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The internet age has elicited many unparalleled issues that do not find resolution in the extant legal order. One of such issue pertains to adapting extant copyright laws to meet the challenges of global computer networks. In this regard, the major threat to copyright holders posed by the ease of dissemination of information on the internet is online piracy
This article deals with the highly controversial issue of internet service providers (hereinafter referred to as ISPs) liability for infringement of copyright by a third party and the provision of the Safe Harbor Principle
WHO IS AN INTERNET SERVICE PROVIDER?
An Internet Service Provider (ISP) is an entity that connects people to the Internet and provides other related services such as website building and hosting. It can also mean a company that might be performing any of a multitude of services over the Internet.
The Digital Millennium Copyright Act 1998 provides two definitions for ISPs. The first definition in section 512(k)(1)(a) states that “an entity offering transmission, routing or providing of connections for digital online communications, between or among points specified by a user, of the material of user’s choice, without modification to the content of the material as sent or received”. The best description of an ISP in Nigeria is expressed in section 13(1) of the Advanced Fee Fraud and Other Related Offence Act 2006 [i] and it provides thus: any person or entity who in the normal course of business provides telecommunications or internet services or is the owner or person in the management of any premises being used as a telephone or internet cafe or by whatever name called
ROLE OF INTERNET SERVICE PROVIDERS
ISPs play a major role in the online distribution of digitized copyright works, there are questions as to whether these intermediaries should be made liable for the acts of their subscribers who use their services to access, post, or download copyrighted works.[ii] Such, contents submitted to owners and operators of web channels are subject to various forms of copyright infringement, if contents are not obtained through the right channels.
The United States in dealing with intellectual property infringement, developed the doctrine of secondary liability. Secondary liability arises when a party materially contributes to or facilitates infringing acts carried out by another. In MGM STUDIOS v. GROOSKTER LTD & ORS[iii]
Grokster and other companies distributed free software that allowed computer users to share electronic files through peer-to-peer networks. The Supreme Court held that although the Copyright Act did not expressly make anyone liable for another’s infringement, the doctrine of secondary liability applied, as companies that distributed the software, promoted the use of the software to infringe copyrights, and financially benefited, are liable for the resulting acts of infringement even if they didn’t directly infringe the copyright.[iv]
ARGUMENTS ABOUT THE LIABILITY OF INTERMEDIARIES (ISPs)
There have been a lot of arguments against the liability of internet service providers. It has been said that ISPs are majorly passive conduits and should not be held liable for copyright infringement. In addition to this, it has been argued that it is impracticable to expect all ISPs to screen the content passing through their systems given the large number of transactions taking place.
On the other hand, some people have also argued that ISPs should be liable because it is difficult to trace the actual perpetrators because the internet allows them to be anonymous. Furthermore, ISPs possess the requisite apparatus to monitor activities. These arguments brought about the necessity to strike a balance between both the authors of copyright work and the public.
Therefore, in order to maintain a balance between the right of authors under copyright law and the public need or interest for easy access to education, information, entertainment, and research via the internet, it is necessary to have a legal framework to update copyrights laws to suit this new digital era.
In response to this dilemma, the United States through the Digital Millennium Copyright Act of 1988 (DMCA) decided to resolve this dispute by handling the ISPs as innocent middlemen provided they meet certain conditions. These conditions are considered as the SAFE HARBORS PROVISIONS
SAFE HARBORS PROVISIONS
The Safe Harbors are a set of provisions contained in the DMCA. The provision is intended to protect Online Service Providers (OSPs) from secondary liability infringement claims arising from the activities of the end users. For instance, when a song is used as a soundtrack in a web series without permission from the author or a song is uploaded to the cloud by a user who is not the author or does not have the permission of the author, these are acts of infringement.
To qualify for the safe harbor an OSP must:
SAFE HARBOR PROVISIONS UNDER THE NIGERIAN COPYRIGHT ACT 2022
A service provider cannot be held financially responsible for copyright infringement if they merely act as a conduit for users to access infringing materials, or if they store infringing materials on their system at the direction of a user. However, this is only the case if the service provider did not gain any monetary benefit from the infringement, and took appropriate action such as removing the infringing material or disabling access to it upon receiving notification.[vi]
However, it is important to note that irrespective of the liability model adopted, ISPs acting as intermediaries, may be mandated to remove the unlawful content when instructed to do so through lawful procedures. The Act introduced entirely novel provisions relating to posting copyrighted works on the internet without authorization of the copyright owner. A copyright owner is conferred with the right to issue a written notice to a service provider to take down or disable access to an infringing material hosted on its network.[vii]
CONCLUSION
In Nigeria, it is clear from the foregoing that the legislative basis for ISPs liability or immunity under Nigerian law is not as strong as it should be compared to the USA. This may be traceable to the commitment of the Nigerian government to the deployment of information communications technology in the commercial sector. Overall, our legislation should be proactive in addressing things in the ICT sector.
[i] 2006 Act No. 14.
[ii] Bernard Oluwafemi, “Liability of Internet Service Providers under the Nigerian Law’, file:///Users/Trusted%20Advisors/Downloads/LiabilityofInternetServiceprovidersUnderNigerianLaw.pdf, accessed on March 15, 2024
[iii] 545, U.S. 913 (2005)
[iv] Toju Dottie, “ Secondary Liability and Safe Harbor for Online Service Providers: Necessary Provisions to be Incorporated into the Nigerian Copyright Act, < https://www.linkedin.com/pulse/secondary-liability-safe-harbor-online-service-providers-toju-dottie/> , accessed on March 15, 2024
[v] Supra, n(3)
[vi][vi] See sections 58 & 59 of the NCA, 2022
[vii] Section 54(1) of the Copyright Act
[viii] Section 55(4) of the Copyright Act
[ix] Section 56 of the Copyright Act
Written by Deborah Dada for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com