The Copyright Act vs The Internet: Is the Law Enough?
Copyright is an abstract property, a statutory ‘negative’ right granted over designated works upon specified terms and conditions. It is not an altogether novel development in Nigerian law but it is nonetheless important to the economy. Before the enactment of the Copyright Act in 1988, copyright was provided for by the Criminal Code and the Penal Code to some extent. The Copyright Act however made novel, holistic provisions with national application. It protects literary, musical, artistic and cinematograph works, sound recordings and broadcasts that satisfies the necessary conditions of consanguinity (either of the author or the work itself) to Nigeria, originality, and fixation in a definite form. Abstract properties are now included in the realm of private property capable of being owned and used in Nigeria. The legal principles of copyright are however in continuing conflict with social, economic and legal practices.
The internet, one of the new innovations that copyright is currently in conflict with, is a land of infinite possibilities. It provides opportunity to connect learners, resources, and teachers in ways our predecessors may have only dreamed. However, information has changed a lot in the wake of the internet. These changes relate to access to information (as increasingly more information is available to the public), the nature of the publishing process (as increasingly more number of people can publish with even less standard on what can be published), and mutable nature of information on the internet (as many of the defining features of publications has been removed in the electronic environment).
Copyright gives the original author of the protected works the right to amongst other things, reproduce, publish, perform, produce, or publish any translation of the work, make an adaptation, distribute the work. This precludes persons who are not the author of the original work from publishing literary, artistic or musical work without the license or authorization of the copyright owner. The unauthorized publication of works is alternatively described as theft, piracy or bootlegging.
The online piracy or theft of works presents a number of problems including the obvious loss of revenue by the owner of the copyright, reduction in the drive to create intellectual property, the decline in the quantity and quality of works being produced and loss of jobs and earnings in addition to substantial tax loss.
Currently, a large number of websites exist that grant users access to literary, audio and visual works for free. Most of us are active users of these platforms on which we view contents created by others, utilize these contents and even share them with people in our network. Many of these sites provide these works for download or streaming without the knowledge or the consent of the author or the owner of the copyright in the work. The United State of America’s economy loses about $12.5 billion in total output annually because of music theft and it is projected that the country will be losing $52 billion by the year 2022 to piracy. There is no official data on the exact amount being lost in Nigeria to piracy and theft of copyright materials, but given the proliferation of piracy and bootlegging activities in the country, it is envisioned that the total loss would be in millions of Naira per annum.
While there might be several motivations for online piracy – including reduced cost and need to access the media urgently – one can only wonder if the law is doing enough to reduce the prevalence of this problem.
Incidences of the Perceived Lacuna in the Law
The archetypical public notion of law in Nigeria is that of a police officer standing with his baton and with the doors of the courtroom and the prison wide open behind him. It is on this conception that one would assume that the Copyright Act, the principal federal law dealing with copyright protection would contemplate and make adequate provisions for published works on the internet and against online piracy in Nigeria, but this is not the case. Arguments may be made that copyright law in Nigeria is still basking in the era of traditional print media and its ideologies are still rooted firmly in the philosophical tenets of democracy.
Firstly, the Act does not refer to the internet as a medium for publication or in any other context. This raises question as to whether works published on the internet are eligible to be copyright protected or whether the holder of a copyright to a work can seek remedies against one who does not hold the copyright to a work but makes publication of the work on the internet. The interpretation of ‘publication’ by the Act is that it takes place when copies of the work are made available in a manner sufficient to render it accessible to the public. The general opinion is that ‘expression’ of an idea, and not the ‘idea’ itself is the subject matter of copyright protection. Hence, can a form of expression not provided for by the Act be held to be an infringement of copyright?
Granted, section 5 of the Act which provides that subject to exceptions, copyright in a work shall be exclusive right to control the reproduction of the work in any material form could be interpreted to include reproduction on the internet but then, the Act does not include the internet when it forbids one from ‘broadcasting or communicating a protected work to the public by a loud speaker or any other similar device’ or ‘distributing to the public for commercial purposes…by way of rental, lease, hire, loan or similar arrangement’. It could be that the Act is aimed against the conventional reproduction and publication of the copyright protected works. If the contrary is the case, it would require clarification.
Secondly, publication or recording ‘in Nigeria’ is one of the condition precedents set by the Act before a work would be eligible for protection. In the case of works published on the internet, the place of publication becomes a fact in issue. The nature of the internet is such that the location of the internet server on which information is stored may differ from that of the author or creator of the content it hosts. What then becomes the place of publication for the determination of whether the Act applies under section 3(1) especially as it relates to works published by people who are not Nigerians?
The provision of the Act that is most relatable to cases like this is that of section 14 which provides that:
‘Copyright is infringed by any person who without the license or authorization of the owner of the copyright imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed’
However, this provision does not provide for the use of the internet in copyright infringement. One cannot validly speak of ‘importation’ in relation to the internet given the issue raised above as to where ‘publication’ and where ‘accessing’ really takes place.
The problem of place of publication is a symptom of another more prominent problem of determining who and which works are covered by the Act vis-a-vis the internet. Would a song released by a Tanzanian musician on a streaming site or app enjoy the same protection as if it were released in Nigeria?
On this note, the Act provides that copyright shall be conferred on works that has at least one author who is a citizen, domiciled or incorporated by or under laws of a country that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party or was published in a country party to an obligation in a treaty or other international agreement Nigeria is also a party to or some other international organizations including the United Nations. But further questions are raised as to how this is to be interpreted with regards to the place of publication for a work to be protected under the Copyright Act.
Thirdly, the Act does not make provisions for peer-to-peer file-sharing and torrent websites that have become widely popular across the globe. These sites provide copyright protected works to the public at no cost to the people that download them. On which provisions of the Act would the people involved be held liable?
The provisions of the Act with regards to ‘distribution’ are generally hinged on ‘trade, offer for sale, or hire’ except for section 14(1)(d) which added another limb – ‘or for any purpose
prejudicial to the owner of the copyright’. Alas, section 18, the punishment section of the Act, reverts to the usual phrase and tone of the Act, omitting the phrase as highlighted above that could have covered the defaulters under the above paragraph.
Fourthly, given that the administrators and owners of the websites that pirated works are shared on are not directly involved in the dissemination of the pirated works, what would be the liability of the parties if indeed they are to be held accountable for copyright infringement perpetrated on their domains? What would be the basis for that liability?
Sadly, the Act is silent on this issue. However, an auxiliary regulation, the Guidelines for the Provision of Internet Service states that Internet Service Providers would be exempted from liability where they have ensured that users are informed of consequences of failing to comply with the acceptable use requirements that may lead to criminal prosecution as it relates to violation of intellectual property rights. It is however argued that this exemption is too light. The rule in the American case of MGM Studios, Inc v. Grokster Ltd should be applied where the hosting services would be held liable for their part in the copyright infringement.
Lastly is the issue of culpability for sharing copyright protected works on the internet. Are we breaking the law by sharing pictures, songs and video clips that are copyright protected on social network platforms? In what way do the operations of the fundamental doctrines of copyright law affirm and sustain the bilateral relation between the owner/author of a work and the party ‘copying’ his or her work on social networks? Is the average person covered by the accepted exceptions of fair and/or private usage when they share the protected works with a group of friends via email or some other electronic means? Answers to these questions becomes critical in view of the fact that one of the copyrights of the authors and owners of works is that they hold the exclusive right of authorizing the reproduction of works in ‘any material form’ or publishing it.
Recourse to International Law
The Act had allowed for extension of the application of the Act by the Minister of Culture in respect of any or all of the works referred to in the Act to individuals who are citizens or domiciled, bodies incorporated by or under the law of, works first published and broadcasts and sound recordings made in countries that is a party to a treaty or other international agreement which Nigeria is also a party. Some of these international treaties include the Berne Convention (1971), the Performances and Phonograms Treaty (1996) and the Copyright Treaty of 1996 and they have provisions that are obviously more encompassing and clearer on copyright protection.
Under the Berne Convention, literary and artistic works were interpreted to include every production in the literary, scientific and artistic domain whatever may be the mode or form of its expression. Sadly, the treaty gives member countries the free rein to prescribe in legislation that works shall not be protected unless they have been fixed in some material form.
On its part, the Performances and Phonograms Treaty has more encompassing meanings for phonograms (which includes ‘embodiment of sounds or of the representations thereof from which they can be perceived, reproduced or communicated through a device’) and communicating to the public (which means the transmission to the public by any medium otherwise than by broadcasting…’). Additionally, it provides that contracting parties are to accord nationals of other contracting parties the treatment it accords to its own nationals with regard to the exclusive rights specifically granted in the Treaty. The treaty also provides that contracting parties shall provide adequate legal protection and effective remedies against the circumvention of effective technological measures that are used in connection with the exercise of the rights of performers and producers under the Treaty; which restrict acts in respect of their performances or phonograms which are not authorized by the performers or the producers of phonograms concerned or permitted by law.
The world is evolving to become an information and service-based society distinct for its rapid technological change in which our ability to reproduce and receive information grows exponentially. As we navigate the rocky terrain of our increasingly linked digital networks that defy physical distance to carry texts, images and sounds with startling ease and rapidity, the law should mutate to match these new avenues of copyright infringement.
The fact that arguments can validly be made that the law is not sufficient in its provisions against copyright infringements on the internet and the protection of works published on the internet points to a problem. The Copyright Act needs a revision for it to meet modern conditions especially as it is not a model for clarity and precision in relation to the internet.
The recommended revision includes express provisions accommodating the novel technologies including the internet generally and specifics such as peer-to-peer sharing platforms.
Sadly, the realm of copyright law is largely untested in Nigeria, hence the judicial interpretation of the law is still underdeveloped. It is hoped that in the coming years, content creators will come to appreciate the virtue in asserting this copyright and the overall benefit such pursuits hold for the society at large.
Michael Chukwu is a graduate of Enugu State University and the Nigerian Law School, with interests in Intellectual Property, Arbitration and other novel areas of law. He is keen on learning and can always be reached through firstname.lastname@example.org