PARODY AS A DEFENCE TO COPYRIGHT INFRINGEMENT IN NIGERIA

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IDORENYIN EKPENYONG

 

 

 

 

Idorenyin Ekpenyong

  1. INTRODUCTION

A Copyright is a legal protection granted to creators or originators of creative expressions, whether Literary, Musical, Artistic, or Cinematographic works or an adaptation of any of these eligible works. It confers a special and assignable right to the originator of the work, which though exclusive to the author, is subject to the recognised legal rights of others.

Copyright embodies a delicate duality with the intent to strike a balance between the rights of the creator and the interests of the public. It marks out the right of copyright owners to reap the rewards of their creative labor on one side, while on the other, it acknowledges the right of the copyright user to benefit from the copyrighted work.

Copyright focuses on safeguarding the proprietary rights of copyright owners, along with the protection of their intellectual property and economic interests, often with little attention paid to the fundamental rights of copyright users. It has become apparent that an excessive focus on safeguarding the exclusive rights of copyright owners can potentially undermine the public interest in accessing knowledge and creative works of authorship.

However, the ongoing intellectual debate on copyright has shifted its exclusive focus away from the creators and proprietors of copyright, allowing the public to benefit from the creative works of the latter group without unwarranted barriers caused by monopolistic control. Several factors have contributed to this shift in perspective. The growing desire for knowledge within the public has underscored the pressing need for this transformation. Copyright has progressed beyond merely safeguarding private ownership; it has transformed into a tool for the widespread distribution of information and knowledge.

The rationale behind this is that a great book would lose its value if access to it is so restricted that a significant portion of the community is deprived of the information it contains.

As technology advanced, the recognition of the value in incorporating this exception to the Copyright Act grew, as it has proven to be a means of preventing copyright law from being applied too rigidly and stifling the creativity that copyright law is designed to foster.  Acknowledging the public’s interest in accessing knowledge prompted the creation of exceptions to copyright infringement. These exceptions were designed to offer the public increased access to copyrighted works, provided that such access adheres to specific guiding principles.

Among these exceptions, the defense of parody emerges as perhaps the most significant. It is not only the most frequently invoked defense against copyright infringement but also the most contentious due to its far-reaching scope. Parody appears to encompass most of the other exceptions and more, thanks to its inherent flexibility in interpretation and application.

The key question arising in this context is whether parody, a creative form of expression that frequently entails the transformation and reinterpretation of copyrighted material for humorous, critical, or satirical purposes, can be recognized as a valid defense in copyright infringement cases in Nigeria.

  1. COPYRIGHT INFRINGEMENT IN NIGERIA

Copyright infringement is the use or production of copyright-protected material without the permission of the copyright holder. Copyright infringement means that the rights afforded to the copyright holder, such as the exclusive use of a work for a set period, are being breached by a third party. Thus, a person who intends to use the work of another must obtain authorization by way of assignment or license to escape the penalty of the law. It is pertinent to note that the court vested with the jurisdiction to entertain copyright infringement disputes is the Federal High Court of Nigeria sitting within the jurisdiction of the alleged infringement. There are both civil remedies and criminal liabilities for copyright infringements in Nigeria. The civil remedies available to a person whose copyright has been infringed include: Damages, Injunction, Accounts for profits, Conversion rights, and inspection and seizure order.

Copyright infringement also carries criminal liability with penalties of fines and terms of imprisonment.  The NCC is usually the prosecutor in such action. However, the fact that criminal action has been instituted against the infringer does not deprive the copyright owner of his right to institute a civil action against the infringer.

  1. PARODY AS A DEFENCE IN COPYRIGHT INFRINGEMENT

Parody gives individuals the right to use a substantial amount of copyright-protected material without the consent of the copyright owner for comic effect, as long as their dealing is “fair” and certain criteria concerning attribution are satisfied. The fairness analysis would limit the extent to which parodies are protected, helping to ensure that a balance is maintained between the copyright owner’s rights and the rights of the parodist.

The term “fair” is not defined in the Act. Rather, it is a question of fact which must be determined in each case.  The Act sets out a series of factors in an attempt to provide a “useful analytical framework to govern determinations of fairness in future cases.” These factors include the purpose and character of its usage, nature of the work, amount and substantiality of the portion used about the work as a whole, and effect of the use upon the potential market or value of the work.

The word ‘Parody’ is a term derived from the Greek word “parodia”, and has an ancient heritage. The first reference to parodia is found in Aristotle’s Poetics, where the term was used to refer to a “narrative poem, of moderate length, in the meter and vocabulary of epic poems, but treating a light, satirical, or mock-heroic subject”. Over time, the meaning of parody changed. Later Greek and Roman writers used the term parody “to refer to a more widespread practice of quotation, not necessarily humorous, in which both writers and speakers introduce allusions to previous texts.

The struggle to define parody was not resolved by the Greeks or the Romans. Even today, “the discussion of parody is bedeviled by disputes over definition. As Simon Dentith states:

Because of the antiquity of the word parody (it is one of the small but important groups of literary-critical terms to have descended from the ancient Greeks), because of the range of different practices to which it alludes, and because of differing national usages, no classification can ever hope to be securely held in place.

As the courts are reluctant to define the term parody there is sometimes confusion between the issues of whether a work is a parody, and whether it should be protected by the fair use defence.

Nigerian courts recognize the value of parody and usually protect it under their fair dealing defence. Parodies can either be subject to an infringement action or be protected from a successful action by the copyright owner because of this fair dealing defence. Fair dealing encompasses the reproduction of copyrighted material for a specific and transformative purpose, such as commentary, criticism, or parody of the original work. These activities can be pursued without obtaining permission from the copyright owner, serving as a defence against claims of copyright infringement. It is crucial to emphasize that not all copying for these purposes qualify as parody or fair use, especially when a significant portion of the copyrighted work is reproduced to the detriment of the copyright owner.

Fair dealing in simple terms means allowing the use of a copyrighted work without permission from the author. In determining fair dealing, the court would consider the value of the portion of the work taken or appropriated relative to the underlying work.

The concept of parody has evolved to the extent that it has been formalized in different legal systems, including statutory acknowledgment. In Nigeria, for instance, parody is enshrined in the Nigerian Copyright Act.In the Nigerian Copyright Act, the term “parody” is not explicitly defined. Instead, it is referenced in the Second Schedule to the Act, where various exceptions are outlined.

The Act provides that fair dealing purposes include (a) private use (b) parody, satire, pastiche, or caricature; (c) non-commercial research and private study, criticism, review, or the reporting of current events, subject to the condition that, if the use is public, it shall where practicable, be accompanied by an acknowledgment of the title of the work and its author except where the work is incidentally included in a broadcast. It further provides that in determining whether the use of a work in any particular case is fair dealing, the factors to be considered shall include the purpose and character of its usage, nature of the work, amount and substantiality of the portion used about the work as a whole, and effect of the use upon the potential market or value of the work.

The case of CCH Canadian Ltd. v Law Society of Upper Canada signaled an important shift in the Canadian interpretation of fair dealing. The case is not significant for parodies specifically, but more for its emphasis on the amplitude and purpose of the fair dealing defence. The respondents alleged that the Law Society had breached copyright when the Great Library reproduced copies of eleven of its copyrighted works. Library staff worked under a request-based photocopy service that allowed copies on request to be made and delivered by mail or facsimile. Instead of interpreting the fair dealing defences restrictively like its predecessors, the Supreme Court accepted that defences to copyright infringement should be seen as users’ rights. The Court came to a unanimous decision and held that the Law Society’s actions were research-based, fair, and therefore protected under the fair dealing provisions

The United States courts emphasize that a commercial purpose militates against fair use. This was laid down in Sony Corp v Universal City Studios Inc and Harper & Row Publishers Inc v Nation Enterprises. The Sony Corp., case involved owners of copyright in television programmes suing manufacturers of home video recorders alleging that individuals used them to record copyrighted works. The manufacturers were alleged to be liable for infringement because they sold the recorders. The Supreme Court emphasised that if the Betamax recorders were used to make copies for a commercial purpose, such use was presumed unfair. But in this case, the contrary presumption applied as it was a non-commercial use. The majority also found there was no harm to the potential market for or the value of the copyrighted work.

In an early case of Glyn v Weston Feature Film Co, Mr. Justice Younger suggested a more lenient approach towards parody. The plaintiff was the author of the novel Three Weeks. She alleged that the defendant’s farcical film Pimple’s Three Weeks (without the Option) was an infringement. It was held that the defendant had not taken a substantial part of the plaintiff’s work so there was no infringement. The defendant argued the film was a burlesque of the plaintiff’s novel and therefore was not an infringement.

  1. CONCLUSION

The Nigeria Copyright Act recognizes parody as a defence in copyright infringement proceedings and has been classified as fair dealing. However, in determining whether the use of a work in any particular case is fair dealing, the factors enumerated in section 20 of the Act must be considered.

The creation of parody as a defence will ensure that all parodies are capable of being protected under the Copyright Act, and not simply those parodies which can be seen as critical. Both critical and non-critical parodies advance the values underlying the right to freedom of expression, namely the “search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process.” If the impetus behind the development of a parody defence to copyright infringement is the desire to recognize and preserve the social benefits which arise from the creation and distribution of parodies, then any parody defence should be flexible enough to encompass both critical and non-critical parodies.

Despite numerous efforts to define the concept of parody (or fair use), it remains a complex, common-law principle. Rather than being precisely defined, it is better explained, described, or perceived. In fact, it has been labeled “the most troublesome in the whole law of copyright.” Moreover, the incorporation of this doctrine into copyright legislation in many countries has not resolved the definitional conundrum. The Nigerian Copyright Act, for instance, includes parody without providing a comprehensive definition. This absence of a precise definition may serve a useful purpose, allowing courts to apply the concept on a case-by-case basis, which is particularly apt given its relative/flexible nature. Additionally, this flexibility is vital to adapt to the ever-evolving technologies shaping contemporary creative expression.

________________________________________________

For further information on this article and area of law,
Please contact Idorenyin Ekpenyong at:
S. P. A. Ajibade & Co., Lagos by
Telephone (+234.703.8229.780), Fax (+234 1 4605092)
Mobile (+234.815.979.4218, +234.809.488.6972)
Email: iekpenyong@spaajibade.com
www.spaajibade.com

Footnote

  1. Idorenyin Sylvester Ekpenyong, Associate Trainee Intellectual Property & Technology Department, S.P.A Ajibade and Co., Lagos, Nigeria.
  2. See, https://globallawexperts.com/fundamental-elements-of-copyright-ownership-and-protection-under-nigerian-law-sandra-eke/ accessed on 28 November 2023.
  3. Bryant, J. (2018, November 13). ‘The Defence of Parody in Nigerian Copyright Law: Tradeoffs Between Owner And User’,available at: https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-copyright-law-tradeoffs-between-owner-and-user..…..
  4. See, https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-     copyright-law-tradeoffs-between-owner-and-user  accessed on 28th November 20
  5. See, https://www.mondaq.com/nigeria/copyright/754060/the-defence-of-fair-dealing-in-nigerian-copyright-law- accessed on 28 November 2023.
  6. Section 103 of the Copyright Act, 2022, Vol.110, A179-243, Section 251 of the 1999 Constitution of the Federal Republic of   Nigeria as amended, Order 2 Rule 2 High Court Civil Procedure Rule, 2019.
  7. See Sandra ‘Eke Fundamental Elements of Copyright Ownership and Protection Under Nigerian Law’ available at: https://spaajibade.com/fundamental-elements-of-copyright ownership-and-protection-under-nigerian-law-sandra-eke/ accessed 2nd December 2023.
  8.   Ibid.
  9. Ibid.
  10. Ibid.
  11.    See, Nigerian Copyright Commission v. MTN, Suit No. FHC/ABJ/CR/379/15.
  12. Nigerian Copyright Act, Vol.110, A179-243, 2022.
  13. See, https://core.ac.uk/download/pdf/228422135.pdf accessed on 30th November 2023
  14. Section 20 Nigeria Copyright Act, 2022.
  15. Margaret A. Rose, Parody: Ancient, Modern, and Post-Modern (New York: Cambridge University Press, 1993), at p. 5.
  16. Simon Dentith, Parody (New York: Routledge, 2000) at p. 10.
  17. Ibid.
  18. Section 20 of the Nigerian Copyright Act, 2022.
  19. 9 CCH Canadian Ltd. v. Law Society of Upper Canada [2004] 1 S.C.R. 339.
  20. 78 L Ed 2d 574 (1984).
  21. 85 L Ed 2d 588 (l 985).
  22. [1916) 1 Ch 261.
  23.   Ibid.
  24. See, https://core.ac.uk/download/pdf/228422135.pdf accessed on 30th November 2023.
  25. See, https://www.google.com/search?q=the+most+troublesome+in+the+whole+law+of+copyright      accessed on 28 November 2023.

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