May 16, 2018

IP ABC - Does sharing an e-book in a WhatsApp group infringe the author's copyright? | Infusion Lawyers

Question - Does sharing an e-book in a WhatsApp group infringe the author's copyright?

I am David, an LLM student. I am a member of a WhatsApp group for lawyers. The WhatsApp group has up to 250 lawyers. Last week, I bought an e-book titled 'How to Become a T-Lawyer' on Amazon. The book was $45 per copy. Seeing how useful the book would be to my learned friends, I uploaded a download copy of the book on the WhatsApp group. My learned friends were happy to receive it. It was free. But a member of the same group was unhappy about this.  She said what I had done amounted to copyright infringement. Since it was for educational purposes, I disagreed with her, pleading fair use. Just so I'm certain I'm not on the wrong side of the law, did I infringe on the author's copyright?


The answer is YES.

Sharing a copyrighted work with up to 250 persons without the author's permission amounts to copyright infringement. Contrary to what you believed, fair use—or more accurately fair dealing—does not apply to excuse your infringing act. Whether it's for an educational purpose does not matter. Why? Your act of sharing a book protected by copyright in the manner you have done hurts or potentially hurts the author's pecuniary interest.

First things first, 'fair use' and 'fair dealing' are not exactly the same.

Fair dealing is an exception to copyright infringement as recognized in copyright statutes of common law jurisdictions such as Australia, Great Britain, Nigeria, etc. It contains a finite list of exceptions to copyright infringements. In Nigeria for instance, the Copyright Act  provides exceptions to copyright control. But fair use is an open-ended list  limiting the exclusive rights of an author. Fair use applies in U. S. copyright law. Because of its open-endedness, it is largely judge-made-law driven, with judicial acid tests.

For our purpose, let's stick with fair dealing.

Fair dealing is a defence to copyright infringement. Generally, fair dealing is any dealing or use of a copyrighted work for a limited and transformative purpose. This could be using a work for the purpose of commenting, criticizing, or making a parody of the work. To carry out these acts, you don't need the author's permission. Fair dealing saves you when:

you are commenting upon or critiquing a copyrighted work. For this purpose, you are allowed to reproduce the work—in the sense of copying, not publishing the work. The logic here is that since members of the public would benefit from your comment or critique, it's only fair that you enjoy the right to reproduce the work. But the reproduced part of the work must not be substantial. In your case, you have neither commented upon nor critiqued the e-book. You merely downloaded it and shared in a public forum;

you are ridiculing a work by imitating it in a comic way. In 'copying' the original work for the purpose of the parody, fair use allows you to extensively copy the original work. Again, since you do not intend to produce a parody of the work, fair dealing does not save you; and

you are conducting research or having a  private study. Because research helps advance knowledge and private study reasonably shuts out public access, fair dealing applies. But in your case, after privately studying the e-book, you uploaded the e-book to a WhatsApp group--a public forum. It is immaterial that each member of the WhatsApp group is expected to use the book for research or private study, except you are an educational institutional institution--an approved educational institution. You are not an educational institution. (And even educational have statutorily up to 12 months to destroy the work. Can you get your LLM certificate that your learned friends would destroy the e-book? It's most unlikely!)

So while public-benefit or public-interest uses are defences to copyright infringement, fair dealing has its limits.

The 3 exceptions above are part of the statutory exceptions to copyright infringement, referred to as 'fair dealing'. are not exactly the same.

The exceptions are listed in the Second Schedule of the Nigerian Copyright Act. They include criticism or review, reporting of current events, research, and private use. Caricature, parody, and pastiche are also exceptions to copyright control or infringements. Another exception is use of a work in an approved educational institution for the institution's educational purposes and for a limited period. Also, if the work has not been published, it may be reproduced for public access, but only by a library, museum, or public institution. And if it's reproduced or published exclusively for the blind (Braille), this is also fair.

In your case, downloading and sharing  copy-righted work on a WhatsApp group is not fair dealing.

First, if up to 200 members of the WhatsApp group download the $45 e-book for themselves, this would total $9000 dollars in royalty revenue, thus hurting the author's pecuniary interest. And if these 200 persons further shared the book on social media, consider how badly this would hurt the author's pecuniary interest even more.

Second, the WhatsApp group where you shared the ebook is a public forum. Being a public forum, you have no control over the manner in which the e-book would be used by the up to 250 members of the group. Some may decide to download it (and even print it) for private study, while some others may decide to further distribute it to their connections in other media platforms. In this social-networking age with millions of users across borders, how do you control these guys from not getting unfair?

Third, fair dealing essentially concerns itself with copying of a copyrighted work—whether substantial or not. It is hardly about redistribution of a copyrighted work, which is what your infringing act is really all about. To distribute a copyrighted work, you should either be the publisher, authorized agent, or independent seller. And as an independent seller, you are selling the author's e-book by marketing the link to the download page, not downloading the e-book yourself to share with readers either through email, WhatsApp, or any other electronic means.

Once the use of a copyrighted work hurts or potentially hurts an author's pecuniary interest, fair dealing is defeated. 

This is so because the major purpose of copyright in the first place is to protect the author's pecuniary interest while also ensuring public access to knowledge. Once this access to knowledge fails to meet the conditions for fair dealing, the author is entitled to come for you.

With copyrighted works, always keep the dealing fair.

Best wishes

Follow-up questions, if any, are welcomed.
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