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 [email protected]

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

Thenigerialawyer

The Director-General, National Agency for Food and Drugs Administration and Control (NAFDAC), Professor Mojisola Adeyeye, has debunked the statements circulating in the social media that NAFDAC has approved Paxherbal product “specifically for treating symptoms associated with Coronavirus”.

Professor Adeyeye said: “It is wrong and inaccurate; until a clinical study is done in a scientific manner, no herbal medicine manufacturer can claim effectiveness to treat COVID-19 associated symptoms.”

This was made known in a press statement made available to newsmen in Abuja by NAFDAC which stated that NAFDAC is currently processing 21 herbal medicinal products for “Safe to use” or listing status.

Many of the applicants claim that their products are immune boosters and anti-infectives useful for relief of symptoms that could be associated with COVID-19.

However, according to the NAFDAC DG, no clinical study has been done yet on any of the products to prove their claims of efficacy.

The statement reads: “Listing status involves the review of the composition of the formulation, the labelling of the product, the process of manufacture and “Safe to use” testing.

“Once the product is able to meet all requirements, a listing status is granted with a clear DISCLAIMER that states clearly that claims have not been evaluated by NAFDAC.

“The applicant can arrange for clinical trials that will involve use of human subjects in order to prove efficacy or claim for treatment following laid down procedures and with the approval of NAFDAC. However, Listing of a herbal product is not a requirement for the conduct of Clinical Trials.

The statement continued; “Most of the applicants that submitted herbal medicines that are currently undergoing processing have been issued compliance directives to provide additional information or/and evidence of Good Manufacturing Practice or environment fit for production of the medicines.

“Paxherbal applied for Listing of Pax Herbal Cugzin capsule 290mg which was approved by NAFDAC and Listed as “Safe to use”.

“The applicant claimed that it is an immune booster and an anti-infective.

However, as part of the labelling of the product, and in line with global practice, a Disclaimer is on the product label which clearly states that the claims have not been evaluated by NAFDAC,” the statement further stated.

Thenigerialawyer

A Civil Rights Advocacy group Human Rights Writers Association of Nigeira (HURIWA) has asked the Presidential panel probing the embattled former acting Chairman of the Economic and Financial Crimes Commission, Mr. Ibrahim Magu, to widen the scope of the investigation by inviting Nigerians who had experiences with the agency to narrate them.

In the alternative, such people should be asked to send in memoranda and petitions, adding that the anti-graft commission stank of professional misconduct which should necessitate a more elaborate investigations from time of its establishment.

In a media statement made available by the National Coordinator, Comrade Emmanuel Onwubiko and the National Media Affairs Director, Miss Zainab Yusuf, the body said it had resolved to petition the Justice Ayo Salami-led Presidential panel investigating Magu to also look at the extensively damaging allegations made by Chief Emmanuel Nwude, convicted previously over advanced fee fraud by a Lagos High Court, that some of the properties not listed amongst his assets forfeited upon conviction were sold by the Economic and Financial Crimes Commission.

According to HURIWA, when Nwude allegedly protested over the illegality, both himself and his lawyer were then roped in and charged for a nebulous offence allegedly by the suspended Chairman of the EFCC which they eventually won at both the High Court and the Court of Appeal against the Economic and Financial Crimes Commission.

HURIWA submitted that the weighty allegations made against the EFCC and some of their lawyers by the complainant Chief Emmanuel Nwude were such that should be captured under the terms of reference of the Justice Ayo Salami headed Presidential panel of investigations just as the Rights group said it would also petition the President on the need to carry out a holistic forensic investigations of EFCC so the Aegean stable would be cleaned up thoroughly and for the anti-graft war to regain the needed credible momentum.

The body said that from the petitions and responses of the Commission and some of its lawyers, it would turn in severe revelations of various kinds of abuses should the government take time to invite petitions and probe some of the sleazy actions of the commission.

They promised to make available details of responses that they alleged were incriminating to allegations of criminal appropriation of lawfully acquired properties by individuals like Nwude, pointing out that similar cases abound and should form part of the Justice Salami panel investigations.

HURIWA is therefore challenging the Federal Government of Nigeria to look at all these petitions and deal with them on merit so the fight against corruption is not fought with corruption.

Thenigerialawyer

The Lagos State Ministry of Health on Saturday said it had sealed a private medical laboratory conducting COVID-19 tests inside a pharmacy at Banana Island in Ikoyi, Lagos.

The ministry, through its Twitter account, said that the lab; Acouns Medical Laboratory and Diagnostic Centre, situated inside a pharmacy was carrying out COVID-19 tests without required government approval.

It advised residents to desist from patronising health facilities not accredited by the state government for testing or management of COVID-19 cases.

According to the ministry, it poses danger to the community and staffs of such facilities.

“It is illegal to manage COVID-19 cases outside of an accredited facility.

“We implore the public not to go for test or treatment in a private facility that has not been accredited by government.

“It is dangerous and it might put you at more risk,” it said.

The ministry said that the laboratory was sealed through one of its agencies- Health Facility Monitoring Accreditation Agency (HEFAMAA).

It said that the ministry would continue to do its best to ensure that health facilities in the state adhere strictly to standards that guarantee the health and wellbeing of Lagos citizens.

thenigerialawyer

The ECOWAS Court of Justice sitting in Abuja, on Friday, ordered the Federal Government of Nigeria to repeal or amend the provision of its cybercrimes law, which violates citizens’ right of expression.

Delivering the judgment of the three-man panel of the court, Justice Januaria Costa ordered the Nigerian government to make the law to align with its obligation under Article 1 of the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights.

A summary of the judgment released by the court’s media unit on Friday stated that the verdict “held the Nigerian government liable for the violation of the right to freedom of expression” with the enactment of Section 24 of the  Cybercrime Act, 2015.

The said Section 24 of the law, criminalises sending from computer messages, considered to be among others, “grossly offensive, pornographic or of an indecent, obscene or menacing character or causes any such message or matter to be so sent,” or that the person “knows to be false, for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, ill will or needless anxiety to another or causes such a message to be sent.”

A civil society group, Laws and Rights Awareness Initiative, had, through its counsel, Mr Chukwudi Ajaegbo, filed the suit marked application ECW/CCJ/APP/53/18 on November 6, 2018, claiming, among others, that its members’ freedom of expression on the Internet or in the use of computer devices was limited/breached by Section 24 of the Cybercrime Act enacted by the Nigerian government.

The plaintiff further claimed that nine of its partners were arrested and detained in connection with the enforcement of the provision of Section 24 of the Cybercrime Act in violation of Articles 9 of the African Charter on Human and Peoples’ Rights, 19 of the International Covenant on Civil and Political Rights, and 39 of the Nigeria’s Constitution.

Opposing the suit, the Nigerian government argued that Section 24 of the Cybercrime (Prohibition and Prevention) Act 2015 was adopted as a legislative measure to give effect to freedom of expression as provided in Article 9(2) of the African Charter on Human and Peoples’ Rights, and was in accordance with provisions of Section 39(3) of the country’s 1999 Constitution.

Although the court upheld the plaintiff’s prayer seeking the striking down of Section 24 of the cybercrime law, it dismissed other claims of the plaintiffs contained in the suit for lack of evidence.

Other judges on the panel, Justices Dupe Atoki (presiding) and Keikura Bangura, agreed with Justice Costa, who delivered the judgment.

PUNCH.

ABUJA (SundiataPost) – President Muhammadu Buhari has said that documented allegations against Ibrahim Magu, suspended acting chairman of the Economic and Financial Crimes Commission (EFCC) were detailed enough and require thorough investigation.

Speaking through Malam Garba Shehu, Senior Special Assistant on Media and Publicity on Saturday, the President said an investigative panel was set to look into the allegations as required by law.

The full statement reads:

PRESIDENCY STATEMENT ON THE SUSPENSION OF MR. IBRAHIM MAGU

A series of documented allegations were made against the Ag. Chairman of the Economic and Financial Crimes Commission (EFCC). Following a preliminary review of the allegations leveled against the Ag. Chairman and several other members of his staff, there were grounds for a detailed investigation to be conducted.

Hence, an investigative panel was constituted in compliance with the extant laws governing the convening of such a body.

As is the proper procedure, when allegations are made against the Chief Executive of an institution, and in this case an institution that ought to be seen as beyond reproach, the Chief Executive has to step down from his post and allow for a transparent and unhindered investigation.

The EFCC does not revolve around the personality of an individual, and as such cannot be seen through the prism of any individual.

Therefore, the suspension of Mr. Ibrahim Magu, allows the institution to continue carrying out its mandate without the cloud of investigation hanging over its head.

The EFCC has many good, hardworking men and women who are committed to its ideal and ensuring that the wealth of our country isn’t plundered and wherein there is an act of misappropriation such person(s) are brought to justice.

Meanwhile, Mr. Magu is being availed the opportunity to defend himself and answer the allegations against him. This is how it should be, as is the fact that under the Laws of Nigeria every citizen is presumed and remains innocent until proven guilty.

We must realize that the fight against corruption is not a static event, but a dynamic and ever evolving process, in which the EFCC is just one actor; and as we continue to work towards improving our democratic process so shall every institution of ours also embark on that journey of evolution.

What is however important is that there must be accountability and transparency and our people must realize that they would be held to account. This is the building block in the fight against corruption, the establishment of the concept of Accountability and the recognition of the Rule of Law.

Those who see Mr. Magu’s investigation, as a signal that the fight against corruption is failing, have unfortunately, missed the boat.

There is no better indication that the fight is real and active than the will to investigate allegations in an open and transparent manner against those who have been charged to be custodians of this very system.

Under this President and Government, this is our mantra and guiding principle. There are no sacred cows, and for those who think they have a halo over their heads, their days are also numbered.

Mr. Magu was not immune – and regardless of the obvious embarrassment that potential acts of wrongdoing by him, given the office he held, may appear for the government.

No other administration in the history of Nigeria would have moved to bring into the light and public domain such an allegation.

Garba Shehu
Senior Special Assistant to the President
(Media & Publicity)
July 11, 2020