Textbooks And Materials Reproduction By Students: The Limitation Of Fair Use Under The Nigerian Intellectual Property Law

By Michael A. Adeniregun

ABSTRACT

Photocopying of textbooks and materials by students especially at the tertiary institutions seems to be the general norms being practiced without due regard to the implication of the law. Students most times photocopy part of a textbook or the whole textbook when necessary for educational purposes. The copyright law gives the author of a copyrighted work protection from the reproduction of his work without his consent. However, the law does not confer on the owner the absolute right on his work so as to make it accessible for educational and informational purposes. The purpose of this research paper is to identify the limitations to the “fair use” of the copyrighted works and the rate at which students reproduce such works.

Keywords: Photocopying, Copyright law, Textbooks, Fair use, Students

INTRODUCTION

Generally, works which serves educational, entertainment, artistic or informational purposes are classified under intellectual property law. For instance, a textbook written and produced by a Professor cannot be reproduced by another person or even by a student without the prior consent of the Professor. This privilege given to the Professor is called Copyright protection. Copyright is a branch of intellectual property law that bestows on the owner the legal right to exclusively produce and reproduce his work. However, where it is to be reproduced by another person, consent of the owner must have been given. The primary purpose of Copyright under the law is to protect from annexation the fruits of a person’s work.[1]

However, the law governing copyright protection in Nigeria is the Copyright Act[2], and it specifies the works eligible for copyright to include literary works, musical works, artistic works, cinematograph works, sound recording, and broadcasts[3]. Textbooks and materials can be classified under the literary works.

PHOTOCOPYING AS A MEANS OF REPRODUCTION

Generally, reproduction is an exclusive right granted to a copyright owner.[4] Photocopying which is a process of reproduction is the reprographic reproduction of copies of the original works. One of the major means of violating an author’s right is by casual photocopying of his works mostly practiced by students due to high cost of textbooks and materials. Copyright violation through photocopying has been an aged long problem facing authors and publishers in Nigerian institutions, organizations and parastatal thus renders the efforts of the authors fruitless. A survey carried out by the Reproduction Right Society of Nigeria (REPRONIG)[5] across selected Nigerian universities shows that an average student makes approximately 1.52644 copies in one session, of which 1,239 copies are protected by copyright law. This translates to a whopping 620 million copies of copyright protected materials in one session considering tertiary institutions in Nigeria[6].

However, the law is settled that Works of others should not be used without their permission unless the use has been authorized by the copyright owner or the use is for educational purposes. The essence of this is because the constitution recognizes the fact that for the purpose of eradicating illiteracy and also to guarantee the freedom of expression, the doctrine of “fair use” would be a vital instrument in balancing the rights of copyright owners and the users. The “fair use/dealing” caveat is used to determine whether the use of a copyrighted work by another is fair enough under the law.

THE LIMITATION TO THE DOCTRINE OF FAIR USE AS AGAINST TEXTBOOKS REPRODUCTION

Interestingly, Section 5 (1) of the Copyright Act confers the author the exclusive right of reproduction and enjoyment of his copyrighted works. However, it is trite that where there is a general rule there is an exception. The exceptions to the general rule of copyright protection is enshrined under the second schedule to the Copyright Act. The right of reproduction of a part of a textbook by students is what is known as the “fair use”.

It is important to state that there is no place in the Act that gave an express definition of fair use. Despite the lack of precise legislative definition and formulation of fair use, the provisions under the second schedule[7] can serve as a guiding principle to determine what fair use looks like. As stated earlier that the essence of fair use is to justify the intention of the constitution. The 1999 constitution[8] by virtue of Section 18 provides that government shall strive to eradicate illiteracy and to reasonably make educational resources available for public use. Undoubtedly, students photocopied textbooks for educational purposes but the question is that can a whole Law of Evidence in Nigeria written by Chris C. Wigwe be photocopied by students under the privilege of the fair use caveat? In other words, is it correct to say that the photocopying of a whole textbook fall under the exceptions to the general rule?

The answer would be addressed subsequently because the limitation imposed by the Act to supplement the intention of the constitution cannot be overlooked and what constitute a fair use can only be determined by the circumstances of the case or the degree upon which the textbook was reproduced. As a matter of fact, if such book was to be given free access by students without fair dealing, it would drastically affect the financial status of the owner. It is funny enough that the government will not pay for the loss even though the intention of the government is to eradicate illiteracy and promote right to information. The law specifically states that acts done by way of fair dealing for the purposes of research, private use, criticism, or review of the reporting of current events are exempted from copyright control[9]. It is however pertinent to state that what constitute research, private use, criticism, or review is not defined in the whole 53 sections of the Act nor in the schedule sections. As a result, courts over the years have been faced with the big task of underlying what constitute fair use and its scope. Thus in DODSLEY V. KINNERSLEY[10], the court held that no certain line can be drawn to distinguish a fair use of a copyrighted property, it however depends on the circumstances of the case. Guiding principles have been laid down to help assists litigants determine the scope of fair use and in order to achieve the true intention of fair use doctrine. Three of the principles would be discussed below:

1. Purpose: The purpose of reproduction of the textbook that is, whether the use is of commercial nature or is for nonprofit educational purposes i.e for research, criticism, informational or educational purpose or public use. The purpose must be one that is fair even to the author in the ambit of law and fairness. The logic behind the doctrine of fair dealing is to increase reasonable access to educational and informational purposes. It is however a violation if such textbook is reproduced by a lecturer and sold out to students without the approval of the author.
2. Amount: The amount and substantiality of the portion of the textbooks copied is another important factor to be considered in determining the scope and limitation to the doctrine of fair use. Photocopy of textbooks by students must generally be limited to brief excerpts from longer books. For instance, it is unreasonable to photocopy the whole Law of Evidence in Nigeria written by Chris C. Wigwe. Such is a violation of the fair use doctrine and the author’s right.
3. Effect: The effect of the use on the Market for the original is one of the guiding principles to consider whether such reproduction falls under the ambit of fair use. The user must at this point consider whether the reproduction injures the market or sale of the copyrighted book.[11] The original source of the book must however be cited for informational purpose.

Fair use can be used as a defence by the user when faced with the violation of copyrighted works. It is important to restate that a whole textbook should never be photocopied by students. This is a violation of the copyright because the protection does not cover an extensive reproduction of textbooks.

CONCLUSION/RECOMMENDATION

Apart from the purpose of studying, the doctrine of fair use is important, because new works are expected to derive from existing works, as it is impractical to make research in a field of knowledge without recourse to what has been done in that field of knowledge before the current research. The aim of copyright is to protect the result of intellectual creativity and innovation. A total restriction will drastically affect the growth of the country because there would be automatically a total restriction from educational and informational resources which will defeat the objective of the government as enshrined in the constitution. In tertiary institutions students at some point photocopy a whole textbook, although this is a violation but government should be swift in building libraries at various faculties for easy access. Free university education is not realistic in Nigeria even the constitution made it non justiciable but the government should not relax on this notion. There are other things that can be done to supplement the students’ education, one of which is building libraries in various faculties.

Qualifications

This article is written by Michael A. Adeniregun, a 400 level Student, Faculty of Law, Lagos State University.

This article is provided for educational and informational purposes only. The contents herein are meant for the general information and do not amount to legal advice. Further enquiries be made to adesoji.mikky@gmail.com

 REFERENCE

[1] Babafemi, F. O. (2007) Intellectual property: the law and practice of copyright, trademarks, patents and industrial design in Nigeria. Ibadan, Justinian Books Limited.

[2] LFN 2010

[3] Section 1(1) Copyright Act, LFN 2010

[4] Section 6 Copyright Act, LFN 2010

[5]  REPRONIG (2004). Copyright Administration in Nigeria, Ibadan, Reproduction Right Society of Nigeria

[6] A Violation of Copyright Law through Photocopying in Tertiary Institution in Delta State: Case Study of Delta State University Abraka– pdf Journal of Education and Practice, Vol.5, No.30, 2014.

[7] Ibid

[8] 1999 Constitution of the Federal Republic of Nigeria

[9] Second Schedule to the Copyright Act, LFN 2010

[10] 27 Eng. Rep. 270 – 1761

[11] http://www.lib.uchicago.edu/copyrightinfo/fairuse.html