Final Remarks

163 4.7.5 Reproduction on Braille

The Nigerian Act allows the reproduction of published works in Braille for the exclusive use of the blind and sound recordings made by the institutions or other establishments approved by the Government for the promotion of the welfare of other disabled persons for the exclusive use of such blind persons.⁶⁴⁷ This exception obviously relates to published works in two categories, that is, the reproduction in Braille for the blind; and reproduction of sound recordings for other disabled persons. It is submitted that there ought to have been some nexus between the particular disability and the use of the sound recording as a means of gaining access to such works. This is because a handicap in the limb for example, would not justify the use of a sound recording of a literary work. Moreover, the Act does not consider whether these works are available in the market before allowing this exemption. It is submitted that this provision may lead to confusion and conflict of interest. It is suggested that the Act be amended to stipulate the disabled persons contemplated in relation to specific works, and to state that this exemption is only allowed if the original work is out of stock.

164 Court.⁶⁴⁸ Asein stated that this exception relates to the underlying work, e.g. a film or sound recording, that is being broadcast and not the broadcast itself.⁶⁴⁹ This view seems to be correct in that the exemption is more like a statutory license allowing any work that has already been made lawfully accessible to the public to be broadcast subject to payment of compensation.

It is arguable that if a Broadcasting Organization is alleged to have infringed Copyright in a work by broadcasting a music or cinematograph film which has already been made lawfully available to the public, the best the owner of the Copyright can do is to bring an action for the payment of fair compensation and not for infringement of the Copyright in the work; since the only condition precedent for the applicability of this exception is that the work must have been lawfully made accessible to the public prior to such broadcasting.

It is submitted that the inability of the Nigerian Act to define both the targeted „audience‟

contemplated by the drafters of the Act, as well as what constitutes „payment‟ by such audience gives Copyright violators a wide margin to expand their illicit trade of infringement of Copyright. It is therefore suggested that the Act be amended to include the said definitions.

4.8.2 Reproduction by a Broadcasting Authority

The Nigerian Act permits the reproduction of a work by or under the direction or control of a broadcasting authority where the reproduction or any copies thereof are intended exclusively for a lawful purpose and are destroyed before the end of the period of six months immediately following the making of the reproduction or much longer period as may be agreed between the broadcasting authority and the owner of the relevant part of the Copyright in the work, so however that any reproduction of a work made under this paragraph:⁶⁵⁰

648 Ibid. Paragraph (m) of the Second Schedule.

649 J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 273.

650 C.R.A.N. Paragraph (i) of the second schedule.

165 (a) may if it is of an exceptional documentary character, be preserved in

the archives of the broadcasting authority (which shall for the purpose of this paragraph be deemed to be part of the National Archives) established under the Public Archives Act;

(b) subject to this Act, shall not be used for broadcasting or for any other purpose without the consent of the owner of the relevant part of the Copyright in the work.

Though the Act does not specify what will happen if the work is not destroyed as specified in this section, it is a welcome development that the Act prescribes that the work may, if it of exceptional documentary character be preserved in the Archives; and that the owner of the work may be approached to authorize that the work be kept for such longer period as may be agreed by the parties. This Copyright friendly provision will curb the hassles that may be encountered in creating or recreating such a nice work upon the destruction of the original work. However, problem may arise where the destruction contemplated is not carried out;

and without the Copyright owner being aware of this development. This is worsened by the fact that the Act does not create or mandate any institution that will supervise such destruction. These dangers far outweigh the importance and relevance of this exemption. It is therefore suggested that the Act be amended to mandate an institution to monitor the aforementioned destruction.

4.8.3 News of the Day

This exemption created by the Law relates to the broadcasting of works which have already been publicly broadcast or publicly communicated by any other means.⁶⁵¹ This exemption seems to be distinct from the provision of fair dealing for the purpose of reporting current events.⁶⁵² It seems to concern current events, which is news of the day.

651 Ibid. Paragraph (11) of the Second Schedule.

652 J Asein, Nigerian Copyright Law & Practice, Op. Cit. p. 273.

166 4.8.4 Communication by Clubs Free of Charge

The Nigerian Act exempts 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.⁶⁵³ It is submitted that this exemption is Copyright friendly since its object is to advance the dissemination of information. This may be the reason for the incorporation of this exemption into the Nigerian Act.