By Onyinye Odogwu and Gina Odah
Year 2020 forced changes in the way we do things in the world, caused by the COVID-19 pandemic, which is still on rampage. Several countries went into series of lockdowns and ordered its citizens to stay at home. Even when lockdowns were not in place, protocols require far less physical and personal contact than we are used to. This resulted in a heavy reliance on virtual communication such as social media, traditional telephone, emails, text messages, chats, video conferencing and other internet enabled means of communication, work and entertainment. To cope with this new reality, more people have turned to content creation on the internet in the form of blog posts, audio recordings, creative videos and photographs. While hardly any of these are new, the scale is unprecedented. Issues of copyright infringement have naturally ensued, and are on the increase.
Under our intellectual property laws, copyright is a form of protection provided by law to authors of original works such as literary, musical, artistic, and other creative works. This exclusive and assignable right immediately takes effect the moment the work is fixed in any definite medium of expression from which it can be perceived, reproduced or communicated; in the case of the internet, on any platform such as websites or social media platforms.
Copyright and the internet
Section 14 of the Nigerian Copyright Act, which was enacted in 1988, before the advent of the internet, provides that copyright is infringed by any person who without the license or authorization of the owner of the copyright, makes use of an owner’s work without such rights being assigned or licensed by the owner or licensee. The Act provides a list of actions that amount to infringement.
However, the evolving nature of the internet has brought about less obvious forms of infringement that are not provided for in the current Act. For example, the advent of stay-at-home orders has produced a stream of online content such as home workout videos. People will usually post workout videos with music playing in the background, for which no authorization was given, but for which credit is usually given to the author/owner in the caption or through the use of hashtags. However, although giving credit may show good faith, it does not constitute authorization.
There are also other instances of illegal downloads of copyrighted content such as images, which are then shared to the public without the prior authorization of the copyright owner.
In such instances, what usually happens is that the owner will ask the person who posted the infringing content to take it down, as well as notify the platform on which such content was posted, of the copyright infringement, and request such platform to take down the infringing content. Some owner’s will go a step further and cause a cease and desist notice to be issued to the infringers, and even claim for damages for the infringement. Recourse to court is usually a last resort because of the cost and time implication.
Protection of Copyright on the internet – The Draft Nigerian Copyright Bill
The Act provides that copyright shall be conferred on works that have been “fixed in any definite medium of expression now known or later to be developed…” Although it attempts to consider future developments such as digital content, it does not quite cater to the complex issues introduced by the internet; thereby bringing about the necessity for its amendment, which the copyright bill seeks to do.
The copyright bill, which was introduced in Year 2015, seeks to align the copyright laws of Nigeria with the digital age, and is a step towards the right direction in providing protection for copyright owners on the internet. The introductory note to the Bill states that its main objective is to “reposition Nigeria’s Creative industries for greater growth; strengthen their capacity to compete more effectively in the global market place; and enable Nigeria to fully satisfy its obligations under the various International Copyright Instruments, which it has earlier ratified or indicated interest to ratify”.
Part VII of the bill addresses how copyright infringement on the internet should be handled. Section 47 gives authority to the content owner to notify the Internet Service Provider (ISP) and alert them of the infringement. Upon receipt of a complaint of infringement, section 48 mandates the ISP to notify the alleged infringer to take down infringing content within 10 days of receipt of the notification. Where the alleged infringer fails to either provide the license to use such content or take down the content as notified, the Copyright Commission can directly, or with the help of the content provider, disable or block the content associated with the infringer.
In the case of repeat offenders, the ISP has the authority to suspend such an account after an initial warning has been issued. The ISP also has the power to block access to online content of persons who infringe on the copyright of others. Section 53 even allows the content owner to seek out the identity of the alleged infringer.
The Bill also provides options for persons dissatisfied with the determination or action of the ISP or owner of a copyright, to refer the matter to the Copyright Commission for determination.
Another commendable aspect of the bill is the amendment of the definition of “copy” from “a reproduction in written form, in the form of a recording or cinematograph film, or in any other material form, so however that an object shall not be taken to be a copy of an architectural work unless the object is a building or model” to “a reproduction in any form including a digital copy.” This amendment takes into consideration the ability to now make digital copies and removes the limitation of copying being a physical or tangible copy, which covers the loophole in the present Act.
Suggestions for improvement of the Copyright Bill 2015
The proposed bill being an improvement to current Act especially with respect to the protection of copyright in the digital space is commendable. However, there is still much work to be done. The sharing culture of the internet especially on social media platforms has made infringement of copyrighted work so much easier, and the fast pace at which the internet evolves requires laws that adequately tackle these issues.
For example, there are certain works on the internet that have been shared and reposted multiple times making it very difficult and almost impossible to trace the original author of such works. To cover for such events, the bill can adopt the concept of “orphan works” which has proven effective in countries such as the US and the UK.
In those jurisdictions, a work will usually qualify as an orphan work after a diligent search has been conducted and it is found that the owner of the copyright in such work cannot be identified, or if identified, cannot be located or tracked, for lack of sufficient information. In such an instance, the Intellectual Property Office can issue a non-exclusive licence authorizing the use of the orphan work for a particular period.
The copyright bill could incorporate this system by granting authority to the Copyright Commission to introduce an “orphan work” category, which will apply to works, which the owners cannot be traced. So, in an event where an applicant can establish that a diligent search has failed to ascertain the ownership of certain works, the Copyright Commission may grant a non-exclusive licence to such an applicant for a limited period of time. The royalty payments can even be kept in a special account, and the funds can be made available in the event that the copyright owner makes a verifiable claim.
Another amendment that can be made into the bill is to revise the definition of an author. The bill presently defines “author” in the following ways: author in the case of literary, artistic or musical works, means the creator of the work; in the case of a photographic work, means the person who took the photograph; in the case of sound recording, means the person by whom the arrangements for the making of the sound recording were made; in the case of a broadcast transmitted from within any country, means the person by whom the arrangements for the making or the transmission from within that country were undertaken.
While those definitions are sound and attempt to cover the various modes of authorship, the bill fails to consider works that are not directly produced by human beings. For example, in the case of Naruto, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc. (PETA) and Antje Engelhardt, Ph.D. v. David Slater, PETA sued Mr. Slater, a wildlife photographer for the copyright of a selfie which was taken by a monkey (Naruto), using Mr. Slater’s already set up camera. The court of first instance dismissed the case because animals could not own copyright, and the plaintiffs appealed. Before the determination of the appeal, parties settled and lawyers for PETA stated that the deal included a commitment from the photographer to pay 25 per cent of all future royalty revenue to the monkey sanctuary where Naruto lives.
If the law was not silent about ownership of works not produced by human beings, a case like this would have either never been commenced or would have been more easily decided. Therefore, in an age where works can be produced by artificial intelligence (AI) with very little human intervention, the bill should expand its definition of authorship to make room for such technological advancements, and for how works produced by AI or with heavy reliance on AI with very little human intervention, should be treated.
Since the bill is yet to be passed into law, there is an opportunity for it to be withdrawn and reviewed to reflect special protections for digital content, taking into consideration the ever-evolving internet space, to produce a more robust and relevant Act.
Odogwu and Odah are lawyers in the Lagos office of the CLP Legal