Presentation on theme: "SCOPE OF COPYRIGHT EXCEPTIONS AND LIMITATIONS. INTRODUCTION In its bid to mitigate the effect of absolute protection for the author and protect the larger."— Presentation transcript:
SCOPE OF COPYRIGHT EXCEPTIONS AND LIMITATIONS
INTRODUCTION In its bid to mitigate the effect of absolute protection for the author and protect the larger public interest, the copyright system strives at a balance. This need has always been recognised all through the history of copyright and was given special mention during the negotiations leading up to the Berne Convention hence the provisions in the text allowing member states to limit the rights of authors in certain circumstances. This balance is achieved by introducing various exceptions or limitations to the rights granted under the copyright law. For instance, the law may limit the scope of protection available to authors by expressly excluding certain materials within a category of works. Such limitations are justified on the basis of public policy that such materials should be available to the public without hindrance. Court decisions (not the law reports) or news of the day are treated as such. Many countries also expressly exclude other materials such as the official texts of a legislative, administrative or legal nature and their official translations.
Although this is not expressly provided for in the Nigerian Act, such exceptions may be implied. Apart from express limitations, the Act also allows for a number of exceptions whereby although the particular work is protected, an action that otherwise would have constituted an infringement is excused in particular circumstances. Exceptions under the Act are provided for in the Second Schedule and to a limited extent in the Third Schedule. What the Act has done is to make the definition of the nature and scope of the rights in a particular work subject to some or all of the exceptions in the Second Schedule. Special exceptions that also exist in the Third Schedule have limited application to sound recordings of musical works. As a matter of procedure, it may be argued that the exceptions are not mere defences and so the defendant does not need to plead them in his defence except as facts peculiarly within his knowledge. A defendant who is able to prove that the nature and circumstances of his action come within any of the exceptions would be absolved from liability. Unlike limitations, exceptions from copyright control are subject to special conditions and they therefore represent “a more limited concession that certain kinds of uses of works that are otherwise protected should be allowed.”
In other words there are in those circumstances good reasons to subjugate the private right of an individual to the overriding public interest warranting the exceptions. In some other cases, the authorisation to use the copyright materials is granted by law, with or without recourse to the owner, subject only to stipulated obligations including the payment of appropriate remuneration to the copyright owner. These other provisions are not exceptions, as such, but a form of compulsory or statutory licence. It should be noted that while all the exceptions in the Second Schedule apply to literary, musical and artistic works as well as cinematograph films, the Act is selective on the particular exceptions that apply to sound recordings and broadcasts. By reason of section 7, sound recordings are only subject to paragraphs (a), (h), (k) (l) and (p) while broadcasts are subject to paragraphs (a), (h), (k), (n) and (o) only.
SCHEDULE TWO EXCEPTIONS The exceptions provided for in the Second Schedule apply first to the rights granted under section 6 which are the rights in literary works, artistic works, musical works and cinematograph films. Only some of the paragraphs apply to sound recordings and broadcasts. The exceptions are: (a) the doing of any of the acts mentioned in the said section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship except where the work is incidentally included in a broadcast; (b) the doing of any of the aforesaid acts by way of parody, pastiche, or caricature; (c) the inclusion in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public; (d) the reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public; (e) the incidental inclusion of an artistic work in a film or broadcast; (f) the inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is designed for educational use and includes an acknowledgment of the title and authorship of the work; (g) the broadcasting of a work if the broadcast is approved by the broadcasting authority as an educational broadcast; (h) any use made of a work in an approved educational institution for the educational purposes of that institution, subject to the condition that, if a reproduction is made for any such purpose it shall be destroyed before the end of the prescribed period, or if there is no prescribed period, before the end of the period of twelve months after it was made;
(i) subject to the Third Schedule, the making of a sound recording of a literary or musical work, and the reproduction of such a sound recording by the maker or under licence from him, where the copies thereof are intended for retail sale in Nigeria and the work has already been previously recorded under licence from the owner of the relevant part of the copyright whether in Nigeria or abroad, subject to such conditions and to the payment of such compensation as may be prescribed; (j) the reading or recitation in public or in a broadcast by any person of any reasonable extract from a published literary work if accompanied by a sufficient acknowledgment: provided that such reading or recitation is not for commercial purpose; (k) any use made of a work by or under the direction or control of the Government, or by such public libraries, non-commercial documentation centres and scientific or other institutions as may be prescribed, where the use is in the public interest, no revenue is derived therefrom and no admission fee is charged for the communication, if any, to the public of the work so used; (l) the reproduction of a work by or under the direction or control of a broadcasting authority where the reproduction or any copies thereof are intended exclusively for a lawful broadcast and are destroyed before the end of the period of six months immediately following the making of the reproduction or such longer period as may be agreed between the broadcasting authority and the owner of the relevant part of the copyright in the work, so however that any reproduction of a work made under this paragraph – (i) may, if it is of an exceptional documentary character be preserved in the archives of the broadcasting authority (which shall for the purpose of this paragraph be deemed to be part of the National Archives) established under the Public Archives Act; (ii) subject to this Act, shall not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the copyright in the work;
(m) the broadcasting of a work already lawfully made accessible to the public and subject (without prejudice to the other provisions of this Schedule) to the condition that the owner of the broadcasting right in the work shall receive a fair compensation determined, in the absence of agreement, by the court; (n) news of the day publicly broadcast or publicly communicated by any other means; (o) the communication to the public of a work, in a place where no admission fee is charged in respect of the communication, by any club whose aim is not profit making; (p) any use made of a work for the purpose of judicial proceeding or of any report of any such proceeding; (q) the making of not more than three copies of a book (including a pamphlet, sheet music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such a book is not available for sale in Nigeria; (r) the reproduction for the purpose of research or private study of an unpublished literary or musical work kept in a library, museum or other institutions to which the public has access; (s) reproduction of published work in Braille for the exclusive use of the blind, and sound recordings made by institutions or other establishments approved by the Government for the promotion of the welfare of other disabled persons for the exclusive use of such blind or disabled persons. The exceptions will be considered under the following five clusters: (i) Fair Dealing; (ii) Parody, Pastiche and Caricature; (iii) Ephemeral Use of Artistic Works; (iv) Use for Educational Purposes; and (v) Other Use
FAIR DEALING Fair dealing provisions have been described variously as “perhaps the most significant, and the most venerable, limitation on [the] copyright holder’s prerogatives.” This is because of the potentially wide application of this exception and its high dependence on the opinion of the judge. It is essentially a codification of a long standing common law principle permitting the “fair use” of a work either for purposes of illustration, review or criticism, presumably on the understanding that the portion taken would not unreasonably prejudice the interest of the copyright owner. The courts, in developing this exception, permit certain unauthorised but excusable uses which are considered to be in the interest of the larger society. The fair dealing exception applies to all works protected under sections 6, 7 and 8. From its formulation, it is clear that it is not open- ended. determination of whether the act complained of was done by way of fair dealing has to be in the context of at least one of the four activities specifically mentioned in that paragraph, i.e. (i) research, (ii) private use, (iii) criticism or review; and (iv) the reporting of current events. is no clear definition of what fair dealing means in the first place neither is there a consensus on the rules to be adopted in determining fair dealing under Nigerian law. The defence has rarely been raised in Nigerian courts.
In Peter Obe v. Grapevine Communications Ltd. the only known case where the defence has been raised, the defendants had published one of the pictures from the plaintiff’s photo documentary of the Nigerian Civil War. In raising the defence of fair dealing, the defendant argued that the photographs were used “to depict a story of a historical matter of importance and of high public interest” and therefore should be exempted from copyright control as fair dealing under the 1970 Copyright Act (the language of which is the same as the present Act). No further elaboration was offered to justify the claim but the defendant drew the attention of the court to the fact that sufficient acknowledgement was included describing the work as: "Biafra photos, courtesy Daily Times of Nigeria". In responding to the point raised by the defendant, the court merely considered the text of the acknowledgment and came to the conclusion that it fell short of what was required. In a rather incoherent manner, the court held that since the photograph was authored by the plaintiff and not Daily Times, the professional courtesy should have been given to the former. The court also made an issue of the fact that the title of the work was not acknowledged. With due respect to the learned judge, the fundamental issue of whether the defendant’s use qualified, in the first place, as fair dealing should have been the paramount issue for consideration; the question of adequate acknowledgment being only of secondary importance. The court should have pronounced that there is no such defence as fair dealing based on historical importance or high public interest and that the defendants did not establish use of the photograph under any of the four activities specifically mentioned in that paragraph. In approaching the application of this defence, Nigerian courts should be guided by English authorities (from where Nigeria inherited the concept of fair dealing) and exercise more restraint in accepting cases from the U.S. (where the concept of fair use holds sway).
It is also important to always bear it in mind that, as noted by Lord Denning, M.R., in Hubbard v. Vosper, it is impossible to define in precise terms what would constitute “fair dealing”, so the facts of each case would have to be approached separately and with caution. Lord Denning then went on to suggest a general approach in the case of criticism or review: 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 comments, 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 proportions. To make long extracts and attach short comments may be unfair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. It is impossible to lay down any hard-and-fast definition of what is fair dealing, for it is a matter of fact, degree and impression, but the court in Ashdown v. Telegraph Group Ltd., endorsed the following three factors that should be considered in determining if there was indeed a fair According to the learned judge, the defence of fair dealing would have availed the defendant if it was shown that they accompanied the photograph with an acknowledgement of the title of the work and its authorship. dealing, i.e.: (i) whether the alleged fair dealing is in commercial competition with the owner's exploitation of the work; (ii) whether the work has already been published or otherwise exposed to the public; and (iii) the amount and importance of the work which has been taken.
COMMERCIAL COMPETITION The existence of some commercial competition between the activity of the defendant which is claimed to be fair dealing and the copyright owner’s own exploitation of the work in question is indeed the most important factor in determining whether the defence will succeed. One way of testing this is to ask whether the defendant’s work would be seen by purchasers as a substitute for the plaintiff’s work. An affirmative answer will defeat a plea of fair dealing. For instance, the court has held that although a defendant was free to use materials from another’s work and even copy from it, he was not permitted to do so if his use of the material taken was for the same purpose as that for which the copyright owner intended to use it. However, where the activity of the defendant has minimal commercial impact then the plea of fair dealing stands a better chance of succeeding. In the Ashdown case, evidence that the publication in the defendant’s newspaper destroyed a part of the value of the memoirs which he had intended to sell was a major consideration.
PRIOR PUBLICATION The chances of a defendant succeeding in fair dealing where the work allegedly infringed is unpublished are slimmer, particularly where it has been obtained through some less transparent means. Where the work has not been published or otherwise exposed to the public then the courts will be reluctant to hold that there has been a fair dealing. In the Ashdown case, the fact that the copyright work had never been published and that it was obtained in breach of confidence were material considerations in refusing the defence. This is only a general rule and would apply with some force particularly where the act that is excused as fair dealing involves criticism or review. There are exceptional cases where the defendant would be justified in making use of materials that have not been published and may in fact not be the wish of the copyright owner to publish. In such cases the impropriety or the motive of the defendant may become irrelevant so long as other factors exist for a successful defence of fair dealing.
THE AMOUNT AND IMPORTANCE OF THE WORK TAKEN The amount and importance of the portion of the work that had been taken is described as the third most important element. That the portion taken is substantial alone is not sufficient to defeat the defence of fair dealing but where in the opinion of the court the amount taken is excessive in the circumstance this would work against a finding of fair dealing. The amount taken may still be considered substantial even where the amount taken is not much in length but represents the most important portion of the copyright material.
THE PERMITTED PURPOSES Apart from the requirement that the use to which a work is put by the defendant must constitute fair dealing, it must also be for the purpose of research, private use, criticism, review or for reporting of current events. It follows that a plea of fair dealing must pertain to one or more of the approved purposes. It is not unlikely that the courts will interpret this provision very strictly, the general understanding under the relevant international norms being that exceptions should apply in “special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.” For instance, it has been held that the defence of fair dealing for the reporting of current events would not avail a defendant where the event in question is purely historical.
RESEARCH A research has been defined as “a diligent and systematic enquiry or investigation into a subject in order to discover facts or principles.” For the purpose of the Act, there is no distinction between private research and a commercially driven research. But the activity in question must be for the purpose of eliciting facts or principles.
PRIVATE USE Unlike the English Act that talks of “private study”, the exception under the Nigerian Act relates to private use. broader formulation will obviously include private study; “private” being equated to “personal". As seen in University of London Press Ltd. v. University Tutorial Press Ltd., private study is limited to use by the student himself and does not cover the circulation of the offending materials to a group of students. Such use will not qualify as private. In Sillitoe v. McGraw-Hill Book Co. Ltd., the author and publishers of a series of well known O’level literature studies had sued the importer of a series of study notes which they alleged infringed their copyright. The defendants argued that the notes fell within the “fair dealing” provisions of the Act being for research and private study or for criticism or review. The defence of fair dealing was rejected. On the particular head of private study, the court held that the defendants could not avail themselves of that exception since they were not engaged in private study or research but were merely facilitating this for others.
CRITICISM OR REVIEW The objective of the party using a copyright work is of prime importance and where it is shown that it is for the purpose of criticism or review, then this would touch the more fundamental constitutional guarantee of free speech. The exception is designed to protect the critic or reviewer who, bona fide, uses the copyright material to illustrate his review or criticism. So, where the defendant’s object was essentially to provide a listing service, the court refused a claim that it was to illustrate a review or comment. It is therefore not every claim of criticism or review that will necessarily be upheld. In Banier v. News Group Newspapers Ltd., the plaintiff took a photograph which was published in a newspaper. The defendant had tried to obtain a licence for the use of the same photograph but was unable to do so before its publication deadline whereupon it went ahead and published it without permission. In an action for infringement, the defendant argued, among other things, that the publishing of the photograph and the accompanying article amounted to fair dealing for the purpose of criticism or review and was therefore allowed. This claim was rejected by the court, noting that it was totally unreal to suggest that the objective of the publication of the photograph was to illustrate any review or criticism of the copyright work.
REPORTING OF CURRENT EVENTS The court in British Broadcasting Corporation v. British Satellite Broadcasting Ltd., considered the scope of this limitation under the English Copyright Designs and Patents Act 1988 and came to the conclusion that the use of extracts from broadcasts of football matches in a sports news programme came within the fair dealing provision as use for the purpose of reporting current events The court was of the opinion that there was no justification for limiting the defence of fair dealing under the section to the reporting of current events in general news programmes only. The defendant’s programmes were considered to be genuine news reports, albeit confined to news of a sporting character, and at the time the excerpts were broadcast the matches were current events for the purposes of the Act. Besides, the use of the materials was short, pertinent to the news reporting character of the programme and accompanied by an attribution to the owners.
ACKNOWLEDGEMENT There is a condition that where the use sought to be excused is in public, it must be accompanied by an acknowledgement of the title of the work and its authorship; the only exception to this being in cases where the work is merely an incidental inclusion in a broadcast. It is not clear from the Act if this condition is a mandatory requirement for the enjoyment of the exception in every case of public usage. To so hold would be unduly burdensome. The English court in Johnstone v. Bernard Jones Publications Ltd. author’s name did not of itself defeat a plea of fair dealing. According to the court in that case, if part of a work is reproduced and criticisms are offered upon that part, it is not necessary, in order to bring the case within the proviso, that the name of the author should be referred to.
PARODY, PASTICHE OR CARICATURE The Act grants a wide range of exemptions to any act done by way of parody, pastiche or caricature. A parody is a comic imitation or a “speech, writing or music that imitates the style of an author, composer, etc. in an amusing and often exaggerated way.” Similarly, a caricature is defined as a “picture, description or imitation of somebody or something that exaggerates certain characteristics in order to amuse or ridicule.” A pastiche refers to a “literary, musical or artistic work in the style of another author, composer, etc.” These exceptions apply only to literary, musical and artistic works as well as cinematograph films and not to sound recordings and broadcasts. The general justification for the exclusion of these categories of dealings from copyright infringement is that the light-hearted use of a work is not presented to the audience as a totally new original but as deriving from another work which is often identified or well known to the audience of the parody or caricature. Secondly, there is very little likelihood that the light-hearted work would compete in the market place with the work on which it is based. Both works would have widely different stylistic appeals. By and large, the court, in balancing the satirical value of the light-hearted work against the copyright interest of the owner of the original work, would be mindful of any threat that strict enforcement of the copyright claims may pose to the art of creating humour. The court may disallow a parody, pastiche or caricature where the defendant engages in complete or almost verbatim copying,
EPHEMERAL USE OF ARTISTIC WORKS This category includes the ephemeral or incidental use of artistic works, i.e. where the work in question is not the primary object of the use. According to the English Court of Appeal in The Football Association Premier League Ltd. v. Panini UK Ltd., T he word ‘incidental or what constitutes an “incidental” or “incidental” inclusion depends on the circumstances of the case. In that case, the inclusion of a photograph of footballers wearing shirts bearing badges and logos was held not to be incidental as it was essential to the object for which the image was created. An incidental inclusion does not mean only unintentional or non- deliberate but it suggests casual, inessential, subordinate or background. An incidental inclusion, does not mean only unintentional or non – deliberate. It was held that in order to test if the use of a work in another was incidental, the question would be “why the one had been included in the other, considering the commercial as well as any artistic reason.”
USE FOR EDUCATIONAL PURPOSES The Act makes special exceptions for certain uses which are educational or instructional in nature. These are: Collection of short excerpts of work The Act permits the inclusion of a copyright work in a collection of literary or musical works subject to the condition that the inclusion should not include more than two excerpts from the work. The collection must also bear a statement that it is designed for educational use and include an acknowledgment of the title and authorship of the work. Approved educational broadcasts The broadcasting of a work is allowed if the broadcast is approved by the broadcasting authority as an educational broadcast.
USE IN EDUCATIONAL INSTITUTIONS Any use made of a work in an approved educational institution for the educational purpose of the institution is free from copyright control. This exception is subject to the condition that the resultant work must be destroyed before the end of the prescribed period to be made by the Minister, or in the absence of a prescribed period, within 12 months after it was made. No period has been prescribed under this paragraph.
USE FOR LITERARY ENJOYMENT AND DOCUMENTATION The exceptions under this head are aimed at the normal non-prejudicial enjoyment of copyright works by members of the society. These exceptions include reading or recitation of reasonable extracts from a literary work, use by Government public libraries and non- commercial documentation centres, reproduction of archival materials, copying by libraries and reproduction of unpublished works for purposes of research or private study as well as the reproduction of published works on Braille for the use of the blind.
READING OR RECITATION OF REASONABLE EXTRACTS The reading or recitation in public or in a broadcast of any reasonable extract from a published literary work falls within the exceptions if the reading or recitation is accompanied by sufficient acknowledgement and is not for commercial purposes.
USE BY GOVERNMENT, PUBLIC LIBRARIES AND NON-COMMERCIAL DOCUMENTATION CENTRES The Act exempts any use made of a work by or under the direction or control of the Government, or by such public libraries, non-commercial documentation centres and scientific or other institutions as may be prescribed. Also excluded are uses in the public interest, where no revenue is derived therefrom and no admission fee is charged for the communication of the work to the public.
ARCHIVAL USE Also exempted from copyright control is the making or supply of a reproduction of a copyright work or reproduction of any such work which is in the National Archives or the public records of a state, being records for the storage or custody of which provision is made by law, pursuant to that Act or law.
LIBRARY COPYING The making of not more than 3 copies of a book (including a pamphlet,sheet music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library is allowed if such a book is not available for sale in Nigeria.
REPRODUCTION OF UNPUBLISHED WORKS The reproduction for the purpose of research or private study of an unpublished literary or musical work kept in a library, museum or other institution to which the public has access is permitted. This exception is limited to those unpublished works that are kept in a library, museum or other such institution. The term “research” will have the same meaning as above. It has been suggested that “private study” has restricted meaning and is limited to use by the student himself and does not include circulation of the same materials to other students.
REPRODUCTION ON BRAILLE The Act allows the reproduction of published works in Braille for the exclusive use of the blind and sound recordings made by the institutions or other establishments approved by the Government for the promotion of the welfare of other disabled persons for the exclusive use of such blind or disabled persons.
NEWS AND PUBLIC INTEREST BROADCASTS This set of exceptions relates to the broadcasting of works that have already been made available to the public; news of the day and the communication to the public of a work in places where no admission fees are charged.
BROADCASTING OF WORK ALREADY LAWFULLY AVAILABLE TO THE PUBLIC The Act permits the broadcasting of a work already lawfully made accessible to the public and subject (without prejudice to the other provisions of the Schedule) to the condition that the owner of the broadcasting right in the work will receive a fair compensation determined, in the absence of agreement, by the court.
REPRODUCTION BY A BROADCASTING AUTHORITY The reproduction of a work by or under the direction or control of a broadcasting authority is permitted where the reproduction or any copies thereof is intended exclusively for a lawful broadcast. The law requires that the copies should be destroyed before the end of the period of six months immediately following the making of the reproduction or such longer period as may be agreed between the broadcasting authority and the owner of the relevant part of the copyright in the work. However, any such reproduction that is of exceptional documentary character may be preserved in the archives of the broadcasting authority but must not be used for broadcasting or any other purpose without the consent of the owner of the relevant part of the copyright.
COMMUNICATION BY CLUB FREE OF CHARGE The communication to the public of a work in a place where no admission fee is charged in respect of the communication by any club whose aim is not profit making is exempted from copyright control. Since the Act does not offer a definition, the word “club” would have to be given its ordinary dictionary meaning as an association of people united by a common interest or purpose. The key requirement here is that there must have been no admission fee charged and the aim of the club should not be profit-making. In this context, the court will be concerned with the particular aim of the club and not necessarily the overall “objects” of the entity as outlined in its memorandum of association or incorporation documents. It should be sufficient that the aim of the club at the material time is benevolent or non-profit. For instance, it would not be an infringement if the Red Cross Society performs a musical work in public so long as the public is not charged any admission fee. Whether this exception will apply in the case of a club performing such a work only to its financial members is a different matter.
NEWS OF THE DAY Probably as a confirmation of the general notion that there is no copyright in news, as such, the Act expressly exempts from copyright control, news of the day which is publicly broadcast or publicly communicated by any other means.