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ABSTRACT

Copyright is gradually assuming prominence in this country. This is not surprising because of its economic significance. Copyright seeks and aims at protecting the author’s economic interests nationally and internationally. It is not only of economic significance to the authors but also to the public in general.

Copyright does not prohibit all copying or replication. It is not one of those rights that admit of no exception. This shows that certain acts are exempted from copyright control. The Copyright Act, especially schedule two thereto, specifies a number of exceptions from the general principle of copyright control. The exceptions do not have general application to all the eligible works. Its application depends on the nature and type of a particular work. All the exceptions specified in the Second Schedule to the Act apply to Literary, Musical, Artistic Works and Cinematograph Film; they have limited application in respect of Sound Recordings and Broadcasts. Sound Recordings are only subject to paragraphs (a), (h), (k), (l), and (p) of the Second Schedule, while at the same time paragraphs (a), (h), (k), (n), and (o) apply to broadcasts.

There are also some other special exceptions specified under the third schedule in respect of sound recordings of musical works. Moreover, other exceptions abound throughout the length and breadth of the Copyright Act.

These exceptions make it clear that copyright in work is not infringed by any person whose act comes within the context of any of the specified exceptions.

The aim of this work as the title suggests is to discuss the relevant provisions of the Copyright Act that protects Fair Dealing. Infringement under the law is not condoned but when the act or omission is carried on under some special circumstances of Fair Dealing, it is not regarded as infringement under the law.

CHAPTER ONE

INTRODUCTION

1.0    Meaning of Intellectual Property.

The term Intellectual property could simply be said to be that which deals essentially with ownership. There is generally no one acceptable definition of the term Intellectual Property but it could be said to be that which relates to all or any of those categories of property, which are acquired through intellectual creativity. They are normally intangible in nature and are subject to ownership with the entire attendant legal incidence.

Intellectual Property is a legal field that refers to creations of the mind such as musical, literary and artistic works; intentions, and symbols, names, images and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under Intellectual Property Law, the holder of one of these abstract “Properties” has certain exclusive rights to the creative works, commercial symbol, or invention, which is covered by it. The laws of some government have recognized forms of intellectual property for a few centuries, but other government’s scholars question the legitimacy and philosophical basis of such laws. Several international treaties since the 19th century have standardized many aspects of the law, but the laws and enforcement still vary widely from one jurisdiction to another. Furthermore, the understanding and observance of Intellectual Property Laws by individuals are widely varied.

Obviously this Branch of Law has grown enormously over the years thus leading to its separation from the wider and pre-existing prawns of property law. This may be attributed to the growth and development in science and technology. The introduction of this technology has led to learning and inventions being spread more widely to the masses. From the foregoing, one would be faced with the inevitable question, what sorts of intellectual creations are covered by the law of intellectual property. 17

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Basically, there are four major subjects of intellectual property law viz: Copyright, Trademarks, Patents and Industrial Designs. The last three are usually called “Industrial Property” mainly because they substantially concern industrial processes and application.

Copyright operates to control the copying of intellectual materials existing in the field of literature and the arts, protecting the writer or artist against the unauthorized copying of his materials thereby giving the copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. The primary concern of Copyright is with expression of ideas, such expression boarding mainly on originality and not necessarily novel and they may be in the form of literary, artistic, musical or other works of art. The right generated or acquired through Copyright is conferred automatically in Nigeria without registration.

Trademark on its own deals chiefly with marks that are used or proposed to be used in relation to goods for the purpose of indicating a connection between the goods and the proprietor of the mark. It is a distinctive sign which is used to distinguish the products or services of different businesses. It must be mentioned at this point that such mark or symbol must be used in the course of trade. This right being a monopoly right is registerable and upon registration the right is protected both under statute and common law or passing off as was applied in the case of Patkun Industries Ltd V

Nigeria Shoes Manufacturing Co. Ltd 1

A Patent on its own is an exclusive right granted by law to an inventor guaranteeing him the exclusive use and exploitation on the industrial process as invented. A Patent is equally registerable. It gives the patent holder a right to prevent others from practising the invention without licence from the inventor for a certain period of time. The right to an Industrial Design similarly consist of the right in the reproduction and

1(1988) 5NWLR (Pt 93) 138 and Ayman Ent Ltd V Akuma Ind. Ltd (2003) 13NWLR (Pt836) 22.

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use of a registered design intended to be used as a model or pattern to be multiplied by any industrial process and is not intended solely to obtain a technical or functional result. An Industrial Design right protects the form of appearance, style or design of an industrial object (eg spare parts, furniture or textiles) A Design is registerable if it is new and not contrary to public order or morality2 –

An Industrial Design is any combination of lines or colours or both and any three-dimensional form whether or not associated with colours if it is intended by the creators to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result. It is noteworthy that the law of Industrial Property frowns at any similarity even if coincidental but the law on copyright only prohibits unauthorized copying.

“Intellectual Property” denotes the specific legal rights, which authors, inventors and other Intellectual Property holders may hold, and exercise, and not the intellectual work itself. Intellectual Property Laws are designed to protect different forms of subject matters, although in some cases there is a degree of overlap.

Patents, Trademarks, and Designs Rights are sometimes collectively known as Industrial Property, as they are typically created and used for industrial or commercial purposes.

1.2 History of Intellectual Property

The earliest use of the term ‘Intellectual Property’ appears to be an October 1845.