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In creating an intellectual property, it is important to never rule out the fact that personal fortunes may have been expended and totally exhausted, injuries sustained, or worse, lives lost. Hence, to ensure that creators reap the fruit of their labour, Nigeria needs to be on its toes when it comes to adapting its copyright laws to safeguard intellectual property even as it embraces the digital revolution.
The digital age has revolutionized the production, sharing, and consumption of creative content worldwide, with Nigeria being no exception. From the advent of the internet to the widespread use of digital devices like smartphones and laptops, and the rise of social media and music streaming platforms, this digital landscape has unlocked new opportunities for creators while also posing major challenges for copyright protection. In today’s world, it is now easy to pirate, download, reproduce, manipulate, and share copyrighted content in digital formats and within the digital space, making it harder for creators to enjoy just rewards and recognition for their intellectual efforts.
Copyright can be defined as the legal right that grants creators of original works (such as literature, music, artistic, audio-visual, sound recordings, and broadcasts[1]) exclusive control over the use, distribution, and reproduction of their creations for a limited period in order to ensure these creators enjoy just rewards and recognition for their intellectual efforts.
Currently, in Nigeria, Copyright is governed by the Copyright Act of 2022, which was signed into law by the former President Muhammadu Buhari on the 1st of April 2023, repealing the then existing Copyright Act of 2004.
Unlike the industrial age, the digital age is driven by information technology, data, and the widespread use of digital devices like computers, the internet, and smartphones. It is an age that is characterized by the widespread access to information, allowing people worldwide to access knowledge, communicate, and share content instantly.
Many have referred to the digital age as a 2-edged sword, particularly in relation to copyright, and the reason for this is evident. While the digital age has made the world a global village, where creators of original work can reach a wider audience, collaborate more easily, engage with their audience, and generate income from their intellectual property, it has also given rise to significant challenges for copyright protection. At the top of the list of these challenges are identified:
· The ease of reproduction
· The ease of sharing media content
· The increased storage capacity of digital devices, and
· The low cost of duplicating copyrighted work
Again, while these challenges have also benefitted the creators of this work[2], they have equally made it easy for peopleto use and share copyrighted work with others without any form of consideration or restraint, leading to significant monetary loss and recognition for the creators of the work.
In a country like Nigeria, where the majority believe that anything found on the internet is free and belongs to no one, instances of copyright violation are rampant. From simple actions like taking screenshots of certain works, downloading content, and sharing them with friends and families, to copying and pasting without referencing the authors, many Nigerians daily pirate the works of others and flout the provisions of the extant Copyright Act. Below are the negative impacts of the digital age on copyright:
1. Piracy: In reference to copyright, piracy, whether physical or digital, refers to the unauthorized copying, distribution, or use of copyrighted works. It involves the reproduction and sharing of intellectual property, such as music, movies, or books, without appropriate permission. The digital age has made it easy for people to illegally download, share, and reproduce the works of others with just a few clicks of a button and at little to no cost. This has been further heightened by the proliferation of digital devices, social media, and other online platforms and file-sharing technologies, which have made it easy to download, repost, share, and reproduce copyrighted works in minutes without obtaining the necessary permission or acknowledgment from the owner of the copyright.
2. Difficulty in enforcement: Another impact of the digital age on copyright is the difficulty of enforcing it. The internet allows users to share content across the world instantly, some of whom operate anonymously or under false identities. This makes it difficult for law enforcement agencies to pinpoint the origin of copyright infringement and apply national laws in a global digital space. This is particularly true in a Country like Nigeria, where the implementation of the Copyright Act by the Nigerian Copyright Commission[3] has been highlighted to be hindered by poor Information and Communication Technology knowledge, poor financing to obtain the necessary instruments for the implementation of the law, insecurity, corruption, etc.
3. Revenue loss: Due to the high rate of piracy and difficulty in the enforcement of the extant laws, the creators of copyrighted works are not afforded the exclusive control over the use, distribution, and reproduction of their creations for a limited period in order to ensure that they enjoy just rewards and recognition for their intellectual efforts.
4. Globalization and the territorial nature of copyright protection: The territorial nature of Copyright protection[4], combined with globalization, allows copyrighted works to be shared instantly across borders, making it difficult to effectively enforce laws when infringement occurs.
The Nigerian Copyright Act 2022, the primary law governing copyright protection in Nigeria, recognized the challengesposed by digitalization to copyright works in today’s world[5]. Hence, unlike the former Copyright Act of 2004, the Copyright Act of 2022 attempts to address some of these challenges.
HERE ARE KEY PROVISIONS OF THE LAW AS IT RELATES TO DIGITAL CONTENT:
1. Authors or copyright owners have the exclusive right, either directly or through authorized individuals, to make their works accessible to the public via wired, wireless, or online platforms so that members of the public are able to access the work from a place and at a time independently chosen by them[6]. The new Act further protects copyrighted works from infringement risks by explicitly stating that no individual shall intentionally circumvent, avoid, bypass, remove, deactivate, decrypt, or otherwise undermine a technological protection measure that effectively safeguards a copyrighted work[7], and it prescribes a penalty for circumventing such a measure[8].
2. The Act provides for the issuance of takedown notices for online content[9]. According to this Section, the copyright owner can issue a notice to a service provider, requesting the removal or disabling of access to infringing content or links hosted on the provider’s system or network. This notice, which shall be in writing, may be transmitted electronically or otherwise.
3. Upon receiving a notice of copyright infringement, a service provider is required to promptly notify the responsible subscriber and quickly remove or disable access to the infringing content. The provider must then inform the copyright owner. The content may be restored if the provider receives a counter-notice from the subscriber and no response to the counter-notice from the copyright owner within seven days indicating that no authorisation has been granted for the subscriber to make the content available[10].
3. By Section 55(4), a person dissatisfied with a determination or action by the service provider or owner of copyright under this section may refer the matter to the Commission for determination. By subsection 6 of the same section, a service provider that fails to comply with the takedown requirements will be held liable for statutory breach and copyright infringement to the same extent as the person who uploaded the infringing content.
5. Section 56 provides for the procedure for suspension of accounts that repeatedly infringe the copyrights of others.
6. Section 61 provides that “Notwithstanding the provisions of any other law, the Commission may, directly or with the assistance of any other person, block or disable access to any content, link or website hosted on a system or network, which it reasonably believes to infringe copyright under this Act.”
While the Copyright Act recognizes the need to protect copyrighted work even in the digital space and attempts to do so, it leaves some gaps and ambiguities, such as:
1. AI-Generated Content: Artificial Intelligence (AI) is transforming sectors like healthcare, finance, and education, and Nigeria recognizes its potential. However, the Nigerian Copyright Act of 2022 does not address AI-generated content, creating a legal gap. Copyright Law traditionally protects human-created works based on originality and creativity, but AI-generated content complicates this since it lacks direct human authorship. This omission raises uncertainties about copyrightability, ownership, and liability for AI-created works, potentially leading to disputes as AI becomes more prevalent in industries such as music, art, and literature.
2. Ambiguity: The lack of clarity on what qualifies as “repeated infringement”[11] in online platforms creates enforcement challenges, as service providers may have differing interpretations. Furthermore, the Act’s provisions on fair use and fair dealing are not clearly defined in the context of digital content[12].
3. Lack of Enforcement: The enforcement mechanism of the Act is inadequate to handle the scale of copyright infringements in the digital realm, where violations spread quickly online.
4. Blockchain and Smart Contracts: The Act does not explore how emerging technology, like blockchain technology and smart contracts, can be utilized to manage and enforce copyright in digital content.
In light of the above-identified challenges, the Nigerian Copyright Act of 2022 could benefit from the following reforms:
1. Providing Protection for work generated using AI.
2. Employing a stronger means of enforcement.
3. Enacting wider provisions that address digital privacy. With the emergence of various means of copying and sharing copyrighted files, the Nigerian Copyright policy needs to enact broader, stronger measures to combat digital piracy in all forms. Collaborating with international bodies on cross-border enforcement mechanisms could also help combat global piracy affecting Nigeria.
4. Enacting provisions that explore how emerging technology, such as blockchain technology and smart contracts, can be utilized to manage and enforce copyright in digital content.
5. Providing a more comprehensive procedure for the giving of relevant notices and the settlement of disputes that may arise. Although the Act addresses takedown notices, it may provide more thorough guidance on handling disagreements over takedown requests and counter-notices. This would lessen systemic misuse by balancing the interests of users and content creators with those of copyright holders.
In a rapidly evolving technological world, it has become essential for lawmakers to create laws that address the impact of technological advancements on copyright. The Copyright Act of 2022 marks a positive step in Nigeria’s intellectual property landscape, acknowledging some of the digital challenges faced by creators of original works in this dispensation. However, as digital technology continues to advance, we hope to see the Act evolve further to address the ongoing challenges in copyright enforcement and protection in Nigeria.
[1] Section 2 (1) of the Copyright Act 2022
[2] For instance, ease of reproduction makes it easy for creators of eligible copyright work to share their intellectual property in digital format to millions of people at the click of a button without fear of losing the quality of their work.
[3] The body saddled with the administration of the Copyright Act
[4] Copyright protection is territorial, being subject to the laws of the Country where the work is protected or infringement occurs. Hence, for the owner of a work to enjoy Copyright protection over that work in other Countries, then he/she needs to register their works in those jurisdictions or rely on international agreements like the Berne Convention, which facilitates reciprocal protection across member countries.
[5] Section 108 of the Copyright Act 2022 expands the definition of “copy” to include a digital copy.
[6] Sections 9(1) (i), 10(1)(f), 11(f), 12(d) and 13(1)(c)
[7] Section 50 (1) and (2), Section 50 (3) define what a technological protection measure is and how it can be bypassed
[8] Section 52
[9] Section 54
[10] Section 55(1) (2)
[11] Section 56 of the Copyright Act 2022
[12] Section 20
Written by Elizabeth Oyinlola for The Trusted Advisors
Email us: info@trustedadvisorslaw.com
Telephone Number: +234 810 159 9159