Felicia Boyd, at an IP/ADR conference in Lagos late last year, mentioned the “Dancing Baby Case” [Lenz v. Universal Music Group (UMG)] which reminded me of an earlier discussion I had with a friend of mine on the subjective nature of the Fair Use doctrine using the same case.
Lenz, the plaintiff, uploaded to YouTube, a 29-second video of her baby dancing to Prince’s “Let’s Go Crazy”. YouTube subsequently took it down after being notified by UMG – administrator of Prince’s records- of a copyright infringement, based on the provisions of the Digital Millennium Copyright Act(DMCA). Claiming the defence of Fair Use, Lenz counter-notified YouTube and the video was re-posted. She, thereafter, sued UMG for misrepresentation under S512 of the DMCA seeking a declaration that the song was non-infringing. In its judgement, the 9th Circuit Court of Appeal held that copyright holders must consider whether there was Fair Use before removing any content from the internet.
The decision brings to the fore the conflict of balancing the interest of the copyright holder to benefit from his work and that of the public to enjoy his work. The defence of Fair Use, an exception to copyright infringement, seeks to achieve this balance by protecting the rights of the user.
This is especially key as focus is more on the protection of the copyright holder.
Fair Use in Nigerian Law
Lord Denning in the Hubbard v Vosper case[i], posited that Fair Use as a judge-made concept is difficult to define. For the purpose of this paper, Fair Use (Fair Dealing in English Common Law Jurisdictions like Nigeria) will be defined as the copying of copyrighted material, done for a “limited” or “transformative” purpose such as to comment upon, criticise or parody, without the express permission of the owner.
The scope of the doctrine is a question of facts. Thus, there is no strict rule to the doctrine. Depicting the difficulty in defining the doctrine, the copyright in the second schedule of the Nigerian Copyright Act merely mentions Fair Use as an exception to copyright infringement for purposes of research, private use, criticism, or review or the reporting of current events so far as the author and the title of the work is acknowledged.
Unlike S107 of DMCA, the Nigerian Copyright Act is mute on the conditions for granting Fair Use as a defence. Therefore, to determine the elements of Fair Use, one has to observe the decision of the courts. Taking into consideration the rules laid down in respect of determining Fair Dealing in Hubbard v Vosper and Ashdown v Telegraph Group[ii], the following may be considered:
- The number and extent of quotations and extracts used. The amount of work lifted from the copyrighted work must not have been unreasonably and unfairly lifted. Here the court will look at the quantity of the work lifted.
- The work lifted must not be such that will cause economic harm or constitute commercial competition to the author. In essence, the work copied must not affect the pecuniary interest of the owner negatively.
- The importance of the work used may also be considered. The copied portion must not be such that is so integral to the copyrighted work that it kills the work’s importance.
- The Purpose of the use is important. The court may not favour the defence where the work is used for commercial gain without the consent of the copyright owner. Many a times, fair use is allowed where the use is educational or where it serves public interest so far the user derives no commercial revenue from it.
In summary, if the Dancing Baby Case was to be judged in the light of Nigerian law, the courts may have arrived at a similar decision. Finally, a notable mention of S1(4) of the Act which provides that a work shall not be ineligible for copyright by reason only that making of the work or the doing of any act in relation to the work involved an infringement of copyright in some other work may be adduced in defence of Lenz. However such infringement mentioned in S1(4) must be infinitesimal. The justification of the defence of fair use may be found in S18 of the 1999 Nigerian Constitution which provides for educational objectives, and S39(1) providing for freedom of expression.
The development of the doctrine is encumbered by the failure of the Copyright Act to explicitly define and delineate the grounds for the allowance of the defence. This inadequacy may lead to foggy decisions by the courts.
There is a need to urgently review the Nigerian Copyright Law in relation to this doctrine especially in this digital age.
- “The Defence of Fair Dealing in Nigerian Copyright Law: Tradeoffs between Owner and User” – Johnson Bryant.
- “Fair Dealing in the use of Copyright Material” – Kaine Agary.
- “Fair Use and Crying Foul under the DMCA: the Dancing Baby Case Continues” – Lauren Emerson, Baker Botts LLP.
Graduate of the Faculty of Law, Obafemi Awolowo University, Ile-Ife.
[i] (1972) 2 Q.B. 84
[ii] (2001) All ER 666
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