Let’s continue our discourse on the justification for copyright protection. In my previous post, we considered if everything was free online. Today’s post would be examining the other justifications for copyright protection.
Natural Justice Principle
The reasoning here is that the fruit of the author’s intellectual sweat must not be seen to be reaped by another, except by authorisation or licence. It is against the principle of natural justice for an infringer to reap from where he has not sown. The judicial recognition of this principle is found in the case of Plateau Publishing House Ltd. v. Adophy, where Uwais JSC, in an action for copyright infringement, said that the court in awarding an account for profit:
“Takes from the wrongdoer all the profit he has made from his piracy and gives them to the person who has been wrong.”
Also, in consistent with the natural justice principle as a basis for copyright, Odunowo J, in Masterpiece Investment Ltd. & Anor. v. Worldwide Business & Ors,while awarding exemplary damages against the defendant for flagrant infringement of the copyright of the author in an article for commercials said:
“On the claim for exemplary or punitive damages, the trend of both judicial and juristic opinion is that the Court may award additional damages for such matters as the author’s reputation or feeling, the vulgarisation of the work, economic loss, unjust enrichment by the Defendant as a result of the act of infringement, the conduct of the Defendant…”
Though similar to the natural justice principle, the moral principle is distinguishable. It is also distinct from the owner’s economic right. Moral rights allow the owner take certain actions to preserve the personal relationship between him and the work as a mother would do to a child, a product of her labour. It is that paternity right of identification to the work which is inherent in the creation of the work. In other words, it is a paternal right that is conferred to the creator of the work and no one else.
This moral right is an inalienable right which prevents other persons from ascribing to themselves the authorship of the work.For example, only Chinua Achebe, the author of the popular African novel, Things Fall Apart,has the moral right to be identified with the book. This is because he has met the criteria for copyright protection as required under the Act.
Section 12 of the Copyright Act 1988 (as amended) recognises this morality principle by providing that the author of a work in which copyright subsists has the right to claim authorship. By virtue of this, the author can object and seek relief in connection with any distortion, mutilation or other modification of, or any other derogatory action in relation to his work, where such action would be prejudicial to his honour and reputation. This has been termed the “paternity right” of the author.
Globally, copyright has been recognised as a legal instrument for the protection of the higher manifestation of human achievement and the promotion of educational, informational and cultural advancement of man. Under the cultural principle, literary, musical and artistic works, and indeed expressions of folklore, are recognised as rich intellectual assets and national heritage.
With copyright, the author does not only enjoy the right to participate in the cultural life of his community by evolving it through his creativity, but also the public has reasonable access to his creations. This access opens up vibrant avenues for cultural growth, exchange and advancement which positively imparts on the society. A good example of this justification for copyright on the basis of cultural principle is the showcase of cultural works in the museum. This, no doubt, promotes tourism, which is one of the fastest growing sources of economic growth in the world today. Use of public libraries for access to books and other useful publications is also an important aspect of the cultural principle.
One significant result of the cultural principle is the concept of free access to works in the public domain. Works are in the public domain if they are not covered by the relevant copyright law, if the duration of copyright has expired or the copyrights are forfeited. One can use any work in the public domain without obtaining permission of the copyright owner.
Fundamental Human Right Principle
Both nationally and internationally, copyright is recognised as a fundamental human right. In Nigeria, section 39(1) of the 1999 Constitution provides for the fundamental right to freedom of expression thus:
Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.
Clearly, to “impart ideas and information” denotes that any person can engage his intellectual mind to produce a work for the purpose of communicating knowledge to the public. Contained in Chapter Four of the Constitution, this right is fundamental and is exercisable and protectable by law. Upon any abuse of this fundamental right, whether by infringement or piracy, it is actionable in the court of law.
At the international level, the recognition of copyright as a fundamental right is evident in the provisions of the Universal Declaration of Copyrights 1948. Article 22 states as follows:
(i) That everyone has the right to freely participate in the cultural parts of a community, to enjoy the parts and share from its scientific advancement;
(ii) Everyone has the right to the protection of the moral and material intent resulting from any scientific or literary productions of which he is the author.
It is against this background showing the justification for copyright protection from the economic, moral cultural and human rights perspective that we will discuss the principle of fair use of copyright works in the ever-evolving law of intellectual property. Keep a date with me on the intellectual property side of the law!
 (1986) 4 NWLR (pt 102) 205
 (1990-1997) 3 IPLR 345
 Supra, at 366
 The right of authorship is however subject to the provisions of sections 10 and 11 of the Copyright Act 1988 Cap. C28 LFN (2004) on “First ownership of copyright” and “Assignment and license” i.e the ownership of the work may be vested in the person or body that commissioned the work, while the authorship resides in the creator of the work; and also the author may choose to assign the work to an exclusive assignee or licensee.
 Achebe C. Things Fall Apart, Ibadan, Heinemann, 1958
 S. 1(2) on originality and fixation; and s. 3(1) precisely paragraph (a) on connection – “copyright by virtue of nationality or domicile”.
 Olatoye D., “Copyright Law and Piracy in Nigeria – Legal Issues in the Information Society” a paper presented at Public Lecture Day of Association of Information Resources Management Students, Babcock University, Ilishan, Ogun State on 7th October, 2009. Accessed at http://www.slideshare.net/dejitoye/copyright-law-piracy-in- nigeria/ on July 4, 2011.
 Boyle J, The Public Domain: Enclosing the Commons of the Mind, Yale University Press, 2008, 38
 In the United States, a work falls into the public domain when the copyright term expires or, in the case of works published between 1923 and 1989, if the work lost copyright protection because the copyright owner neglected to take the necessary steps under then applicable copyright law. Additionally, a copyright owner can directly dedicate a work to the public domain. This is done expressly, through language such as “Everything on this book to which we own copyright is hereby released into the public domain,” or by using the Creative Commons Public Domain Dedication.
 On December 10, 1948, the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights.