infoJustice

Jonathan Band

Nigerian President Muhammadu Buhari has assented to a new copyright act that updates the country’s exceptions and limitations for the digital environment. Most significantly, the act replaces a closed fair dealing provision based on the English copyright law with an open provision modeled on the U.S. Copyright Act’s fair use right. The adoption of an open fair dealing provision by Africa’s largest producer of copyrighted material should put to rest arguments elsewhere on the continent that open exceptions are inimical to copyright industries.

The old law permitted the use of a work “by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events….”.[1] In contrast, section 20(1)(a) of the new law permits the use of a work “by way of fair dealing for purposes such as” private use, etc. By making clear that the list of permitted purposes are only examples, the provision is more flexible and adaptable to new uses enabled by digital technology.

Additionally, the new law contains four factors a court is to consider “in determining whether the use of a work in any particular case is fair dealing.” Those four factors—the purpose and character of its usage; the nature of the work, the amount and substantiality of the portion used in relation to the work as a whole; and the effect of the use upon the potential market or value of the work—are borrowed from the fair use right in section 107 of the U.S. Copyright Act.[2] 

The new act contains several other noteworthy provisions:

• A contractual override provision that voids “any contractual term which purports to restrict or prevent the doing of any act permitted” under the Act (Section 20(3));
• An expanded exception for archives, libraries, museums, and galleries allowing the making and distribution of copies as part of their ordinary activities, including for purposes of back-up, preservation, and replacement (Section 25);
• An expanded exception for people with print disabilities, consistent with the requirements of the Marrakesh Treaty (Section 26);
• Expanded exceptions for purposes of education (Sections 21-24);
• An exception for transient and incidental copies which are integral and essential parts of a technological process (Section 20(1)(l));
• An exception for the use and archiving of computer programs (Section20(2));
• The new provision prohibiting the circumvention of technological protection measures specifies that it “shall not affect the exercise of any exception provided in this Bill as it relates to the work in respect of which the technological protection measure is applied (section 50(7));
• A safe harbor for online service providers that comply with a notice and takedown regime similar to that of the U.S. Digital Millennium Copyright Act(Part VII);
• Establishment of compulsory licenses for translations for purposes of research, scholarship or teaching; for reproduction of works not sold in Nigeria and necessary for instructional activities; and for the purpose of rectifying the abuse of a dominant market position or to promote public interest (Section 31-35).

Importantly, the bill states in Section 1 that its objectives are both to “protect the right of authors to ensure just rewards and recognition for their intellectual efforts” and to “provide appropriate limitations and exceptions to guarantee access to creative works.” Thus, user access is given the same weight as the rights of the authors.

The expansion of the fair dealing provision from a closed list of purposes to an open one has proved very controversial in South Africa, where President Ramaphosa sent the Copyright Amendment Bill back to Parliament after passage. Both domestic and foreign copyright interests argued that an open provision would adversely affect the creative sector in South Africa. Supporters of the open provision responded that many countries with thriving industries dependent on copyright, including the United States, Singapore, Korea, and Israel, have open and flexible copyright exceptions. Indeed, such exceptions have allowed these countries to excel in digital technologies. (For example, the Israel Ministry of Justice recently issued an opinion finding that its fair use exception would allow the massive ingestion of copyrighted works necessary for machine learning.)

Notwithstanding the fierce opposition to the open provision in South Africa, the similar provision in the Nigerian act drew little public opposition from the copyright industries. The adoption of an open fair dealing provision by Africa’s largest producer of films and music should encourage other countries in Africa to likewise adopt open copyright exceptions.

[1] Nigerian Copyright Act (Cap. 68, Laws of the Federation of Nigeria, 1990 as amended by the Copyright Amendment Decree No. 98 of 1992 and the Copyright (Amendment) Decree 1999). Second Schedule.

[2] United States Copyright Act of 1976. U.S. Code, Title 17. § 107.