Desmond Oriakhogba for IP Kat, Link (CC-BY-NC)
Background
In October 2021, I wrote about the Nigerian copyright law reform process. In that piece, I highlighted some key proposals in the Copyright Bill that will promote balance, openness and flexibility; I summarised the activities leading up to the public hearing organised by the Senate (where I presented comments by the Electronic Information For Libraries (EIFL) and the Programme on Information Justice and Intellectual Property (PIJIP)) ; and stated the important next steps that will bring about the birth of a new copyright regime in Nigeria. The reform process is now complete with the recent assent to the Bill, as the Copyright Act 2022, by the Nigerian President. The Act introduces a new vista in Nigerian copyright law as it repeals the Copyright Act 2004.
How can libraries in Nigeria benefit from the Copyright Act 2022?
Selected key innovations of the Copyright Act 2022
The official copy of the Copyright Act 2022 will be published in due course in the Official Gazette. Pending publication, the pre-assent copy of the Act can be accessed here. Okorie and Band have separately, and commendably, highlighted some key innovations of the new Act. Of particular note for libraries are the range of exceptions introduced by the Act that will support the effective delivery of information services to students and scholars in Nigeria.
In addition to the open and flexible fair dealing provision, as briefly examined by Band, the new Act has important specific provisions to support research, and the work for libraries, museums and archives in Nigeria. These include the use made of works by or under government’s, or public library’s direction or control where the use is in the public interest (section 20(1)(f)); the use of out of commerce works for public library’s use (section 20(1)(j)); the reproduction of unpublished literary or musical works by libraries, etc, for the purpose of research or private study (section 20(1)(k)); a Marrakesh-styled exception for the blind, visually impaired and persons with print disability (section 26) in addition to a broad exception covering other disabilities beyond Marrakesh (section 20(1)(m)), and the making of transient and incidental copies as integral and essential part of a technological process (section 20(1)(l)).
Other provisions relevant to libraries include the communication or making available of works to the public through dedicated terminals on the premises of libraries, etc (section 20(1)(o)); the exception relating to the use and archiving of computer programs (section (20(2)); compulsory licence mechanism (sections 31-35); and an omnibus exception to the anti-circumvention stipulations in the new Act (section 50(7)). Interestingly, the new Act protects the exceptions from contractual terms that override the exceptions by voiding any term that “purports to restrict or prevent the doing of any act permitted” under its purview (section 20(3)).
The foregoing provisions are in keeping with the core objectives of the new Act, which includes (a) the protection of the “rights of authors to ensure just rewards and recognition for their intellectual efforts”; and (b) the provision of “appropriate limitations and exceptions to guarantee access to creative works” (section 1). Indeed, the Act has now positioned the Nigerian copyright regime as a public interest friendly and development-focused framework that will equally take care of the interest of rights owners and users of creative outputs such as researchers and libraries, etc. The Act can also serve as a model for other African countries as they strive to align with the continental strategies for the promotion of the public interest in copyright and access to knowledge through the Intellectual Property Protocol under the AfCFTA Agreement, and the recently adopted African Group’s proposed Work Program on Exceptions and Limitations at the WIPO.
Next steps to implement the new Act for libraries
Nonetheless, enactment of a progressive law is one thing. Operationalisation of the law to achieve its objectives for the benefit of the relevant stakeholders is another. For libraries in Nigeria to benefit from the new Act, specific and targeted actions should be taken. An enlightenment campaign with the main objective of knowledge and capacity building for librarians and libraries in Nigeria must be top on the priority list of such actions. This should be undertaken with all sense of emergency to inform librarians in Nigeria about their new rights and responsibilities under the law. The enlightenment campaign should be backed by the formulation and production of user-friendly toolkits on the application of, and reliance on, copyright exceptions and limitations, and best practices guidelines for the development of copyright policies for libraries under the new Act.
The Nigerian Copyright Commission (NCC) is established under the new Act, among other things, to “enlighten and inform the public on matters relating to copyright” (section 78(1)(d)). Thus, it will be important for the NCC to drive this process in collaboration with organisations, such as the Nigerian Library Association (NLA) and the Association of University Librarians of Nigerian Universities(AULNU) and relevant experts in the field of copyright and access to knowledge in Nigeria. It will also be interesting to collaborate with key international organisations, such as EIFL, which works to build capacity of librarians in copyright issues and to support progressive copyright reform globally, especially in Africa (Section 25 of the new Act on libraries, archives and museums reflects provisions in the EIFL Draft Law on Copyright). Resources exist that can serve as precedents for this purpose. The resources include EIFL’s guide on developing copyright policy for libraries, and WIPO toolkit on preservation. Given the similarity between the fair dealing provision in the new Act and the fair use exception US Copyright Act, it will also be useful to draw from the Code of best practices in fair use for academic and research libraries prepared by the Association of Research Libraries (ARL), American University Center for Social Media (AUSOC) and Program on Information Justice and Intellectual Property (PIJIP).
The Nigerian Copyright Act 2022 is a great step forward for Nigeria, and the development of copyright laws on the continent. It will serve as a model for other countries in Africa that are updating and modernising their laws for the digital environment, and an inspiration for the library community throughout the world.
