Analysis of the Doctrine of Fair Use/Fair Dealing in Modern Copyright Law in Nigeria

ABSTRACT

The doctrine of fair dealing (or fair use) serves as a crucial mechanism for balancing the exclusive rights of copyright owners with the public interest in access to knowledge, education, and culture. This article provides a comprehensive analysis of the fair dealing doctrine under Nigerian copyright law, with particular focus on the transformative reforms introduced by the Copyright Act of 2022. It examines the statutory framework, including the expanded list of permitted purposes under section 20(1) and the newly adopted four‑factor test modelled on United States fair use jurisprudence. The article notes the absence of robust judicial precedent, the uncertain application of fair dealing to generative artificial intelligence, and low public awareness of copyright exceptions as the major gaps. The article recommends developing clear guidance from the Nigerian Copyright Commission, training judges and practitioners, clarifying ambiguous statutory provisions, and encouraging institutional policies. While the 2022 Act marks a progressive shift, the effectiveness of the fair dealing doctrine ultimately depends on thoughtful judicial application, ongoing legislative adaptation, and widespread education.

Keywords: fair dealing, fair use, four‑factor test, transformative use, artificial intelligence, copyright exceptions.

Introduction

Copyright law is built on a delicate balance. On one hand, it gives creators exclusive rights over their works, allowing them to benefit both financially and morally from their creativity. On the other hand, the law must not go so far that it restricts access to knowledge, culture, and information, which are essential for societal progress¹. The doctrine of fair dealing (referred to as fair use in the United States) plays an important role in maintaining this balance. It acts as a safeguard by allowing certain uses of copyrighted works without the permission of the copyright owner, as long as those uses serve socially beneficial purposes². In Nigeria, there has been an ongoing challenge on how to create a copyright system that protects creators while still supporting activities like education, research, criticism, and public discourse.

This article provides a detailed analysis of the doctrine of fair dealing in Nigerian copyright law, with particular attention to the major reforms introduced by the Copyright Act of 2022. It examines the legal framework, considers how courts have interpreted fair dealing through key cases, and discusses the challenges and future possibilities in this area of law.

The Development of Fair Dealing Principle Under Nigeria Legal Framework

Before 2023, copyright in Nigeria was governed by the Copyright Act of 2004 (referred to as the “Repealed Act”). Under this law, fair dealing was recognised, but in a limited and rigid way. The Second Schedule of the Repealed Act contained a fixed list of permitted uses, such as research, private study, criticism, review, and reporting of current events³. These purposes were narrowly defined, and the law did not provide courts with enough guidance to interpret them flexibly. As a result, many uses that could benefit society especially in education, research, and creative work fell into a legal grey area. This uncertainty often discouraged educators, librarians, researchers, and even content creators from engaging in activities that would have been clearly allowed in more flexible copyright systems⁴.

A major shift occurred on 1 April 2023, when President Muhammadu Buhari signed the Copyright Act of 2022 into law⁵. This new law repealed the 2004 Act entirely. The 2022 Act represents a broad reform of Nigeria’s copyright system. It was designed to reflect current technological realities and to align Nigerian copyright law more closely with international standards. Part II of the Act (sections 20 to 27) deals with exceptions to copyright, and it is within these provisions that the most important developments in the doctrine of fair dealing can be found.

Fair Dealing Under Section 20 of the New Copyright Act

Section 20(1) of the 2022 Act⁶ sets out the general rule on fair dealing. It provides that the exclusive rights granted to copyright owners under sections 9 to 13 do not extend to certain acts carried out by way of fair dealing, as long as they fall within specified purposes. These purposes include:

1. private use
2. parody, satire, pastiche, or caricature
3. non-commercial research and private study
4. criticism, review, or reporting of current events
5. inclusion of artistic works located in public places in audiovisual works or broadcasts
6. incidental inclusion of artistic works in audiovisual content
7. quotations in the form of short excerpts
8. non-commercial reading or recitation of reasonable portions of published literary works
9. use by government authorities or recognised public institutions in the public interest
10. reproduction by broadcasting organisations for lawful broadcasts
11. dissemination of news of the day to the public
12. use for judicial or legislative proceedings, including reporting such proceedings
13. making up to three copies by public libraries where a work is not available for purchase
14. reproduction of unpublished literary or musical works for research or private study in accessible institutions like libraries and museums
15. temporary or incidental reproductions that are necessary for technological processes
16. use for parody, caricature, or pastiche

This list is much broader than what existed under the Repealed Act. Importantly, it introduces modern categories such as parody, satire, pastiche, and caricature, recognising that creative reinterpretation and commentary are valid forms of expression. Another key development is the inclusion of “private use” as a separate category⁷. This acknowledges that individuals should be able to use copyrighted materials in their personal lives without needing permission for every minor or everyday use. Overall, the 2022 Act reflects a more flexible and realistic approach to copyright, one that better accommodates both the rights of creators and the needs of the public.

The Four-Factor Test

One of the most important innovations introduced by the new law is the clear adoption of a multi-factor test to determine whether a particular use qualifies as fair dealing. Under section 20(1)⁸, courts are required to consider the following factors when assessing fairness:

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and importance of the portion used in relation to the entire work
4. the effect of the use on the potential market or value of the work

These four factors are closely modelled on the fair use test in section 107 of United States copyright law. In effect, the Nigerian law moves away from the traditionally rigid Commonwealth approach to fair dealing and adopts a more flexible, balanced method similar to that used in the United States⁹. This shift significantly changes how fair dealing is analysed in Nigeria. Under the repealed law, the question was straightforward: a use either fell within a listed purpose or it did not. The approach was strict and formal. Under the new law, however, the process is more nuanced. Even if a use falls within one of the recognised purposes, the court must still evaluate the four factors to decide whether the use is genuinely “fair,” both in quantity and in quality¹⁰. This allows judges to consider broader issues of fairness and justice, and to apply the law to new and evolving situations that the legislature may not have specifically anticipated.

Comparative Analysis with United States Fair Use Doctrine

The introduction of the four-factor test has brought Nigerian fair dealing much closer to the fair use system in the United States than to the traditional, stricter Commonwealth approach. Even so, there are still some important differences between the two systems¹¹.

First, under Nigerian law, a use must generally fall within a recognised purpose. Section 20(1) allows fair dealing “for purposes such as” those listed in the Act. The phrase “such as” suggests that the list is not closed, meaning other similar purposes could potentially be recognised. However, it is still unclear how willing Nigerian courts will be to accept purposes that are not expressly mentioned especially with the rule of interpretation that the express mention one thing is the exclusion of another.. In contrast, United States law does not require a use to fit into any predefined category¹². Although section 107 lists examples, these are only illustrative and not mandatory.

Second, both Nigerian and US law consider “the nature of the copyrighted work” as a factor. However, courts in the United States have developed detailed interpretations of this factor over time¹³. For example, they are generally more willing to allow fair use for factual or informational works than for highly creative works. Nigerian courts will need to gradually develop their own interpretations of this factor in a way that reflects local realities.

Third, US copyright law places strong emphasis on the idea of “transformative use.” Many leading cases in the United States focus on whether a new work adds fresh meaning, expression, or purpose to the original¹⁴. Nigerian law does not expressly mention this concept. However, the “purpose and character” factor in section 20(1) allows courts to consider similar ideas, and Nigerian judges may draw on the concept of transformative use as persuasive guidance when deciding cases.

Judicial Interpretation and Case Law

One difficulty in analysing fair dealing in Nigeria is the limited number of reported court decisions on the subject. The provisions under the repealed law were rarely tested in court, and the 2022 Act is still relatively new. While the Nigerian judiciary has yet to produce a deep body of law directly applying the four‑factor test under the Copyright Act 2022, several recent disputes  both in Nigeria and the United State offer important insights into how fair dealing might be analysed in practice.

1. Sir Jude Nnam v. Five Star Music Ltd & 2 Ors¹⁵

In this Nigerian case, the plaintiff claimed that the popular musician Kcee unlawfully sampled his 2001 composition “Som Too Chukwu” in Kcee’s 2021 album Cultural Praise Vol. 1. In September 2024, the Federal High Court dismissed the suit, holding that the plaintiff was not the originator of the composition,  the defendant argued that the work was adapted from an Igbo‑translated Bible. Although the case turned on insufficient evidence of ownership rather than fair dealing, it illustrates a scenario where a fair dealing defence could have been raised. Had the court reached the merits, Kcee might have argued that his use was transformative, by turning an older praise song into a modern medley for a new spiritual and cultural purpose. Under section 20(1)(a) of the New Act (parody, satire, pastiche, or caricature) and the four‑factor test, a Nigerian court would examine whether the new work served a different function, how much of the original was used, and whether it harmed the market for the original. This case thus highlights the fine line between legitimate creative reuse and infringement in Nigeria’s vibrant Afrobeat industry.

• Andy Warhol Foundation v. Lynn Goldsmith¹⁶

The US Supreme Court’s landmark decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith (2023) offers a cautionary tale. Warhol had transformed a photograph of the musician Prince into a silkscreen, but the Court held that the commercial licensing of that image to a magazine was not fair use. Even though the work was artistically transformative, it competed directly with the original photograph’s market for licensing. This ruling underscores a crucial point for Nigerian courts applying section 20(1)(d) of the New Act (effect on the potential market): transformative purpose alone is not enough. The commercial impact on the original work’s market must be weighed carefully. Nigerian judges may find this reasoning persuasive when deciding whether a transformative use, such as a sampled lyric or a parodic remix, actually substitutes for the original work in its primary market.

Challenges and Criticisms

Despite the significant improvements introduced by the 2022 Act, the fair dealing framework still faces a number of challenges.

1. Lack of Judicial Precedent

The most immediate issue is the absence of a well-developed body of case law interpreting the new provisions. Nigeria operates under a common law system, where judicial decisions play a key role in explaining and applying statutes. The four-factor test cannot be applied mechanically; it requires courts to balance different considerations in each case. Until courts have decided more cases, the outcome of fair dealing claims may remain uncertain. This uncertainty may discourage individuals and institutions from relying on fair dealing, even when their use might be lawful¹⁷.

• Fair Dealing and Artificial Intelligence

A major emerging issue is how fair dealing applies to artificial intelligence (AI). The Copyright Act 2022 was enacted before the rapid growth of generative AI, and it does not directly address the use of copyrighted materials for AI training. Scholars have pointed out that fair dealing rules were originally designed for human use and may not easily apply to large-scale data processing by AI systems¹⁸. For example, if an AI developer uses vast amounts of copyrighted material to train a model, it is unclear whether this would qualify as “non-commercial research” or be treated as a commercial activity. This uncertainty is important. It raises questions about whether new laws or amendments are needed. Some commentators suggest introducing specific rules for AI, including clear guidelines on data use and possible licensing systems to ensure that creators are fairly compensated.

• Awareness and Education

Another major challenge is the low level of awareness about copyright and fair dealing in Nigeria. Many people, including students, teachers, journalists, and small business owners may not fully understand their rights and obligations¹⁹. As a result, some individuals may avoid using materials even when the law allows it, while others may mistakenly assume their use is protected when it is not. This gap between the law and public understanding limits the effectiveness of the fair dealing provisions.

Policy Recommendations

Based on the issues identified above, several steps can be taken to strengthen the fair dealing system in Nigeria.

First, the Nigerian Copyright Commission should produce clear and accessible guidance on fair dealing. This could include simple explanations, practical examples, and sector-specific advice for education, journalism, research, and creative industries.²⁰ Public awareness campaigns would also help ensure that people understand how the law works in practice. Second, there should be more training for judges and legal practitioners on the four-factor test and on relevant international case law. This will help the judiciary develop consistent and well-reasoned decisions that can guide future users. Third, the legislature should consider clarifying certain unclear areas in the law. Issues such as the scope of recognised purposes, the meaning of “commercial” versus “non-commercial” use, and the relationship between fair dealing and moral rights could benefit from clearer statutory guidance²¹. As AI continues to develop, there may also be a need to update the law to address text and data mining more directly. Fourth, universities and research institutions should create internal policies to guide the use of copyrighted materials. These policies could include training programmes, clear procedures, and proper documentation practices to support reliance on fair dealing where necessary²². Finally, there should be ongoing review of how the law is working in practice. Periodic assessment will allow lawmakers to make adjustments in response to new technologies and judicial developments.

ConclusionThe Copyright Act of 2022 marks a turning point for copyright law in Nigeria. By expanding the scope of fair dealing, introducing a flexible four-factor test, and creating specific exceptions for libraries, educational institutions, and persons with disabilities, the law establishes one of the most forward-looking copyright systems in Africa. However, passing a progressive law is only the beginning. The real test lies in how it is applied. Key questions remain: will courts develop a clear and consistent approach to the four-factor test? Will users feel confident relying on fair dealing? And will the law keep pace with new developments such as artificial intelligence and digital learning? Fair dealing is essential because it balances the rights of creators with society’s need for access to knowledge. Nigeria has taken an important step by adopting a flexible and modern approach. The success of this approach will depend on the combined efforts of lawmakers, judges, legal professionals, educators, creators and the public.

^{1.Fehintola Sunmoni, ‘An Overview of Copyright Law in Nigeria’ (8 December 2023) SSRN <https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=4888743> accessed 30 April 2026}

^{2.  E Ogundari and OO Ogunwande, ‘An Examination of Fair Dealing Reformation in the Nigerian Copyright Act 2022’ (2025) 4(3) African Journal of Law and Justice System 77 <https://journals.co.za/doi/pdf/10.31920/2753-3123/2025/v4n3a4> accessed 30 April 2026}

 ^{3. Gabriel Okplogidi Raphael, ‘Assessment of Copyright, Fair Dealing and the Use of Mobile Phones for Access to Subscribed LawDatabases by Law Students in Academic Law Libraries in Nigeria’ (2024) 6 IRLJ 54 <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/inlrwolw6§ion=36> accessed 30 April 2026}

 ^{4. F Okpanachi Ekpa and Blessing Riche Kure, ‘Fair Dealing as an Exception to the Infringement of Copyright: An Obstacle to the Effective Enforcement of Copyright Claims in Nigeria’ (2015) 2 Idah Bar Journal of Contemporary Legal Issues 245 <https://www.researchgate.net/profile/Friday-Ekpa/publication/353221249_FAIR_DEALING_AS_AN_EXCEPTION_TO_THE_INFRINGEMENT_OF_COPYRIGHT_AN_OBSTACLE_TO_THE_EFFECTIVE_ENFORCEMENT_OF_COPYRIGHT_CLAIMS_IN_NIGERIA/links/60edb98e0859317dbddcf292/FAIR-DEALING-AS-AN-EXCEPTION-TO-THE-INFRINGEMENT-OF-COPYRIGHT-AN-OBSTACLE-TO-THE-EFFECTIVE-ENFORCEMENT-OF-COPYRIGHT-CLAIMS-IN-NIGERIA.pdf> accessed 30 April 2026}

 ^{5. Ibid}

  ^{6. Copyright Act No. 8 of 2022}

^{7.  Ikenna U Ibe and Noel N Udeoji, ‘The Transformative Use Doctrine and Fair Dealing in Nigeria Copyright System: A Review of US Supreme Court Decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith’ (2024) 6 IRLJ 46 <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/inlrwolw6§ion=11> accessed 30 April 2026}

 ^{8. Copyright Act No. 8 of 2022}

^{9.  Nikhil Viswam Menon, Karun Roy and Gowri R Parvathy, ‘Unravelling the Differences between Fair Use and Fair Dealing: Limitations to Copyright’ (2023) 3 Indian Journal of Integrated Research in Law 1 <https://ijirl.com/wp-content/uploads/2023/01/UNRAVELLING-THE-DIFFERENCES-BETWEEN-FAIR-USE-AND-FAIR-DEALING-LIMITATIONS-TO-COPYRIGHT.pdf> accessed 30 April 2026}

^10. Ibid

 ^{11. Desmond Oriakhogba and Faith O Osadolor, ‘Musings on the Fair Use and Fair Dealing Exceptions to Copyright: Nigeria and South Africa in Focus’ (2017) 8(1) Ebonyi State University Law Journal 141 <https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=3260666> accessed 30 April 2026}

 ^{12. Holger Postel, ‘The Fair Use Doctrine in the US American Copyright Act and Similar Regulations in the German Law’ (2005) 5 ChicagoKent Journal of Intellectual Property 142 <https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=1042&context=ckjip> accessed 30 April 2026}

 ^{13. Oksana V Lutkova, ‘The Fair Use Doctrine in the Contemporary US Copyright Law’ (2016) Law: Journal of the Higher School of Economics 186 <https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/pravo2016§ion=40> accessed 30 April 2026}

 ^{14. Taysir Awad, ‘Universalizing Copyright Fair Use: To Copy, or Not to Copy?’ (2022) 30 Journal of Intellectual Property Law 1 <https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1496&context=jipl> accessed 30 April 2026}

 ^{15. Suit No: FHC/L/CS/304/2021(https://pelicancrestlaw.com/2024/10/23/judgment-or-justice-nigerian-music-copyright-infringement-analysis-in-sir-jude-nnam-case)}

 ^{16. 143 S. Ct. 1258 (2023)}

 ^{17. Simon Kasimu Mokidi, ‘Challenges and Strategies for Enforcing Authors’ Economic Rights in Nigeria’ (2024) 8 AJLHR 1 <https://journals.ezenwaohaetorc.org/index.php/AJLHR/article/viewFile/2986/3119> accessed 30 April 2026}

^{18.  Pamela Samuelson, ‘Generative AI Meets Copyright’ (2023) 381(6654) Science 158 <https://math.arizona.edu/~klin/rtg-seminar/2025-02-10/Samuelson–gen-ai-copyright–science.adi0656.pdf> accessed 30 April 2026}

 ^{19. Michael D Murray, ‘Generative AI Art: Copyright Infringement and Fair Use’ (2023) 26 SMU Science and Technology Law Review 259 <https://papers.ssrn.com/sol3/Delivery.cfm?abstractid=4483539> accessed 30 April 2026}

 ^{20. Daniel Aloysius, Victoria David Jimmy, Itoro Effiong Ekanemesang and Ukeme Monday Udoikut, ‘Roles of Nigerian Academic Libraries in Creating Ethical Awareness and Fair Use Legislation of Digital Intellectual Property’ (n.d.) <https://scholarworks.sjsu.edu/cgi/viewcontent.cgi?article=15890&context=libphilprac> accessed 30 April 2026}

^21. Ibid

 ^{22. Efere John Samuel, ‘Assessing the Adequacy of Copyright Laws in the Digital Era’ (2025) 1(1) EbSU International Journal of Law and Sustainability Studies 11 <http://ebsujournals.com/index.php/eijlss/article/view/30> accessed 30 April 2026}