Modifications To Fair Dealing And Other Exceptions Under The New Copyright Act

• Published date: 02 April 2024
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Banwo & Ighodalo
• Author: Femi Olubanwo, Olumide Osundolire and Kelvin Isibor

On April 1, 2023, President Muhammadu Buhari signed into law the Copyright Act of 2022 (the "New Act"). The New Act makes a number of changes to Nigeria's copyright law, the most notable of which includes the modifications to the exceptions to copyright infringement.

Part II¹ of the New Act expands on the exceptions set forth in the Second Schedule of the Copyright Act of 2004 (the "Repealed Act"). The Repealed Act provided for certain uses of copyrighted works without the permission of the copyright holder, in specific instances. However, in addition to the cases contained in the Repealed Act, the New Act makes further modifications as discussed below.

Expansion of Use of Copyrighted works under Fair Dealing

The New Act adopts the fair use doctrine from the United States copyright law which allows for a wider range of use of copyrighted works without permission. It provides for four factors which are to be considered in determining whether the particular use of a copyrighted work is fair. In determining whether the use of a work in any given case amounts to fair dealing², the New Act stipulates that the factors to be considered shall include:³

a. The purpose and character of its usage;

b. The nature of the copyrighted work;

c. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

d. The effect of the use on the potential market or value of the copyrighted work.

It therefore follows that any unpermitted reproduction, publication, performance, adaptation or distribution of a copyrighted work may amount to fair dealing, if upon consideration of the aforementioned factors, it is determined that such infringing actions are fair.

Acts for the purposes of instruction or examination, and acts by educational institutions

Section 21 of the New Act provides for certain exemptions to copyright infringement in relation to acts for the purposes of instruction or examination and further stipulates that copyright in a work is not infringed by anything done for the purposes of setting or answering examination questions.⁴ Additionally, in the absence of a licensing scheme, the recording of a broadcast or cable programme or a copy of such a recording by or on behalf of an educational establishment for educational purposes of that establishment shall not infringe the copyright in the broadcast or cable programme or in any work included in it.⁵ The exceptions granted by the New Act in relation to educational purposes, also...