Fair Dealing in Nigerian Copyright Law: What Changed Under the 2022 Act

Fair dealing is the most practically significant exception to copyright protection in Nigerian law. It is where the exclusive rights of copyright owners give way to the public interest in access, education, criticism, and creativity. And it is the area where the Copyright Act 2022 makes its single most far-reaching change from the law that preceded it: a deliberate shift from a narrow, closed list of permitted purposes to an open, flexible standard capable of evolving with technology and social practice.

1. What Fair Dealing Is and Why It Exists

Fair dealing is a statutory defence to an act that would otherwise constitute copyright infringement. It does not license the use in advance; it provides, after the fact, a basis for saying that the use was lawful despite having been done without the copyright owner’s permission. The defence exists because copyright protection, however important to incentivising creative effort, cannot be absolute without producing consequences that a democratic society would not accept.

Without fair dealing, a teacher who reads aloud from a protected poem in a classroom is technically infringing. A newspaper journalist who quotes three sentences from a politician’s published memoir to report on a political controversy is technically infringing. A law student who photocopies a chapter of an intellectual property textbook for personal exam revision is technically infringing. These uses do not damage the copyright owner’s market. They serve the public interest in education, journalism, research, and commentary. Fair dealing is the law’s recognition that protecting those uses from the copyright monopoly is worth the reduced exclusivity it creates for rights holders.

The theoretical foundation connects directly to the utilitarian theory of intellectual property discussed in What is Intellectual Property Law in Nigeria?: copyright protection is justified only insofar as it incentivises creation. Uses that do not substitute for the original work, that do not deprive the rights holder of a market they would otherwise have, and that serve genuine public purposes do not undermine the incentive rationale for copyright. Fair dealing carves out space for them.

2. The Old Law: What the Closed List Said and What It Left Out

The Copyright Act Cap C28 LFN 2004 placed fair dealing in the Second Schedule, listed as a set of specific permitted acts. Fair dealing was recognised only where it was done “for purposes of research, private use, criticism or review or the reporting of current events.”¹ This was a closed list. A use that fell outside these five named purposes was not capable of attracting the fair dealing defence, however reasonable, however non-commercial, and however clearly it served the public interest, unless it happened to fit within one of the other specific permitted acts also listed in the Second Schedule.

The practical consequences of this closed approach were significant. Parody and satire were not expressly included, meaning that a comedian who created a parody of a Nigerian musician’s song for social commentary purposes, one of the most clearly socially valuable forms of creative expression, had no explicit safe harbour. Transformative artistic works that combined, reused, or commented on copyrighted material outside the five named categories were potentially infringing. Digital uses like browser caching, transient copies in streaming, and cloud processing were entirely outside the Second Schedule’s contemplation, having not existed in any meaningful form when the framework was designed. The rapid growth of Nollywood, Afrobeats, and social media content creation in Nigeria had simply outgrown the narrow framework the Second Schedule provided.

3. The 2022 Act’s Open Provision: The Single Most Important Change

Section 20(1)(a) of the Copyright Act 2022 resolves the closed list problem with a surgical two-word addition. Rather than permitting fair dealing “for purposes of research, private use, criticism or review or the reporting of current events,” the new provision permits fair dealing “for purposes such as” those listed.²

Those two words, “such as,” transform the entire character of the provision. The list becomes illustrative, not exhaustive. A use that does not appear anywhere in section 20(1)(a)’s named purposes can still qualify as fair dealing, provided that the nature and character of the use is sufficiently analogous to the named purposes and that the four-factor analysis discussed below supports a finding of fairness. The provision is flexible by design, and the design is deliberate: the 2022 Act was drafted specifically to future-proof Nigerian copyright law against the kind of technological change that had already made the old closed list inadequate.

Nigeria in adopting an open fair dealing provision joins a group of African countries, including Uganda (2006) and Israel (also with an open fair use provision), that have moved away from the traditional Commonwealth closed-list approach.³ The same open provision drew fierce opposition from the copyright industries when proposed in South Africa; in Nigeria, it passed with comparatively little public resistance, reflecting a legislative judgment that Africa’s most significant creative economy needed maximum flexibility to participate in a global digital market.

4. The Named Purposes in Section 20(1)(a)

Even though the list is open-ended, the Act names specific purposes that will qualify as fair dealing, and understanding each named purpose precisely is essential for examination answers.

Private use covers the reproduction of a copyrighted work for the personal, non-commercial use of the person making the copy.⁴ The law student who photocopies a chapter from a textbook for personal revision is acting within this named purpose. A person who downloads a song for personal, offline listening, where they have not purchased a licence, occupies more ambiguous territory, but the private use purpose is the most relevant one to reach for.

Parody, satire, pastiche, or caricature is the named purpose with the most far-reaching consequences for Nigerian creative practice, and it is expressly new.⁵ The old Act had no provision for parody, meaning that social media accounts, comedy sketch channels, and satirical publications that built on existing copyrighted works had no clear legal footing. The 2022 Act changes this. A YouTube comedian who creates a satirical remix of a Nollywood film to mock a social trend, or a political cartoonist who parodies an Afrobeats hit in a critique of the entertainment industry, now has a named statutory basis for that use.

Non-commercial research and private study is essentially the old research and private use category, refined by the addition of the “non-commercial” qualifier.⁶ Academic research, student work, and personal intellectual inquiry that do not generate commercial profit are within this purpose. A postgraduate student who reproduces journal articles and book chapters for a dissertation that will not be commercially published is firmly within this named purpose.

Criticism, review, or the reporting of current events continues from the old law, subject to the requirement that the work and its author are acknowledged.⁷ A newspaper that reviews a novel and quotes passages to support the review is within this purpose. A television documentary that analyses the visual language of a Nollywood director’s films and includes clips to illustrate the analysis is within this purpose. A social media journalist who quotes lyrics from an Afrobeats song to report on the controversy surrounding them is within this purpose.

Education is addressed in greater detail in the specific exceptions under sections 21 to 23, covering acts done for the purposes of instruction or examination, recording of broadcasts by educational establishments, and restrictions on reprographic copying by educational institutions. These provisions expand significantly on what was available under the old law.⁸

Beyond these named purposes, the Act also specifically includes within its exceptions: public interest uses under government or library direction (section 20(1)(f)); archival and library uses for preservation and research (section 25); accessible format copies for blind and print-disabled persons under the Marrakesh Treaty framework (section 26); transient and incidental copies that are integral to a technological process (section 20(1)(k)); and the use and archiving of computer programs (section 20(2)).⁹

5. The Four-Factor Test: How Courts Will Decide

Section 20 of the 2022 Act introduces, for the first time in Nigerian copyright law, a four-factor test for courts to apply in determining whether any particular use of a copyrighted work qualifies as fair dealing.¹⁰ These four factors are borrowed almost verbatim from section 107 of the United States Copyright Act of 1976, though their context and application in Nigeria will ultimately be developed through Nigerian judicial interpretation.

Factor one: the purpose and character of the use. Courts will examine what the use was for and how the user dealt with the work. Uses that are transformative, meaning that they add new expression, meaning, or message to the original rather than simply reproducing it, are more likely to be fair than uses that are merely reproductive. A parody that uses a musical work to make a social commentary is more likely to be fair than an album that directly reproduces the same musical work as filler. Non-commercial purposes generally weigh in favour of fairness; commercial purposes weigh against it, though commercial character alone is not determinative.

Factor two: the nature of the copyrighted work. Courts consider what kind of work is being used. Factual works, such as news reports, reference books, and databases, attract somewhat less protection than purely creative works, such as novels, musical compositions, and artistic works. Using a factual work without permission is more readily excusable than using a fictional one, because the public interest in free flow of factual information is stronger and the copyright owner’s creative investment in pure factual accuracy is, by definition, limited.

Factor three: the amount and substantiality of the portion used. Courts examine both the quantitative portion of the original work taken and the qualitative significance of that portion. As discussed in Economic Rights of Copyright Owners in Nigeria in the context of the “substantial part” doctrine, taking a small amount of a work can still weigh against fair dealing if what was taken was the most distinctive or valuable portion. A filmmaker who reproduces thirty seconds of a three-minute song but those thirty seconds are the most recognisable chorus has taken a qualitatively substantial portion even though the quantity is minimal.

Factor four: the effect on the potential market or value of the copyrighted work. Courts consider whether the use substitutes for or suppresses the market for the original work. If the fair-dealing use directly reduces the rights holder’s revenue by serving as a free substitute for a licenced copy, this factor weighs heavily against a finding of fairness. If the use serves a market the rights holder has not licensed and has no realistic prospect of licensing, this factor weighs in favour of fairness. The most important sub-question here, adopted from US fair use jurisprudence, is not only the actual harm but the potential harm: would widespread adoption of the same use cause substantial harm to the rights holder’s market even if the individual instance does not?

These four factors are not exhaustive, and courts are not required to give them equal weight. The Act says they are matters “to be taken into account,” leaving courts with genuine interpretive discretion about which factors are most significant in any particular case.¹¹

6. The “Fair Use” vs “Fair Dealing” Labelling Problem

Several commentators, including some respected Nigerian law firms, have described the 2022 Act’s new provision as adopting “fair use” from the United States.¹² This is understandable given the explicit borrowing of the four-factor test from the US Copyright Act. But the 2022 Act itself consistently and deliberately uses the phrase “fair dealing,” not “fair use,” and students should understand why this terminological precision matters rather than treating the two phrases as interchangeable.

True US-style fair use is fully open: any use can qualify, regardless of its purpose, if the four factors support it. The US statute lists illustrative purposes, including commentary, criticism, news reporting, and research, but these are truly illustrative; a use for none of these purposes can still be fair use under US law if the factors weigh strongly enough in its favour.¹³ Nigerian fair dealing under the 2022 Act, while now open-ended in a way it never was before, is still anchored in the concept of dealing for recognised purposes. The four factors assist in determining whether a use falling within or analogous to the named purposes qualifies as fair. One commentator notes that “unlike the US ‘fair use’ clause, there are no consumptive uses that are listed as permissible purposes,” suggesting the Nigerian provision may be even more permissive in some respects.¹⁴ But the framing is still dealing for defined purposes, not a free-standing inquiry into the fairness of any use whatsoever.

For an examination answer, using the term “fair use” when describing Nigerian copyright law is technically imprecise. The Nigerian provision is “fair dealing,” modelled on US fair use factors but operating within a fair dealing framework. This distinction is not pedantic; it determines how broadly courts should interpret the scope of the defence.

7. Contractual Override Protection: A Genuinely Significant New Provision

Section 20(3) of the 2022 Act provides that any term in any agreement, including a publishing contract, a streaming licence, a software end-user licence, or any other contractual arrangement, that purports to restrict or prevent a person from doing any act permitted by the fair dealing exceptions in Part II of the Act, is void.¹⁵ The fair dealing exceptions cannot be contracted away.

This provision is both novel and practically significant. In the digital marketplace, contracts routinely restrict what users can do with content far beyond what copyright law itself requires. A streaming service’s terms of use might prohibit downloading for offline use even in jurisdictions where private copying is a permitted act. A publisher’s licence might prohibit any reproduction of a textbook chapter even for non-commercial research purposes. Without a provision like section 20(3), these contractual restrictions, though arguably inconsistent with the public policy behind fair dealing, would be enforceable as a matter of contract law even where they effectively nullified a statutory exception. Section 20(3) removes this problem by making such terms void rather than merely unenforceable.

This provision has obvious implications for Nigerian students and researchers who access academic content through university licences, and for Nollywood and Afrobeats creators who work within platform terms of service. A contractual clause that attempts to prevent the making of a parody, or the reproduction of a work for non-commercial educational purposes, now has no legal force in Nigeria.

8. The Berne Three-Step Test and International Calibration

Section 20’s open fair dealing framework must be understood in relation to the Berne Convention’s three-step test discussed in International Copyright Conventions and Nigeria: Berne, Rome, UCC and TRIPS. Under Article 9(2) of the Berne Convention, member states may provide exceptions to copyright only in certain special cases, that do not conflict with the normal exploitation of the work, and that do not unreasonably prejudice the legitimate interests of the author.¹⁶

The four-factor test in section 20 is Nigeria’s statutory mechanism for operationalising this international standard. Factor four, the effect on the market or value of the work, directly maps onto the Berne requirement that normal exploitation must not be conflicted. Factor one, the purpose and character of the use, maps onto the requirement that the case must be “special.” The result is a domestically administered test that, if correctly applied, keeps Nigerian fair dealing within the boundaries Berne permits.

The potential tension is at factor two, the “purposes such as” openness. Critics of open fair dealing provisions have argued that an unrestricted open list might allow courts to find fairness in cases that would fail the Berne three-step test’s “certain special cases” requirement, because an open list is by definition not confined to special cases. Proponents respond that the four factors, particularly factors three and four, are rigorous enough to screen out uses that would conflict with normal exploitation or unreasonably prejudice rights holders. This debate has not been resolved by any authoritative international ruling, and Nigerian courts applying section 20 for the first time will be navigating it without domestic precedent to guide them.

9. The Constitutional Dimension: Section 39 and Section 44

The fair dealing provisions are the primary constitutional mechanism by which copyright law, which restricts the section 39 freedom of expression by giving copyright owners control over how their creative expression is used, is kept in proportion. Fair dealing carves out the space where freedom of expression, education, and access to information must be allowed to operate even at the expense of the copyright owner’s exclusive control.

Section 20(3), making contractual override of fair dealing void, is particularly important for this constitutional analysis. It means that even where a user has agreed, by contract, to waive a statutory fair dealing right, that waiver has no effect in Nigerian law. This gives the public interest dimension of section 39 a kind of primacy over private contractual arrangements in the specific context of copyright exceptions. The result is that section 39’s values are given effect not merely through the statutory exception itself but through the express voiding of any attempt to bargain away the exception.

Section 44 of the Constitution is relevant from the opposite direction. Copyright owners whose economic rights are significantly curtailed by an expansive application of fair dealing under the open provision might argue that an overly broad judicial interpretation of section 20 amounts to a form of compulsory taking of intellectual property without compensation. This is a theoretical argument that will become more pressing as Nigerian courts develop their approach to the four-factor test and as individual decided cases begin to define how far the open provision actually extends in practice.

10. No Case Law Yet: The Most Honest Thing the Article Can Say

Section 20 of the Copyright Act 2022 commenced in March 2023. At the time of writing, there is no reported Nigerian judicial decision applying the four-factor fair dealing test under the new Act. This is an unprecedented situation in terms of the doctrinal analysis Nigerian copyright law will need: a provision lifted almost verbatim from US copyright law, in a country whose judiciary has no tradition of US-style fair use analysis, and where the underlying jurisprudential culture is more naturally inclined toward the conventional Commonwealth fair dealing approach.

Courts will inevitably look to US case law as a starting point for interpreting the four factors, since that is where the factors originate. The US doctrine of transformative use, first articulated as a distinct analytical category in Campbell v. Acuff-Rose Music Inc., holds that a use is more likely to be fair when it transforms the original by adding new expression or meaning rather than merely reproducing it.¹⁷ Whether Nigerian courts adopt the transformative use framework, or take a more restrained approach to the new provision, will shape the practical scope of Nigerian copyright law for a generation. Students who understand this uncertainty and can articulate it honestly, rather than asserting a confident rule the courts have not yet provided, will demonstrate a significantly stronger command of the current state of Nigerian copyright law than those who do not.

11. Problem Question Framework

When a problem question raises a fair dealing issue, work through it as follows.

Confirm that the act done would otherwise be an infringement. Fair dealing is a defence to infringement, not a standalone right. The first step is to establish that the defendant did something within the copyright owner’s exclusive rights under sections 9 to 13, and then to consider whether fair dealing applies.

Identify which of the named purposes in section 20(1)(a) the use most closely corresponds to, or, if it does not correspond to any named purpose, explain why it is analogous to one. The named purposes are: private use; parody, satire, pastiche, or caricature; non-commercial research and private study; criticism, review, or reporting of current events. If the use falls within a different specific exception in sections 20 to 27, apply that provision directly.

Apply the four factors in sequence. Analyse each factor separately and reach an assessment of whether each one favours or weighs against a finding of fair dealing. Then weigh the four factors together and reach an overall conclusion.

Check section 20(3) if any contractual term is in play. If the defendant is being sued for breach of contract in addition to, or instead of, copyright infringement, and the contractual term purports to prevent a fair dealing act, that term is void.

Acknowledge the absence of Nigerian case law under the new Act. A strong answer will note that no Nigerian court has yet applied the four-factor test under the 2022 Act, will identify the closest available guidance from comparable jurisdictions, particularly US fair use decisions, and will assess the likely outcome on the facts given rather than asserting a certain result.

12. Common Student Mistakes

Applying the old Act’s closed list to a question on current Nigerian copyright law. The Second Schedule’s closed list of permitted purposes has been replaced by the open provision in section 20(1)(a). Fair dealing is no longer confined to the five named purposes of the old Act. An answer that treats the old categories as exhaustive of what fair dealing permits misses the most significant reform the 2022 Act introduced.

Calling the provision “fair use” rather than “fair dealing.” The 2022 Act uses “fair dealing” throughout. The four-factor test is borrowed from US fair use law, but the Nigerian provision has a different name, a different framing, and will develop through Nigerian judicial interpretation rather than wholesale adoption of US case law.

Treating the four factors as individually determinative. No single factor decides the fair dealing question. All four factors must be considered, and their relative weight will vary with the facts. An answer that finds factor four (market impact) to favour the copyright owner and concludes on that basis alone that fair dealing fails has not completed the analysis.

Forgetting that acknowledgment is required for criticism, review, and current events reporting. Where a use is for criticism, review, or reporting of current events, section 20(1)(a) requires sufficient acknowledgment of the work and its author. An otherwise fair use for criticism that fails to credit the work may lose the defence on this point.

Ignoring section 20(3) and contractual restrictions. Where a defendant has signed a contract restricting their use of a copyrighted work, students often treat that contract as determinative of the copyright question. Section 20(3) makes a contractual term void to the extent it restricts a fair dealing act. The contract and the copyright analysis must be kept separate.

13. Quick Reference Table

14. Key Cases

Guobadia D.A., ‘Fair Dealing and Copyright in Nigeria’ (1989) is the foundational academic treatment of fair dealing under the old Nigerian copyright framework, establishing the principle that the doctrine requires dealing with the work “genuinely and reasonably” for a qualifying purpose, a formulation courts applied under the old Act.

Campbell v. Acuff-Rose Music Inc., 510 US 569 (1994) (United States Supreme Court) is the leading authority on the four-factor fair use test under section 107 of the US Copyright Act, from which the 2022 Act’s four factors are borrowed. The US Supreme Court held that parody is a protected fair use, that commercial character is not automatically fatal to a fair use defence, and that the transformative nature of a use is highly relevant to the first factor. While this decision does not bind Nigerian courts, it is the most directly relevant precedent for the interpretation of the four factors and is likely to be the starting point for any Nigerian court approaching section 20 of the 2022 Act for the first time.

Hubbard v. Vosper (1972) 2 QB 84 (England and Wales) laid out the classical Commonwealth approach to fair dealing, holding that fairness is a matter of degree and impression, and that courts must consider the extent of the dealing, the purpose for which it is done, and whether there is competition with the original. This decision informs the prior Nigerian judicial understanding of fair dealing and remains relevant as a point of contrast with the more structured four-factor approach the 2022 Act now prescribes.

Footnotes

¹ Second Schedule, Copyright Act, Cap C28, Laws of the Federation of Nigeria 2004 (repealed).

² Section 20(1)(a), Copyright Act 2022; Jonathan Band, ‘New Nigerian Copyright Act Creates Open Fair Dealing Exception’ infojustice.org (March 2023), explaining the significance of the “purposes such as” formulation.

³ Band (n 2), noting that an open fair dealing provision by Africa’s largest film and music producer should encourage other African countries to adopt similar frameworks.

⁴ Section 20(1)(a)(i), Copyright Act 2022.

⁵ Section 20(1)(a)(ii), Copyright Act 2022; Banwo and Ighodalo, ‘Modifications to Fair Dealing and Other Exceptions Under the New Copyright Act’ (2024), identifying parody, satire, pastiche, and caricature as a new named purpose expressly not present in the old Act.

⁶ Section 20(1)(a)(iii), Copyright Act 2022.

⁷ Section 20(1)(a)(iv), Copyright Act 2022.

⁸ Sections 21 to 23, Copyright Act 2022.

⁹ Sections 20(1)(f), 20(1)(j), 20(1)(k), 20(2), 25, and 26, Copyright Act 2022; Jonathan Band, ‘Nigeria’s New Copyright Act 2022: How Libraries Can Benefit’ infojustice.org (April 2023).

¹⁰ Proviso to section 20(1)(a), Copyright Act 2022; Omaplex Law Firm, ‘Fair Use and Fair Dealing: An Analysis of Copyright Law in Nigeria’ (2024), describing the four factors.

¹¹ Proviso to section 20(1)(a), Copyright Act 2022 (factors “to be taken into account”).

¹² Banwo and Ighodalo (n 5), describing the new provision as adopting “the fair use doctrine from the United States copyright law.”

¹³ United States Copyright Act of 1976, section 107.

¹⁴ OAL, ‘Notable Provisions of the Copyright Act 2022’ (2023), observing that the Nigerian provision differs from the US fair use clause in that there are no consumptive uses listed as permissible purposes.

¹⁵ Section 20(3), Copyright Act 2022; Band (n 9), identifying section 20(3)’s anti-override provision as protecting copyright exceptions from contractual terms.

¹⁶ Article 9(2), Berne Convention for the Protection of Literary and Artistic Works.

¹⁷ Campbell v. Acuff-Rose Music Inc., 510 US 569 (1994).