A person has exclusive right over the use of his copyrighted work. Before anyone can already use of such copyrighted work,he need to seek and obtain approval for the usage of such copyrighted work from the copyright owner. Any usage of the copyrighted work without the approval of the owner would constitute an infringement of Copyright. This represent the general principle of Law.

As it know where There is a general legal principle ,there is always an exception. There are certain exceptions to the exclusive right granted by copyright Law to the copyright owner.One of such exception is the concept of FAIR DEALING. It is similar to Fair Use which is applicable in the United state.

Fair dealing is where the Law permits copyright infringement for the purpose of criticism, review,or non commercial research. It is when the law allows the use of a copyrighted work without necessarily the consent or approval of the copyright owner.

The concept of Fair dealing is a judge made concept and Thus reliance is placed on judicial pronouncements. However it has found it way into the statutes. In Nigeria,the provision for Fair dealing is contained in Schedule 2(a) of the Copyright Act.

The concept of fair dealing is a defence for infringement of copyright. This defence can only arise once the issue of copyright infringement has been established. The onus of proof is on the plaintiff (the copyright owner)to prove that a copyright infringement has been committed.

Where the plaintiff could not establish that there have been copyright infringement, the defendant need not established the defence of Fair dealing.Once copyright infringement had been established, the burden of proof shifts to the defendant to establish the defense of Fair dealing.

Fair dealing can take different forms and they include where the infringement is for the purpose of Criticism ,Research,Commenting,Teaching . In Section 107 of the American Copyright Law,it provide that "the Fair use of a copyright work for the purpose of criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright ".

There are certain factors to be considered in determining whether there is Fair dealing or not.They include:

  • PURPOSE AND CHARACTER OF THE USE: The question to be asked is for what purpose is the copyrighted work been used for?is it to compete with the original work in term of income generation or for complementary of the original work ?is it used for commercial purpose or for non profit educational purpose?where the act which is said to be an infringement is for profit making then the court will construe that as not been a Fair dealing.

  • THE NATURE OF THE COPYRIGHT WORK: If the defendant revivified and reorganize the work,the court would likely construe that as been Fair than where no modification was made.Where the defendant adds new substance or expand the work such would be construe as a Fair dealing.

  • AMOUNT AND SUBSTANTIALITY OF THE PORTION TAKEN: Where a large portion of the original work is used which constitute the main idea or purpose of the original work, the court may construe that to be an unfair dealing. How ever where a little portion of the original work is taken and improvement is made on it without affecting the original work the court may construe that as been a Fair dealing.

  • The EFFECT OF THE USE: One important question the court must address is whether the use of the original work is to compete with the original work or to complement it thereby adding to the field of Knowledge.

  • PUBLICATION: The court would consider whether the original work has been published that is made available to the public.where the original work has not been made available to the public,such will not constitute a Fair dealing. In ASHDOWN V. TELEGRAPH GROUP LTD,the court held that the court bears in mind that the consideration of public interest is paramount.

According to Lord Denning in BRADBURY V. HOTTEN, in determining what constitute Fair dealing "must be a matter of impression ". There is no hard and fast route to determine what constitute Fair dealing. It is all based on the Judges impression. In HYDE V. PARK, the court held that in determining "fairness ",the court must judge the fairness by the objective standard of whether a fair minded and honest person would deal with the copyright work in the manner in question.Each case is to be determined based on it's own facts and circumstances.