[52]. STATUTORY EXCEPTIONS TO COPYRIGHT INFRINGEMENT: A PROTECTION OF FUNDAMENTAL RIGHTS OF THE CITIZENS.

By: Oriolowo Okikiola Muheen.

[52.1]. Introduction:

Just like the birth of the Siamese twins, the discovery of intellectual property has brought a new dimension to the legal arena. One of the branches of this law is Copyright; which follows it as rhythm follows poems. The term copyright, according to Blacks Law Dictionary, Ninth edition, is defined "as a right to the author or originator of certain literary or artistic productions, whereby the creator is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the literary or artistic works and publishing or selling them." It is crystal clear that, copyright covers a wide range of intellectual efforts, such as: literary, musical and artistic works, voice recordings, cinematography films and broadcast. Recently, there has been a rolling billow of infringement on this right, owing to the fast-paced technological advancement and expertise. It is in this vain, this write-up will address the issue of copyright infringement; a little touch on the position of law on copyright infringement; and importantly statutory exceptions of copyright infringement. To begin with, what is copyright infringement?

[52.2]. Definition of copyright infringement:

Section 16(2) of the Copyright, Designs And Patents Act 1988 (CDPA), 1988 provides that 'Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.' Similarly, Section 36(1) of the Copyright Act, 2022 also provides that, copyright is infringed by any person who without license or authorization of the owner of the copyright:

(a) does, or cause any other person to do an act, the doing of which is
controlled by copyright;

(b) imports into Nigeria, otherwise than for his private or domestic use, any
article in respect of which copyright is infringed under paragraph (a) of this
subsection;
(c) exhibits in public any article in respect of which copyright is infringed
under paragraph (a) of this subsection;
(d) distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a)of this subsection;

(e) makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;
(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to
be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;

(g) performs or cause to be performed for the purposes of trade or business
or as supporting facility to a trade or business or as supporting facility to a trade
or business, any work in which copyright subsists

[52.3] What constitutes copyright infringement - Whether a garment can constitute copyright infringement?

Before addressing the fulcrum of this question, it is necessary to reiterate that different acts may constitute copyright infringement, as long as they are unauthorized publication or copy of an intellectual work, such as: literary works, artistic or musical works, recordings, cinematography films, etc. Now,to the question, whether a garment can constitute copyright infringement?

For this to be answered without an iota doubt, a scenario needs to be painted. Let’s take for instance, if one Mrs Quince and one Mrs Bottom are working on designing a garment. Mrs Quince showed Mrs Bottom a sketch of dress that suits the new trends. Mrs Bottom, a lover of this sketch, made a suit from the sketch shown to her. Mrs Quince angered by this, filed a suit for copyright infringement.
Going with flow of the definition of copyright, which one of its keywords is "artistic works". It is evident that Mrs Bottom stole the idea of Mrs Quince’s sketch to make the suit. By so doing, Mrs Bottom breached the trust of Mrs Quince, and as well infringed on the intellectual effort of Mrs Quince. It is the safe to say Mrs Bottom had committed what may be regarded as copyright infringement. Lord Fox, in the locus classicus, BERNSTEIN LTD v SYDNEY MURRAY LTD, using a sketch of dress or garment that originally belongs to others amount to copyright infringement. Similar decisions were held, in King Features Syndicate v O&M Kleeman Ltd (1941) AC 417, Peter Obe v Grapevine Communications Ltd(2003-2007) 5 LPR 354, amongst others. Generally, Copyright need not to be registered before it is claimed, however, by the copyright Act of Nigeria, it has to be submitted.

[52.4]. Statutory Exceptions to copyright infringement

Having emphatically stated above that the law frowns vehemently at infringement on copyright. It is however pertinent to note the various stipulations of the act in this stare and as well to prevent copyright owners from infringing on the fundamental rights of citizenry. Copyright infringement is then defensible on these accounts:

I. Acts termed as fair dealings: Copyright Act, 2022 by virtue of S. 20, categorized certain infringement as fair dealings. fair dealings are non-commercial dealings or private study, such as: private research, evaluative criticism, ethical review, purposely to commend the copyright owner or author. This was also described by Lord Denning, in Hubbard v Vosper, as "to take long extract and attach short comments may be unfair, while to take a short extracts and add long comments may be fair enough."

II. Acts performed for the purpose of instruction or examination: In the cause of studying or preparing for examinations, students go out of lengths from one sources to another, in order to ace a particular course of study, especially courses without detailed instructional materials. S. 21 and 22 of the copyright Act, 2022, have paved way for lawful copying and recording of works; provided the copying is done by a person giving or receiving instruction and is not aimed at reproducing or reprinting. This dealing is not without exception (S. 23 and 24, copyright Act 2022)

III. Infringement by museum, archives, libraries and galleries: where any of these make, distribute and procure works protected by copyright for the purpose of non-profit able, otherwise non-commercial dealings, it shall be said not to have infringed upon such works. This exegesis is all on force with S.25 of this same Act.

Research has also shown that copyright infringers may also hide under the facade of public interest; if he, in his defence, can successfully balanced the probability that the published information was to save the general public from a epidemic situation. For instance, The court upheld the defence of a copyright infringer, a newspaper editor, in Lion laboratories Ltd v Evas (1984) 2, who published an information about the plaintiff in the light of public interest.

It is noteworthy to state that these statutory exceptions on copyright infringement are to serve as shields to protect the fundamental rights of the citizens, not to throw the efforts of the Copyright Act, CDPA, 1988 and others provisions into empty dustbin, nor render them toothless dogs.

Conclusion

Copyright has been said to one distinct right enjoyed for intellectual efforts displayed in literary works, artistic works, cinematography films and broadcast, to mention a few. However, since the outset of this right, it has been nurturing ludicrous set-backs owing to the lethal weapon of copyright infringement, which has been spreading its fluttering wings over the years. Certain laws like Copyright Act and Copyright, Design and Patents Act, 1988 have been set-aside to miniaturize the ferocious pounce of copyright infringement. In spite of this, the same aforementioned laws stipulated how copyright infringement could be defensible if done for non-commercial research, otherwise regarded as fair dealings, and for the interest of the populace.

Happy Reading…See you next week.