The internet revolution, new media interaction and online journalism has made it next to impossible to create relevant content without using other people’s Copyrighted works. If done in the proper way, one can use Copyrighted contents (through framing, embedding, hyperlinking, in-linking) without necessarily asking for permission from the owner of the work. However, the safest Intellectual Property path to work is to seek prior consent of the creator of a Copyrighted work before using such work or read the Terms of Service of the creator (where applicable) to be acquainted with the Copyright policy.
Ordinarily, the use of a Copyrighted Works without the prior consent of the owner of such work is an infringement but there are exceptions to this general principle of Law and this exception is referred to as fair use or fair dealing. According to Lien Verbauwhede, Consultant, SMEs Division of the World Intellectual Property Organisation (WIPO),“Fair use” or “fair dealing” is a concept that is applied in common law countries, such as the UK, USA, Canada, Australia, India and Nigeria. It recognizes that certain types of use of other people’s copyright-protected works do not require the copyright owner’s authorization. It is presumed that the use is sufficiently minimal that it will not unreasonably interfere with the copyright owner’s exclusive rights to reproduce and otherwise use the work.
An example of where the Law permits a work to be used under the Copyright Act without the permission of the creator is when such use is for the purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast. It is noteworthy that Law frowns at substantiality of the use in appropriate cases but this is not the only factor that sums up to infringement of Copyright.
In the Nigerian context, exception to Copyright (the doctrine of fair dealing) is provided for under the second schedule to the Copyright Act Cap 28, Laws of the Federation of Nigeria 1990, but this Law will only apply if Nigerian courts has jurisdiction on any particular Copyright case. The issue of fair use (or fair dealing as it is known under the Nigerian Law) is one that is decided on a case-by-case basis not on a rigid set of rules. The position of the Law on fair use is similar in most common law jurisdictions. The US Copyright Law makes provisions that will help the court and help you decide whether the use of a work falls under fair use. So before you decide to use that Copyrighted work, you can know to a degree whether such use is fair use or not if you can answer these questions:
1. What is the purpose and character of the use?
2. Is the use is of a commercial nature or is for nonprofit educational purposes?
3. What is the nature of the copyrighted work?
4. What is the amount and substantiality of the portion used in relation to the copyrighted
work as a whole?
5. What is the effect of the use upon the potential market for or value of the copyrighted
The good thing about all these is that when you are not sure about the state of a work, you can always talk to your Lawyer. If you have other fair use situations, kindly share your thoughts
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