Attribution is not the same as permission to use

Persons operating in the creative space in Nigeria are more
aware of their intellectual property rights than ever before.
However, there is still a knowledge gap, particularly about what is
permitted under “fair dealing” as provided for in Nigerian
Copyright law. Several conflicts have played out on social media
where right-protected work is used without the permission of the
owner and the user feels entitled to such either because the use is
not for commercial purposes or they have attributed the work to the
owner.

The general scope of copyright protection in Nigeria is provided
for in section 5 of the Copyright Act. Generally,
copyright-protected work cannot be reproduced, published,
performed, distributed, exhibited, copied or adapted, without the
express permission of the copyright owner. The exceptions are found
in the Second Schedule to the Act. It contains a very extensive
list of what acts are exempted from. Because the drafters of the
law took the time to itemize these exceptions, a user who wants to
use a work without the owner’s permission must make sure to
comfortably situate their use in one of those exceptions.

Item (a) of the Second Schedule states
that:

The right conferred in respect of a work by section 5 of this
Act does not include the right to control—

(a) the doing of any of the acts mentioned in the said section 5
by way of fair dealing for purposes of research, private use,
criticism or review or the reporting of current events, subject to
the condition that, if the use is public, it shall be accompanied
by an acknowledgment of the title of the work and its authorship,
except where the work is incidentally included in a broadcast;…

Other exceptions include:

Use of the work as parody, pastiche or caricature; incidental
inclusion in a film or broadcast; inclusion in a film or a
broadcast of an artistic work situated in a place where it can be
viewed by the public; reproduction and distribution of copies of
any artistic work permanently situated in a place where it can be
viewed by the public; the reading or recitation in public or in a
broadcast by any person of any reasonable extract from a published
literary work if accompanied by a sufficient acknowledgment:
Provided that such reading or recitation is not for commercial
purpose; the communication to the public of a work, in a place
where no admission fee is charged in respect of the communication,
by any club whose aim is not profit making;… etc.

The cover art for my novel, Yellow-Yellow, includes an image of
a woman. The art was designed by a friend of mine who is a
photographer and filmmaker. I gave him a synopsis of the book and
left the rest up to him, and he delivered. I loved the first image
he sent to me. The model was, in my mind, the perfect actualisation
of the main character in my novel. However, a few days later, my
excitement was crushed when my friend called to say that the
model’s agency refused to grant permission for her image to be used
on a book cover. He had to find another model whose image we could
use without issue. Luckily, he was able to find one.

I share this to illustrate the point that apart from the fear of
copyright infringement, there are other reasons to get permission
from the owners of copyright-protected work before you use them
(unless the use falls into one of the exceptions). One reason is
the existence of contractual obligations. Although my friend was
the “author” of the photograph and owned the copyright in the
photo, there were contractual obligations between him and the
modelling agency, as well as between the model and the agency, that
would have been breached if the image was used for my novel. These
contractual obligations are not made public and cannot/should not
be presumed.

Another reason is reputation management/brand association
issues. For example, a person uses a copyright protected
photograph/image to advertise their event and feels justified in
doing so because they attributed the image to the owner. The
problem with this thinking (apart from it being copyright
infringement) is that it disregards the copyright owner’s right to
choose who and what commercial ventures they associate with. Using
the image in that manner can be construed as an endorsement of or
involvement in the event by the owner of the copyright protected
work.This perception could have a negative impact on current and
proposed commercial opportunities for the copyright owner. It could
also impact on the public’s perception of copyright owner and their
brand.

Seeking permission, preferably in writing, does not necessarily
involve costs. A copyright owner may grant permission to another
person to reproduce their work for no fee, depending on the use for
which permission is sought.

For images, there are enough open-source platforms that carry
works that are free for commercial use, and no attribution
required. If you do not want to go through the hassle of seeking
permission to use someone’s work, or commissioning a photographer
to create your own images, these platforms are a good place to
start.

Remember, unless your proposed use falls under one of the
exceptions provided for in the Copyright Act, your use, without
permission, is an infringement. Acknowledgment of or attribution to
the owner is not enough. Note that in Nigeria, copyright
infringement is a criminal offence punishable by imprisonment.

Culled Punch

Persons operating in the creative space in Nigeria are more
aware of their intellectual property rights than ever before.
However, there is still a knowledge gap, particularly about what is
permitted under “fair dealing” as provided for in Nigerian
Copyright law. Several conflicts have played out on social media
where right-protected work is used without the permission of the
owner and the user feels entitled to such either because the use is
not for commercial purposes or they have attributed the work to the
owner.

The general scope of copyright protection in Nigeria is provided
for in section 5 of the Copyright Act. Generally,
copyright-protected work cannot be reproduced, published,
performed, distributed, exhibited, copied or adapted, without the
express permission of the copyright owner. The exceptions are found
in the Second Schedule to the Act. It contains a very extensive
list of what acts are exempted from. Because the drafters of the
law took the time to itemize these exceptions, a user who wants to
use a work without the owner’s permission must make sure to
comfortably situate their use in one of those exceptions.

Item (a) of the Second Schedule states
that:

The right conferred in respect of a work by section 5 of this
Act does not include the right to control—

(a) the doing of any of the acts mentioned in the said section 5
by way of fair dealing for purposes of research, private use,
criticism or review or the reporting of current events, subject to
the condition that, if the use is public, it shall be accompanied
by an acknowledgment of the title of the work and its authorship,
except where the work is incidentally included in a broadcast;…

Other exceptions include:

Use of the work as parody, pastiche or caricature; incidental
inclusion in a film or broadcast; inclusion in a film or a
broadcast of an artistic work situated in a place where it can be
viewed by the public; reproduction and distribution of copies of
any artistic work permanently situated in a place where it can be
viewed by the public; the reading or recitation in public or in a
broadcast by any person of any reasonable extract from a published
literary work if accompanied by a sufficient acknowledgment:
Provided that such reading or recitation is not for commercial
purpose; the communication to the public of a work, in a place
where no admission fee is charged in respect of the communication,
by any club whose aim is not profit making;… etc.

The cover art for my novel, Yellow-Yellow, includes an image of
a woman. The art was designed by a friend of mine who is a
photographer and filmmaker. I gave him a synopsis of the book and
left the rest up to him, and he delivered. I loved the first image
he sent to me. The model was, in my mind, the perfect actualisation
of the main character in my novel. However, a few days later, my
excitement was crushed when my friend called to say that the
model’s agency refused to grant permission for her image to be used
on a book cover. He had to find another model whose image we could
use without issue. Luckily, he was able to find one.

I share this to illustrate the point that apart from the fear of
copyright infringement, there are other reasons to get permission
from the owners of copyright-protected work before you use them
(unless the use falls into one of the exceptions). One reason is
the existence of contractual obligations. Although my friend was
the “author” of the photograph and owned the copyright in the
photo, there were contractual obligations between him and the
modelling agency, as well as between the model and the agency, that
would have been breached if the image was used for my novel. These
contractual obligations are not made public and cannot/should not
be presumed.

Another reason is reputation management/brand association
issues. For example, a person uses a copyright protected
photograph/image to advertise their event and feels justified in
doing so because they attributed the image to the owner. The
problem with this thinking (apart from it being copyright
infringement) is that it disregards the copyright owner’s right to
choose who and what commercial ventures they associate with. Using
the image in that manner can be construed as an endorsement of or
involvement in the event by the owner of the copyright protected
work.This perception could have a negative impact on current and
proposed commercial opportunities for the copyright owner. It could
also impact on the public’s perception of copyright owner and their
brand.

Seeking permission, preferably in writing, does not necessarily
involve costs. A copyright owner may grant permission to another
person to reproduce their work for no fee, depending on the use for
which permission is sought.

For images, there are enough open-source platforms that carry
works that are free for commercial use, and no attribution
required. If you do not want to go through the hassle of seeking
permission to use someone’s work, or commissioning a photographer
to create your own images, these platforms are a good place to
start.

Remember, unless your proposed use falls under one of the
exceptions provided for in the Copyright Act, your use, without
permission, is an infringement. Acknowledgment of or attribution to
the owner is not enough. Note that in Nigeria, copyright
infringement is a criminal offence punishable by imprisonment.

Culled Punch