Work eligible for copyright protection as contained in section 1(1) are literary, musical, artistic works, cinematograph films, sound recording, and broadcasts[1]. The defenses available for copyright infringements vary in nature and degree just as the instances of infringement may differ from one type of work to another. Various rights are conferred on the authors or creators of these works and there are several acts any of which may constitute an infringement of any of such rights. Any of such infringements may attract civil liability and in some cases, criminal sanctions. The violation of these rights would be actionable at the instance of the author or owner of the copyright as a breach of statutory duty. DEFENSES TO COPYRIGHT

A defendant who is able to show that the nature or circumstances of his action falls within any of these exceptions may be absolved from liability. The Copyright Act of 1988(as amended) provided the general nature and scope of the rights in a particular work subject to some or all of the exceptions. Some relate to education, private research or use, criticisms, review, and others. The original plan had been to make the limits restrictive. These exceptions are discussed below. Efforts were made to find out whether these exceptions have watered down the copyright efficacy. DEFENSES TO COPYRIGHT


Innocent Permission:


Section 15(1)(f) provides that:


Copyright is infringed by any person who without the licence or authorization of the owner of the copyright – permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringement of the copyright in the work, unless the person permitting the place to be so old was not conscious, and had no logical ground for suspecting that the performance would be an infringement of the copyright. DEFENSES TO COPYRIGHT


This defense only exonerates a person who innocently permits a place to be used for a performance in the public without any reference to the other act enumerated in the section. This means that other paragraphs do not apply except where they fall under the permitted acts contained herein. That is, it is only available in respect of innocent permission to use public entertainment for performance. In Performing Right Society Ltd. vs. Ciryle Theatrical Syndicates Ltd[2], it was held that a proprietor of a place of public entertainment is not responsible for the unwarranted performance of an independent contractor which resulted in infringement of the work. In this case, the plaintiffs claimed that the defendants without the consent either authorized the performance or permitted the use of their theater by a band for the performance of copyright music of the plaintiffs. The defendants successfully contended on appeal that they were not liable for the unwarranted performance on the ground that the band was an independent contractor. But, it is to be noted that the position would have been different if the band members were the servants of the proprietor in which case the copyright owners would have successfully proceeded against the proprietor vicariously for the infringement. DEFENSES TO COPYRIGHT

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Archival Materials:

One of the copyright owner’s rights is the reproduction of his literary, musical and artistic works with his consent. However, section 15(2) of the Nigerian Copyright Act provides a defense


The effect of this provision is that where the reproduction is that of a copyrighted archival material stored in the National Archives or any State public record kept pursuant to any law in force amounts to no infringement. This defense is not available for a defendant who reproduced the work for commercial purposes or in any manner other than in pursuance of the Public Archives Act or any other applicable law DEFENSES TO COPYRIGHT






[1] Article 6 Bis, Berne Convention

[2] (1924)1 K.B 1, Court of Appeal (CA), in ABULJ Vol. 21-22, (2003-2004), p.154.

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