People often ask me: How much use of a work in which copyright subsists will make an unauthorized user, an infringer of copyright?

The right of control which belongs to the owner of copyright in a literary work, musical work, artistic work, cinematograph film or video is with respect to the whole or a substantial part of the work, either in its original form or in any form recognizably derived from it. In clear terms, such a copyright owner has control over the use of either the whole work or a substantial part of his work.

Emphasis is that such use will be, either in the original form or some other form that can be recognized as having been derived from the original. You may then ask: How is it to be determined that a ‘substantial part’ of a work has been used?

The term; ‘substantial part’ may have been first incorporated into the English Copyright Act of 1911 and accords with prior decisions of English courts. Even before 1991, the courts in England had consistently taken the position that copyright is not only infringed by the unauthorized use of the whole work, but by the unauthorized use of a substantial part of the work.

In the 1884 English case of Ager v. Peninsular & Oriental Steam Navigation Company, Justice Kay said emphatically: “To multiply copies of a material portion of a work which is entitled to copyright is as much a breach of the law, though differing in degree, as to multiply copies of the whole work”.

In an earlier case of Chartterton v. Cave, Lord O’ Hagan stated the law like this: “To render a writer liable for literary piracy, he must be shown to have taken a material portion of the publication of another, the question as to the materiality being left to be decided by the consideration of the quantity and value which must vary indefinitely in various circumstances”.

Unauthorized use of a ‘substantial part’ does not only refer to quantity but to quality. In fact, some court decisions suggest that the quality of the part used may be more important than the quantity. Although no large quantity of a work may have been used, if the part used consists of the striking features, it may still be deemed to be a substantial part and the use may amount to an infringement.

For example, the chorus line of a six-minute song may only have a duration of five seconds. The unauthorized use of that chorus line may amount to an infringement if the chorus line is the ‘hook’ in the song. On the other hand, the unauthorized use of a two-minute verse of the same song, which verse is easily forgettable, may not be deemed to be an infringement. From the above illustration, it appears that every case must be determined by its peculiar facts.

In the English case of Hawkes & Sons (London) Ltd. v. Paramount Film Services Ltd only twenty seconds of a musical work was used while the whole of the work will normally take a band four minutes to play. The English court of Appeal still held that a substantial part had been taken and therefore, copyright had been infringed.

In another English case, Tinsley v. Lacy, Vice chancellor Sir W. Page Wood explained the issue in the following opinion: “The question of the extent of appropriation, which is necessary to establish an infringement of copyright, is often one of extreme difficulty; but in cases of this description, the quality of the work is more important than the proportion which the borrowed passages may bear on the whole work”

I have heard people suggest that 20% or 25% of an unauthorized use of a work must have occurred for it to be said that copyright has been infringed. I am yet to see any decision of any court or legislation to support such a position.

The just repealed Nigerian Copyright Act (C 28 LFN 2004) in Section 6(2) stated that an infringement is in respect of “the whole or substantial part of the whole” of a work “in its original form or in any form recognizably derived from the original” The same words are used in Section 36(2) of the new Act commonly referred to as the Nigerian Copyright Act 2022 which in fact has a commencement date of 17th March 2023.

From the discussion above, we must conclude that every case has to be determined by its peculiar facts. This is an example of the intriguing nature of copyright.


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