The Year 2020 forced changes in the way we do things in the world, caused by the COVID-19 pandemic, which is still on the rampage. Several countries went into series of lockdowns and ordered their 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.
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.
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 owners 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 implications.
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 the 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”.
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 the 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.
In those jurisdictions, 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 license 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 license 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 to 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 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.
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