By Justin Ige
The issue came up during the COSON SELECT STAKEHOLDERS FORUM whether or not an advertising agency can freely use copyrighted music in their adverts without authorization, permission or license from the owner, provided the duration of what was used of the work did not exceed nine seconds. The rule permitting an advertising agency to do this was referred to as the unwritten nine seconds rule. It was necessary to determine whether such a rule actually exists at law and whether such a rule was applicable in Nigeria. I might as well just quickly say that such rule, even if it exists and is applicable in some other jurisdiction, is absolutely and completely inapplicable in Nigeria. Such nine seconds or ten seconds or five seconds or any number of seconds at all rules doesn’t exist in Nigeria. It therefore follows that if any Nigerian advertising agency, believing in any such rule or variant of it, uses music in conformity with and in reliance on such rule, it will definitely find itself on the wrong side of the law. Such an advertising agency would be exposing itself and its clients to ridicule, lawsuits and claims. That is however not to say that one cannot legally use small or minimal portions of copyrighted music without license from the owner of the work. The question is whether Nigerian advertising agencies can do so and to what extent they may. The area of copyright law that deals with this question is known as fair dealing or otherwise called fair use in other jurisdictions.
What then is law of fair use or fair dealing, and how may an advertising agency properly view itself and its business within the provisions of the law in this regard? Fair dealing is provided for under the second schedule of the Nigerian copyright Act, 2004. It is an exception the general rule that one may not make copies of or use whole or portions of copyrighted works without authorization or license from the copyright owner. In other words, the law of fair use allows the making of copies of copyrighted works without authorization from the owner of copyright in those works. Lord Denning, in Hubbard v. Vosper said: It is impossible to define fair dealing; it must be a question of degree. You must first consider the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions
From the words of Lord Denning, it appears that a nine seconds rule should pass; after all, that is a rather small proportion. However, one must also consider the purpose or use. Is it used for comment, criticism or review? Do advertising agencies put music in adverts for the purpose of commenting on the music, criticizing the music or reviewing it? I would think not. If any comments or reviews are being made at all, they are made in respect of a product not being that music itself. The Copyright Act states purposes which may qualify as fair dealing. These are research or private study, criticism or review and reporting current events. It suffices to simply say that when portions of music are used in the making of an advert, they are not used to serve any of these purposes and the fact that minimal portions are used will not qualify as fair use or fair dealing. Rather, they are used to serve commercial purposes to make the public and potential customers pay more attention to the advert, fancy the advert, sustain interest in the advert and subconsciously transfer any interest or appreciation for the music to the advertised product or even generate new interest in the advertised product. The music can also help to sustain existing interest in the product. The aim of the entire process is to increase sales and this purpose can certainly not be said to have been the intention or the meaning of the second schedule of the Copyright Act, 2004.
Justin Ige can also be reached via email@example.com or 08023897112. This article contains general information only and is not intended to replace legal counsel. First written and published online on 29 November 2010.