Possible Defences to Copyright Infringement – Miracle Akusobi

Miracle Akusobi Esq.

Copyright Law protects expression of ideas and not the ideas themselves. It protects creative expression that has been reduced to a tangible forms. Copyright is one among the intangible, incorporeal, invisible and abstract proprietary rights granted by law to the author or originator of a tangible, corporeal, visible and real object.

The primary object of copyright protection is not to inhibit the free flow of information and ideas but to promote the public welfare by the advancement of knowledge with specific intent to encourage the production and distribution of new works for the public.

The subject matter of copyright includes literary works, musical works, artiste works, cinematographic films, sound recording, and Broadcast.

Copyright infringement occurs when a person, without the license of the Copyright owner causes any other to do any of the acts received to the Copyright under the Act.

These infringements may take place through reproduction, publication, public performance, adaptation, Commercial distribution, broadcasting or dealing with the infringing copies of a work without the consent of the Copyright owner. This means for Copyright infringement to take place the owner of a copyrighted work will need to establish that the person, without his or her consent copied the work or issued copies of his work to the public or rented or lend it to the public or performed or showed his work in public or communicated it to the public

The Copyright laws have room for exceptions, exemptions and Defences. There are possible legal and equitable defences to Copyright infringement. These includes:

  1. Fair Use or Fair Dealing – Fair Use or Fair Dealing is when the use of the copyrighted work is fair and not for the purpose of commercial gain even if the use of the work would be considered infringement. Fair Use is a statutory defence which allows the use of a copyrighted work for the purposes such as criticism, comment, news reporting, teaching, scholarship or research.
  2. Lack of Originality — In the context of copyright law, original means that the work was independently created by the author and that it possesses at least some minimal degree of creativity. Examples of circumstances that undermine a claim of  originality are the use of common musical elements or devices, common phrases etc.When there is significant probative evidence that the infringing work was independently created.
  3. When the Copyright owner authorized the use of his work in a license.
  4. When the infringer had no reason to know the work was protected by Copyright.
  5. When the contents of the Original work are in the public domain, then a claim of copyright is improper.
  6. If what was copied was not protectable, such as copying just the facts from a work and not protected expression.
  7. Where the copyrighted work was not properly registered thus making the court to lacks jurisdiction to hear the case.
  8. Where the Copyright has expired or the holder has forfeited or abandon his or her rights in the work.
  9. When too much time has elapsed between the infringing act and the lawsuit.
  10. When the similarities between two works are traceable to a common source, such as pre-existing  musical work or screenplay.
  11. Where there is a Misuse of the work by the owner.
  12. When the work has been copied for the purposes of instruction and examination. A qualification on this however, is that it must not be for commercial purposes and the author must be given sufficient acknowledgment.
  13. Non-profit making Libraries are allowed to make copies to supply to people for research of private study.
  14. Infringement may be exempted on the grounds that it is in the public interest. Examples of this are where a material may be injurious to public life, public health and safety or the administration of justice.
  15. Unclean Hands, Acquiescence, Estoppels are equitable defences to Copyright infringement.
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NOTE: Innocent intent is not a good defence to infringement, it may, however, bear upon the remedies available against the Defendant. However, the claims of innocent infringement are cut off if the work contains a notice of copyright.

By: Miracle Akusobi, Esq.



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