Introduction:
In mid-2007, I was privileged to be part of the legal team that
represented the RIAA in its fight against LIMEWIRE for peer-to-peer online
piracy of numerous sound recordings belonging to various artistes utilizing
LimeWire’s decentralized network servers, its file-sharing software and
distribution platform. The action included claims for vicarious and
contributory infringement, inducing copyright infringement, unfair competition
and common law copyright infringement claims for pre-1972 sound recordings. At
the heart of RIAAs claims was the fact that LimeWire had the ability to control
the activities of its customers and its failure to do so disclosed complicity
in the offending conduct. Prior to LimeWire, companies like Napster, Aimster and Grokster had occupied similar strategic
positions.

And very much like those P2P networks, LimeWire developed a software
program based on the Gnutella protocol that enables online transfer of files
between numerous servers and user computers. Potentially, these files could be
anything from regular data and personal information to music, movies and other
video recordings. The problem, however, was that the files that could be
transferred and were more often electronically transferred were copyrighted
works distributed without license from the music labels, the record companies
or their representatives who rely on the sale of these works to remain in
business. LimeWire placed reliance on the Sony-Betamax decision of the US Supreme Court on the validity of a staple item of commerce with
primary salutary impact on the relevant industry.

The high-speed rate and ease with which these copyrighted files can be
uploaded or downloaded over the internet has increased exponentially over the
years that the facts and figures of the Sony- Betamax case paled in comparison. Some have argued that failure to restrict such behavior may result in widespread use that may render other forms of music
distribution like CD’s, DVDs and cassettes obsolete. Indeed, the advantages of
cashing in on the enormous revenue generation which online music distribution
has engendered has since become apparent to the music industry who are now
variously experimenting with other legitimate P2P companies regarding the use
of this medium as an effective marketing tool. LimeWire operated a
decentralized architectural network and did not own or control a central server
for file profiling and distribution as Napster did. It merely provided its
software to the public by introducing them to a free basic version that was
upgradeable to a more sophisticated ad-free version with faster download
capability for a negligible fee. It did not monitor the conduct of members of
the public who utilized its software and had not encouraged them in any way to
download or upload copyrighted music files among themselves.

This brief introduction is intended as a segue to the ubiquity,
complexity and challenges of the digital era and the impact of new technologies
on the development of the law, i.e., Copyright law.

Defining
the Issues: Developments in the sciences and technological knowledge have
occasioned disruptions in how humans conduct their affairs and carry on
business relations with each other and across geographical locations. These
developments have also compelled permanent and irreversible changes to the
legal landscape and the trajectory of legislative enactments and judicial
decisions. The introduction of the printing press in the 16^th
century and the industrial revolution it engendered, marked the significant
growth and recognition of copyrights in Europe, the UK and globally. The introduction of player-pianos of the 1800s; radio transmitters in the
1920s; cable television in the 1960s; photocopying in the 1970s; home video
cassette recorders in the 1980s and digital transmissions and downloads of the
internet era triggered major turning points in the growth of copyright law.
Such periodic occurrences introduced significant conceptual issues not
anticipated and provided for under the legal regimes then in force. 

Whilst our daily lives are enhanced and rendered considerably more
manageable through the introduction of new relational platforms and mediums of
expression, they raise thorny questions of copyright exploitation and
unauthorized appropriation. Some of the challenges extend to the range of
exclusive rights available to copyright authors and rights-holders, use of
technological tools for copyright protection, the possible impact on collective
management and administration of copyrighted works arising from modern technological
tools, and determining the scope of secondary liability in the new digital
space are just a few. The relative ease of reproduction,
distribution, transmission or retransmission and storage of copyrighted works
with the use of new technologies pose additional challenges for copyright laws
and administration to contend. With the advent of new forms of
dissemination of protected materials, rights-holders have found it near
impossible to regulate and control the unauthorized distribution of their works.
Under the interactive functionality of the current digital dispensation, the
ability of users and third parties to manipulate protected works online and on
digital platforms blurs the conceptual lines between the author and users of
copyrighted works as well as the authorial integrity of these works.

Multi-layered
Jurisdictional Approaches: The regulation of copyright law is generally a
question of national laws and each country stipulates the boundaries of what is
copyrightable, their nature, applicable rights and term of protection.
Traditionally, most copyright laws provide for the protection of literary and
artistic works, sound recordings and musical compositions, broadcasts and
neighboring/performance rights. These traditional categories of eligible works
appear ill-suited to the exigencies of the digital age. The mere
digitization of a piece of copyrighted material may implicate two or more
categories of works simultaneously or even necessitate the creation of new and
more fluid categories of a sui generis nature
deserving of discrete legal protection. The limitations of
national legislations have given rise to an international regime of laws to
address transboundary copyright issues starting firstly with the Berne
Convention on Literary and Artistic Works of 1886,¹⁸ the Universal
Copyright Convention established in 1952, the Geneva Phonograms
Convention and the Rome Convention. In 1996, the WTO Treaty introduced the
TRIPS Agreement which stipulated certain minimum standards of protection for copyrighted works premised on the framework
of the Berne Convention as part of the international trade in goods and services. Most
of these international instruments did not directly address the special role of
digital technologies and their ramifications for copyright ownership and enforcement.

The WIPO Internet treaties introduced with effect from 2002
have attempted to extend 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. These treaties introduced minimum requirements for the protection of
copyright owners by member states of WIPO from unauthorized access and use of
their works on the internet and other digital platforms by recognizing their
rights to control these works and to be compensated for their use. In addition to extending the recognized protections of copyright law to these
uses, the WIPO Internet treaties also introduced the anti-circumvention
provisions to all digital rights management techniques and the prohibition of
intentional deletion of associated electronic digital rights management
information.

The United States implemented the provisions of the WIPO Internet
treaties in its DMCA enacted in 1998. In addition to criminalizing
the circumvention of technical protection measures and access control
technologies adopted by copyright holders, the Digital Millennium Copyright Act
(DMCA) also introduced exemptions and protections from direct and indirect
liability for internet intermediaries and ISPs. The Copyright (Information
Society) Directive implements the provisions of the WIPO Internet
Treaties in the European Union. This Directive distinguishes between
reproduction rights and the right of communication to the public, which covers
transmissions and publications distributed on the internet. Transient and
incidental copying forming part of a network transmission or other legal uses
are exempted for the benefit of ISPs. The anti-circumvention provisions extend
to the manufacture, importation, distribution, sale and rental of devices
intended for such use, specifically marketed and advertised for circumvention
purposes, and have limited commercial uses other than to sidestep copyright
protection measures, or are primarily designed and adapted for the purpose of
enabling or facilitating such evasive measures.

Very
recently, the EU issued a new Directive on Copyright in the Digital Single
Market intended to ensure “…
a well-functioning marketplace for the exploitation of works and other subject
matters…taking into account in particular digital and cross-border uses of
protected content.” The measure seeks to protect copyrighted material
distributed online, encouraging collaboration between content creators and internet platforms and
engendering a just and more equitable distribution of profits generated from
such content.

The
Nigerian Position: Under the Copyright Act literary, musical
or artistic works are protectable where sufficient efforts have been expended
in making the work to give it an original character and such work is fixed in a
definite medium of expression (now known or later to be developed) from which
it may be perceived, reproduced, or communicated either directly or by means of
a machine or other device. This definition is clearly afflicted by
all the problems and challenges which the digital era has engendered as already
reviewed above. Although the Act attempts to anticipate improvements in
technology and scientific knowledge, the intended flexibility and broadness are
hampered by the other eligibility requirements and parameters for copyright
protection stipulated in the Act.

 Several amendments and regulations have been introduced over the years to
more pointedly address these shortcomings and more of such updates are still
expected to occur. Section 21 which provides for
anti-piracy measures empowers the Commission to prescribe suitable marks,
labels, designs or impressions or other anti-piracy devices in connection with
any works over which copyright subsists. That section proscribes the offer for
sale, rental or hire, importation, possession, unauthorized replication or
circumvention of anti-piracy devices. This amendment was followed up in 2006
with the introduction of the Copyright (Optical Discs) Plants Regulations, empowering the NCC to monitor and regulate the activities of optical disc
manufacturing and production plants and the importation of relevant equipment
into the country. In 2010, the Commission introduced the mandatory inscription
of Source Identification Codes (SIDs) on all optical discs produced in Nigeria. The new Copyright Bill contains provisions on anti-piracy measures, circumvention of copyright technology protection measures, liability of ISPs for online infringing material, issuance of Take-Down notices, empowering the Commission to
block access to infringing online content, among other notable recommendations.

Conclusion:
Under the Copyright Act, the narrow definition of broadcast and
communication to the public by a loudspeaker or any other similar device does
not anticipate digital transmissions which are prevalent in today’s world.
Similarly, the reproduction and distribution rights stipulated in the Act are
also restrictive in scope. Some writers have canvassed for specific provisions
that would address digital transmissions, online interactive distributions and
communications to the public via cyberspace and other digital platforms in
recognition and implementation of the WIPO Internet treaties.

Effective Enforcement and utilization of the relevant provisions of the
Act and the Regulations highlighted in this paper is necessary to achieve the
regulatory objectives of the NCC to restrict the incidence of piracy and
counterfeiting in the Country. The Copyright Inspectors should be properly
equipped and trained, coupled with the deployment of adequate resources for
proper functioning. Appropriate border control measures and collaboration
between affected agencies and parastatals would be of immense value in
combating piracy of copyrighted works. In the digital environment, however, the most effective tool of
enforcement are technological tools that ensure copy protection, access control
measures and digital rights management. As already remarked, the current
position of our law is inadequate for addressing issues relating to digital
transmissions and public performances over digital/internet platforms and the
proposed amendment to the Copyright Act is intended to fill this gap. There still appears to be no clear regulatory or statutory guidance for the
digital transmission of ringtones on mobile devices and the extent of
liability, if any, for unlawful reproduction or for public performance of these
derivative works, and the liability of users, content creators and aggregators. In addition to the shortcomings of extant laws, other ancillary factors
that need to be addressed include: slow and lethargic legislative response,
lack of domestication of international treaty obligations, poor appreciation of
the unique nuances of intellectual property law and practice, need for more
extensive teaching of the subject in our schools, proper training of judicial
and reviewing authorities and the proper regulation of piracy through extensive
enlightenment.

*First presented by John C. Onyido to the staff and students of the Faculty of Law, University of Ilorin, Kwara, Nigeria.

Source: https://bit.ly/2JK2MGE