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In my recent post, Justification for Copyright Protection- Is everything free online?, I pointed out that “in the information age where ideas like open source have technologically democratized access to information by providing free and unrestricted access for end users, it is becoming increasingly difficult for copyright owners to have exclusive control over their works. In the world of intellectual property, specifically copyright protection, fair use is becoming the rule and not the exception.”
Fair use is a principle of copyright law based on the belief that the public is entitled to use certain parts of copyrighted materials freely. For example, a research student quotes a portion of a book written by another author without seeking the author’s permission. The student’s act would not be copyright infringement if he or she acknowledged the author of the work. Acknowledgment is sufficient. This makes it fair use.
Fair use operates as a defence against a claim of copyright infringement. If it is not considered or adjudged fair use, upon any copyright action, liability to damages would arise against the infringing party.
The fair-use principle can be very tricky when it comes to application though. The question is often whether your use qualifies as fair use as not to be considered an infringement of the subsisting copyright in the work.
Fair Use under the Nigerian Copyright Act
Section 1 of the Copyright Act makes the following works eligible for copyright protection:
a) literary works;
b) musical works;
c) artistic works;
d) cinematograph works;
e) sound recording; and
The unauthorized use or reproduction of any of the works above amounts to copyright infringement. Under section 15(1) of the Copyright Act, copyright infringement is actionable at the copyright owner’s suit (or any assinee or exclusive licensee) in the Federal High Court. If the action succeeds, the court may grant reliefs such as damages, injunction, acount of profits.
But section 5 of the Copyright Act recognizes certain exceptions ‘by way of fair dealing’. When a copyrighted work is used or reproduced without authorization, but the use and reproduction is for criticism or review, private use, reporting current events, and research purposes, it is fair dealing.
Fair dealing under the Copyright also means fair use. These fair-use inspired exceptions are specifically set out under the 2nd Schedule to the Act. They apply to the 6 categories of work protected under section 1 of the Copyright Act. Paragraphs (a)-(s) of the 2nd Schedule to the Copyright Act sets out these exceptions.
Setting out the exceptions may be dangerous though. This is because of the inherently expansive meaning of fair use. It is hardly exhaustive. This is why general principles should be prefererred for their adequacy. For sufficency, the spirit and letters of the law are best brought to life through judicial decisions based on the circumstances of each case.
Fair Use as Exception to Copyright Infringements
Fair use applies as an exception to the general rule of copyright. According to Odion and Ogba, fair use “excuses act [sic] that ordinarily would amount to infringement but are allowed because they do not hurt the pecuniary interest of the copyright owner.” In determining if any use or reprodcution of a copyrighted work is fair use, below are 4 factors courts often consider:
- The purpose and character of the use- Was the use for commercial or nonprofit educational purposes?
- The nature of the copyrighted work- Was the material used factual or creative; published or unpublished?
- The substantiality of the portion used in relation to the copyrighted work- Was the copyrighted work slavishly or unreasonably copied?
- The effect the use has or potentially has on the copyright owner’s potential market- Does it threaten the copyright owner’s pecuniary interest?
These factors are based on the guiding principles provided under section 107 of the Copyright Act of the United States and most decided cases. In these cases, courts have continued to appraoch fair-use cases wholistically, using what you might call the fair-use test.
1. Purpose and character of use
Firstly, the purpose and character of the use of copyrighted work is one of the most important guiding principles for determining whether the use of a copyrighted work amounts to fair dealing or copyright infringement. One strong purpose that excuses copyright infringement is educational purpose.
Using copyrighted works for educational purposes in schools and educational institutions are permitted under copyright law. The only qualification is that the copyright owner must be acknowledged. In the evaluation of the purpose and character of the use, the cases tend to suggest that courts favour non-profit educational uses over commercial ones. But generally, if the application of the copyrighted work is educational, its commercial use would be considered as fair use. In University of London Press Ltd v University Tutorial Press Ltd, a locus classicus, the Defendant copied and published the Plaintiff’s published past examination papers for students. Though the Defendant’s purpose was educational, the Chancery Division, per Peterson J, dedcided that the Defendant’s unauthorized use amounted to copyright infringement because they were not just produced for public use but also for commercial purpose.
Libraries and archives also provide educational and cultural value to the society. Under the Nigeria Copyright Act for example, a person in charge of a public library is permitted to copy or reproduce a copyrighted work and make it available to the library users if the work is not available for sale to the public. Paragraph (q) under the 2nd Schedule to the Copyright Act limits the number of coopies to 3..
Subsumed under educational purpose is the use of the work for research or private study. Under the Copyright Act, paragraph (r) of the 2nd Schedule to the Act limits this exception to an “unpublished literary or musical work kept in a library, museum or other institutions to which the public has access”. A literal interpretation of this paragraph suggests that if the work is published, the research and private-study exception would no longer apply. Is this the intent and purpose of the drafters? Based on the principle applied in University of London Press, I don’t think so. In 1992, the United States Congress amended the country’s Copyright Act to add that fair use may apply to unpublished works. I think both published and unpublished works should be eligible under the Nigeria Copyright Act as well.
2. Nature of the copyrighted work
Secondly, is the material used factual or creative; published or unpublished? Fiction and unpublished works often attract stricter copyright protection. This is why I agree with Bruce Lehman when he wrote that the nature of work “weighs in the copyright owner’s favor when works of fiction and unpublished works are copied and in the defendant’s favour when factual works and published works are copied.”
3. The substantiality of the portion used in relation to the copyrighted work
Thirdly, was the copyrighted work slavishly or unreasonably copied? Here, a court determines the quantity of the work used. It also determines whether the use is qualitative.
If the use is not quantitatively substantial, but takes out the heart of the work, the court would most likely shoot down any fair-use defence.
4. The economic effect of the use on the copyright owner
If the use has or potentially has any econnomic efffect on the copyright owner’s potential market, the court would way this factor against the user. This is because any economic effect, real or potential, affects the copyright owner’s pecuniary interest. So threat is sufficient.
In Stewart v Abend, the Plaintiff authored a short story. The Defendant adapted the story to a movie and performed it. The Defendant’s unauthrorized performance badly harmed the Plaintiff’s economic interest in the short story. The Plaintiff sued. The court decided in Plaintiff’s favour.
Some other important factors
The public-interest principle is another consideration in determining whether the use of a copyrighted work amounts to fair use or copryright infringement. Use or reproduction of the copyrighted work must serve public interest or public good.
Public enlightenment serves public interest. But there is one crucial qualification- the user must not derive any revenue from the public activity. For example, members of the public must be eligible to participate in a public performance or exhibition without paying any fees. Once the user charges a fee, this defeats the public-interest exception since a commercial element has been introduced to it. Potentially, this affects the copyright owner’s pecuniary interest. The use becomes unfair.
Transformation of copyright work
The reproduction of a copyright work, but transformed into a new product is one of the exceptions to copyright infringement. A good example is Braille- same book; different communication tool; different end-users- blind persons. Acknowledgment of the author is often adequate. As a practicing lawyer though, I would strongly advise you contact the book publisher or author before reproducing the work, your good intentions regardless.
Fair Use and the Way Forward
Fair use has been expanding its boundaries through judicial decisions for some 200 years. It will continue to do so through the ages.
In today’s Internet age, the fair-use principle will even get more indefinite. The line between fair use and copyright infringement will continue to get thinner. So the right approach is not to fight it, but accomodate it within the framework of copyright laws.
From a copyright owner’s angle, pecuniary interest should continue to be the overriding consideration when determining fair-use cases. And from the copyright user’s angle, access to information for the advancement of knowledge should be considered as well. It is the art and science of finding a balance between these 2 competiting interests that makes intellectual property grow with the times.
*The post was updated on 17 October 2015 to improve readability and include more judicial authorities.
 National Rifle Association v Handgun Control Federation  15 F.3d 559, 562 (6th Circuit) and New Era Publications International ApS v Carol Publishing Group  904 F.2d 152, 157 (2nd Circuit) respectively.
 Bruce A Allen, Intellectual Property and the National Information Infrastructure- The Report of the Working Group of Intellectual Property Rights, Information Infrastructure Task Force, September 1995, 78
 Melville B Nimmer, ‘Nimmer on Copyright: A Treatise on the Law of Literary, Musical and Artistic Property, and the Protection of Ideas by Melville B. Nimmer’, Stanford Law Review, July 1964, Volume 16, No. 4, 1146-1150