of an author’s work cannot be held to be fair dealing irrespective of its suitability as a work for private study or review.
The Copyright Act further gives factors to determine whether an act qualifies as fair dealing in the provision to Section 20 (1)(a) which is an offshoot of the provisions on fair use rights in Section 107 of the U.S. Copyright Act. They are:
(i) Purpose and character of its usage,
(ii) Nature of the work,
(iii) Amount and substantiality of the portion used in relation to the work as a whole, and
(iv) Effect of the use upon the potential market or value of the work.
These factors listed above are essential in assisting the court determine whether an unapproved usage of a work is covered by the defence of fair dealing because the circumstances of cases differ and each must be decided on its own merit. These factors take into consideration the manner the work being dealt with and the quantum of the use. It also checks whether the author’s right to profit from his work has been tampered with. What this ensures is that while the user can enjoy the use of the work, it must not be to the detriment of the Author.
The failure of the Act to clearly define the boundaries of what constitutes private use, parody, non-commercial research, criticism or review leaves the court with the absolute power to interpret the provisions of the law in light of the circumstance, without a defined boundary as to what makes up any of these acts and what acts would be deemed as excess of this provision.