Attribution is not the same as permission to use

Persons operating in the creative space in Nigeria are more aware of their intellectual property rights than ever before. However, there is still a knowledge gap, particularly about what is permitted under “fair dealing” as provided for in Nigerian Copyright law. Several conflicts have played out on social media where right-protected work is used without the permission of the owner and the user feels entitled to such either because the use is not for commercial purposes or they have attributed the work to the owner.

The general scope of copyright protection in Nigeria is provided for in section 5 of the Copyright Act. Generally, copyright-protected work cannot be reproduced, published, performed, distributed, exhibited, copied or adapted, without the express permission of the copyright owner. The exceptions are found in the Second Schedule to the Act. It contains a very extensive list of what acts are exempted from. Because the drafters of the law took the time to itemize these exceptions, a user who wants to use a work without the owner’s permission must make sure to comfortably situate their use in one of those exceptions.

Item (a) of the Second Schedule states that:

The right conferred in respect of a work by section 5 of this Act does not include the right to control—

(a) the doing of any of the acts mentioned in the said section 5 by way of fair dealing for 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 acknowledgment of the title of the work and its authorship, except where the work is incidentally included in a broadcast;…

Other exceptions include:

Use of the work as parody, pastiche or caricature; incidental inclusion in a film or broadcast; inclusion in a film or a broadcast of an artistic work situated in a place where it can be viewed by the public; reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public; the reading or recitation in public or in a broadcast by any person of any reasonable extract from a published literary work if accompanied by a sufficient acknowledgment: Provided that such reading or recitation is not for commercial purpose; the communication to the public of a work, in a place where no admission fee is charged in respect of the communication, by any club whose aim is not profit making;… etc.

The cover art for my novel, Yellow-Yellow, includes an image of a woman. The art was designed by a friend of mine who is a photographer and filmmaker. I gave him a synopsis of the book and left the rest up to him, and he delivered. I loved the first image he sent to me. The model was, in my mind, the perfect actualisation of the main character in my novel. However, a few days later, my excitement was crushed when my friend called to say that the model’s agency refused to grant permission for her image to be used on a book cover. He had to find another model whose image we could use without issue. Luckily, he was able to find one.

I share this to illustrate the point that apart from the fear of copyright infringement, there are other reasons to get permission from the owners of copyright-protected work before you use them (unless the use falls into one of the exceptions). One reason is the existence of contractual obligations. Although my friend was the “author” of the photograph and owned the copyright in the photo, there were contractual obligations between him and the modelling agency, as well as between the model and the agency, that would have been breached if the image was used for my novel. These contractual obligations are not made public and cannot/should not be presumed.

Another reason is reputation management/brand association issues. For example, a person uses a copyright protected photograph/image to advertise their event and feels justified in doing so because they attributed the image to the owner. The problem with this thinking (apart from it being copyright infringement) is that it disregards the copyright owner’s right to choose who and what commercial ventures they associate with. Using the image in that manner can be construed as an endorsement of or involvement in the event by the owner of the copyright protected work.This perception could have a negative impact on current and proposed commercial opportunities for the copyright owner. It could also impact on the public’s perception of copyright owner and their brand.

Seeking permission, preferably in writing, does not necessarily involve costs. A copyright owner may grant permission to another person to reproduce their work for no fee, depending on the use for which permission is sought.

For images, there are enough open-source platforms that carry works that are free for commercial use, and no attribution required. If you do not want to go through the hassle of seeking permission to use someone’s work, or commissioning a photographer to create your own images, these platforms are a good place to start.

Remember, unless your proposed use falls under one of the exceptions provided for in the Copyright Act, your use, without permission, is an infringement. Acknowledgment of or attribution to the owner is not enough. Note that in Nigeria, copyright infringement is a criminal offence punishable by imprisonment.

Culled Punch