The essence of copyright, which is to exclusively protect the works of the human intellect, will be far from being actualised without a robust and effective licensing system. The concept of licensing essentially allows a copyright owner to transfer all or a subdivision of his rights to another person or entity and/or permits the other person or entity the use of and access to the copyright works (often coupled with the payment of royalty or licence fee). The strident advocacy on the need to reform copyright licensing regime in Nigeria fundamentally rests on the outdated and archaic nature of the Nigerian Copyright Actand its failure to meet up with the modern proliferation of digital technology on creative content. As a consequence of the digital age, the creative and commercial value of digital content has brought to the fore a palpable need to improve the Nigerian Copyright licensing system given that each technological development renders the existing system more esoteric and anachronistic. This essay analyses the ubiquity, complexity and challenges of the digital era and the impact of new technologies as they relate to copyright licensing in Nigeria, it further provides an insight on how best we can bring our Copyright laws to speed to meet the urgent demands of new technologies in the digital era, the achievement of which will serve a collective economic and developmental goal for the regulator, licensee and licensor.
DOES THE NIGERIAN COPYRIGHT LICENSING SYSTEM ADDRESS DIGITAL AGE DEMANDS?
Changes in technology tend to upset the balance set by copyright law in favour of either the copyright owner or the public. With the advent of technology, a single work can be transferred immaculately at no cost which makes the enforcement of Intellectual Property Rights complicated without a digital licensing system. Copyright infringement in the analogue age was more difficult and required perfection to attain a similar quality with the original work. However, the digital era has made duplication and transfer easier with the duplicated copy having the same quality as the original. The 21st Century witnesses the paradigm shift from analogue modes of storing works to the emergence of digital platforms which afford users with streaming and downloading services. With these platforms, users gain access to works at the snap of their fingers; this begs the question as to the extent of rights exercised by digital platforms and the regulation of same. A frantic search for answers to this question invariably leads to the review of the entirety of the Nigerian Copyright Act which reflects the absence of provisions that regulate dealings between copyright owners, end-users and digital platforms. Whilst practice has revealed that the triangular dealings amongst digital platforms, end-users and copyright owners are usually regulated by agreements between parties, it is expected that these agreements align substantially with the extant provisions of the Nigerian Copyright Act relating to the subject matter. It is against this backdrop that the need for an effective copyright licensing system shall be discussed.
FINETUNING THE NIGERIAN COPYRIGHT ACT TO ADDRESS THE COMPLEXITIES OF THE DIGITAL AGE
A flip through the books of history demonstrates that certain innovations often lead to permanent changes to the legal landscape and the trajectory of legislative enactments and judicial decisions relating to copyright. Notable examples of these include but not limited to the introduction of the printing press in the 16th century and the introduction of player-pianos of the 1800s. The internet, which is the fulcrum of the digital age, is not missing on the trail of innovations that have tweaked certain concepts as they relate to copyright – this is seen from the provisions of the WIPO Internet treaties which extended the provisions of the Berne Convention and the TRIPS Agreement to these new technologies by allowing rights-holders to protect their rights through encryption technologies best suited to the needs of the Digital Age. The Nigerian Copyright Act should also be amended to feature the provisions of the WIPO Treaties as they relate to copyright licensing. I advocate that the WIPO Treaties should not be copied verbatim but rather amended to embrace the peculiarities of the Nigerian Society. This will protect copyrighted materials distributed online; bolster collaboration between content creators and internet platforms and engendering a fair and equitable distribution of profits generated from such content.
The facilitation of copyright licensing in the digital age extends to rapid location and identification of licensors and licensees, providing virtual platforms for exchange and automating contracts, payments, and the delivery of goods and services. In recent times, developed forms of digital copyright licensing, such as Creative Commons (CC) system and Open Source Software (OSS), have been introduced to establish novel mechanisms of exercising the rights provided under copyright and a form of distribution that relies upon the copyright owner’s exclusive rights. These digital licensing systems give everyone from individual creators to large institutions a standardized way to grant the public permission to use their creative works under copyright law. The Nigerian Copyright Act should be amended to include a digital licensing system that is suited for the Nigerian society; a system that ably regulates digital licensing practices as is obtained by CC and OSS.
Furthermore, rather than having a uniform digital copyright licensing system, the Nigerian Copyright legal regime should be amended to provide for the compulsory enactment of special laws that specifically cater for a digital licensing system for every category of Copyrighted works. These specialized laws should stipulate special structures for digital copyright licensing of the specific category of work for which they were enacted and establish bodies that will be saddled with the responsibilities of overseeing and enforcing the provisions of that law concerning the digital licensing system of that specific category of copyrighted work. The Nigerian Copyright Act should take a cue out of the United States of America Digital Millennium Copyright Act (DMCA)’s book which paved way for the emergence of the Musical Works Modernization Act, a law that makes it easier for digital music services to license music and right holders to get paid when their music is streamed and downloaded online. It will also be responsible for creating and maintaining a free, public database of musical works and sound recording ownership information.
The introduction of these measures into the Nigerian Copyright Act will support stakeholders across the entertainment industry by implementing a more market-oriented approach for setting certain statutory royalty rates, increasing fairness to rights holders and users, ensuring that every person involved in the creation of a work is entitled to payment of royalties such as music producers, mixers, and sound engineers, and the creation of the blanket license for digital music providers will enable them to engage in covered activities (e.g., making permanent downloads, limited downloads, and interactive streams) without the cumbersome process of per-work licensing.
Aside the aforementioned approaches necessary to align the Nigerian copyright licensing system with modern digital trends, it is equally recommended that the legislature should refrain from signing the proposed Copyright Bill 2015 into law given the apparent inadequacy of the bill to fully address related issues in copyright licensing in this age and its shoddy attempt to improve the existing law. In sum, a rapid and enthusiastic legislative response to global trends relating to copyright licensing, domestication of international treaty obligations, adoption of digital copyright licensing practices, creation of structured bodies to facilitate the digital copyright licensing of each category of work are indeed the key to protecting and balancing the rights of creators and users. In the long term, this will consequently encourage the steady inflow of foreign direct investments and stimulate economic growth and development to the extent that foreign investors will have the comfort that their Intellectual Property Rights will be accordingly protected.
Sina is a 400 level student of Law at Lagos State University and may be reached on 234 903 764 2277; Akinmusirevictor@gmail.com
Section 11 of the Nigerian Copyright Act Cap 28 Laws of the Federation of Nigeria, 2004
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