By Prince I. Ubochi

‘FAIR USE/DEALING’ AS A DOCTRINE UNDER COPYRIGHT

What is copyright?

Copyright is the exclusive right to do, or to control or authorize the doing of certain acts in relation to the work in which the right subsists. Relevant laws in varied countries define what copyright means. For instance, see: Adenuga v. Ilesanmi Press Sons (Nig.) Ltd (1991) 5 NWLR (Pt. 189) 82.

THE GOAL OF COPYRIGHT PROTECTION

It has been observed by the United States District Court in Gero v. Seven Up Company 535.212, 215 USPQ 512, that the goal of copyright protection is to encourage dissemination of ideas by protecting the embodiment or expression of an idea in a creative work and reserving the right in it to the creator of the work.

Interestingly, this article shall deviate from the general rule as observed in the case above as regards reserving the right in a creative work to the creator of the work, and seek to appreciate one of its limitations.

Among other exceptions to the rights granted by copyright which is not my focus in this piece, I shall be creating a clear picture of why ‘fair use’ as a doctrine is really cardinal and should be respected.

What is the doctrine of ‘fair use’ all about?

The doctrine of ‘fair use’ exists to permit others make reasonable use of a work, whether: literary, dramatic, musical or artistic, thus allowing a competing author’s use of a work protected by copyright in creating another work.

In my book, the introduction of the doctrine of ‘fair use’ in Intellectual Property is calculated to ensure fair access to created works. Rubin (2000) asserts that when an individual makes a copy under the ‘fair dealing’ doctrine, he or she is not required to get permission from the copyright owner.

As a matter of fact, where a work is used for the purpose of research, private use, criticism or review or reporting of current events, there is no question of infringement of the copyright in such a work provided the use is by way of fair dealing (Uviegbara, 1992).

In furtherance, the shield-doctrine of ‘fair use’ serves as a defense against a claim of copyright infringement. It exists to encourage innovation, creativity, and development. The doctrine of ‘fair use’ is important; this is because new works are expected to be born from existing works, as it is impractical to make any progress in research in a field of knowledge without recourse to what has been done in that field of knowledge before the current research. In fact, the rationale behind the doctrine of ‘fair use’ is basically to increase reasonable access to copyrighted works. It is certainly not a defense for cheaters to make profits from another person’s hard work and innovation.

At this juncture, I shall be considering the case which led to the writing of this article in the first place.

In the matter between Oracle v. Google, a lawsuit was filed in 2010 by Oracle (Silicon Valley giants) seeking billions from Google over its use of Java programming language in its Android mobile operating system. Oracle alleged strongly that Google’s ‘software interface’ unfairly used Java code. According to facts, in 2010, Oracle obtained the rights to Java when it acquired Sun Microsystems.

The lone issue for determination with respect to the facts of the case mentioned above is as to whether Google can hide under the umbrella of ‘fair use’ as a doctrine in Intellectual Property?

I answer in the affirmative.

For ‘fair use’ to ground a basis for a court’s decision, courts have to balance the purpose and character of the use as against some other factors, viz:

Transformative uses: Although the purpose and character of the use of Oracle’s Java programming language in its Android mobile operating system has a commercial flavour, the use of the said Java programming language by Google can still be considered fair. Transformative uses are more likely to be considered fair; they are those uses that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
Amount and substantiality of the portion used in relation to the copyrighted work as a whole: Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. Notwithstanding the fact that a large portion of the copyrighted work was used as the facts of the case under consideration may present, it is primarily to the benefit of the public interest and only secondarily to the benefit of the author.
Effect of the use upon the potential market for or value of the copyrighted work: Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.
Albeit, the nature of the copyrighted work in question paints a picture of using a more creative or imaginative work, I align myself with the argument of Google and many Silicon Valley allies that extending copyright protection to bits of code, called application programming interfaces, or APIs, would threaten innovation in the fast-evolving digital world.

In addition to the above, other factors may also be considered by a court in weighing a ‘fair use’ question, depending on the circumstances. Courts evaluate ‘fair use’ claims based on the peculiarities of a matter. This means that there is no water-tight formula to ensure that a predetermined percentage or amount of a work, or specific number of words, lines, pages, copies – may be used without permission.

CONCLUSION

Considering the facts of the case under review, arguments and reasons given, Google can confidently stand under the umbrella of ‘fair use’. I designate the write-up above as my views. I am positive that the court will rule in favour of Google, though not certain. All errors, if any, are mine.

My authorities are:

Case laws
Legislations
Secondary sources of Law

This article was written by Prince I. Ubochi

The writer is a 500 level Law student of Ebonyi State University. He can be reached via email @ princeituma1@gmail.com or itumaprince@gmail.com, or called @ +2347065434356

You can connect with him too on Linkedin @ https://www.linkedin.com/in/prince-ubochi-7b6bb2172