Copyright Protection and Exceptions

Copyright Protection
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Can a copyright suit successfully lie in all cases of publication of an author’s work without authorization? The answer seems to depend on many factors. In the United States of America, for example, political speeches are not subject to copyright protection if the authors are officials of the federal government.[1] Such works may not be given copyright protection, and their use may be justified even without permission from the author, although this will definitely amount to plagiarism. Second, works that have fallen into the public domain can be freely used by other authors – attributing the original author may no longer be necessary. Third, if reasonable quantity is taken out of a man’s work for some purposes, for example, research, private use, criticism or review or report of current event, it will be regarded as fair dealing of the work.[2]

So how does one determine fair use? In Hubbard v.Vosper[3] Lord Denning M.R. laid down the test for determining fair dealing, or fair use. In that case, the Master of the Rolls said that it is not possible to define fair dealing. It depends on the circumstances of a case. But to take long extracts and add a short comment may be unfair and to take short extracts and add long comments may be fair.

This test is not exhaustive; there are cases where what was taken was very small, but deemed to be the ‘heart’ of the copyrighted work, and not justified under fair use.[4]

What if after Mr. X has finished his tenure as president of the United States of America, he delivered a moving commencement speech at the graduation of his daughter at the Harvard University, and Mr. Z who was there has gone to write a book using the exact words of President X, without permission, and has made huge profits from the sale of that book, can Mr. X bring a successful copyright infringement suit against Mr. Z? The answer seems to be in the affirmative. This is because X is no longer an official of the federal government of the United States of America; therefore X has copyright in his speech, which Z has infringed.

However, imagine that President X delivered an acceptance speech on January 3, 2003, and a President Y ‘took’ some portions of the same speech for the purposes of his acceptance speech which was delivered on January 3, 2017. President Y is free of liability under the copyright law, although his action is morally reprehensible. This is simply because President X’s speech is a political speech and X is a public person. Therefore, X’s acceptance speech does not enjoy copyright protection. Hence, if President X sues President Y for copyright infringement, the action is likely to fail, although the public may decry President Y’s act of plagiarism.

It is believed that if a work is strictly and completely reserved for the creator, knowledge and creativity will be unduly hampered. Therefore, it is necessary to allow some measure of ‘copying’ in the interest of the society. The aim of intellectual property is to balance the see-sawing interests of both the authors and members of the society – hence, a liberal interpretation is often employed in IP cases.

This article is intended to provide general information about the subject matter. Professional legal advice should be sought about specific circumstances.

[1] T. Fisher, ‘The Mechanics of Copyright,’ 6.1(14.00 minutes) available at copyx.org, accessed January 25 2017.

[2] Second Schedule to the Copyright Act Cap C28 Laws of Federation of Nigeria 2004; 17 United States Code, s. 107.

[3] Hubbard v. Vosper (1972) 2 Q.B. 84

[4] Harper & Row v. Nation Enterprises, 471 U.S. (1985).

About Ezeudo Maduka 6 Articles
Ezeudo Maduka Esq. holds a Bachelor of Laws from the University of Nigeria Nsukka, a licence to practise as Barrister and Solicitor of the Supreme Court of Nigeria, a Master of Laws from the University of Uyo, and a diploma in copyright from the Harvard Law School and Berkman Centre of Internet and Society. He has been a practising lawyer for the past 7 years and a law lecturer at the Abia State Polytechnic Aba, Abia State. His research interests orbit the intersection of copyright law and the Internet; digital piracy; anti circumvention of technological protection measures; protection of digital works, and other areas within intellectual property law and practice in the 21st century.

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