by Nana Nwachukwu
Illegal transfer of intellectual property is considered as intellectual theft in the UK even if you are sharing what you downloaded from UC Browser via WhatsApp.
Copyright owners face a major problem based on the right granted them by Article 8 of the WIPO Copyright Treaty and Section 5 of the Copyright Act of Nigeria as the internet spreads information like wildfire[1]. Peer to Peer (P2P) sharing has made it exceeding difficult to control the movement of copyrighted material on the internet[2]. Imagine the news on one blog gets copied the exact same way and posted without authorization. Then the links to such article go from one BBM chat to another. Yes, Online Newspapers are protected by Copyright too.
It has become a seen practice for offline users to take materials from the internet and place in books or journals which still get sold or published online. Irony huh?
In all these, we seem to forget the people behind the scene. The ISPs. Those who provide the platform for plagiarists and other users too.The ISPs are the gateways to the digital world and provided the access and needed platform for the uploading, downloading or any online transaction at all required by the Copyright user. The ISPs should be more involved in checkmating actual piracy online but not exactly P2P as long as it is not for profitable purposes.
Illegal transfer of intellectual property is considered as intellectual theft in the UK[3] even if you are sharing what you downloaded from UC Browser via WhatsApp. The internet and P2P networks came upon the public as a tornado and as such a lot consider any accessible material as available for copying. Few people realize that rights exist in a digital world and as such, it is essential to educate and enlighten individuals as to the boundaries of the rights of a user and the rights of a holder. Every action must also bear a consequence[4] however outlawing a P2P network my not be a sufficient deterrent. Remember Limewire? It did not stop anything. Several other have popped up.
Finally, the requirement of the ISPs to restrict access of a user[5] in the EU and to remove infringing content from the web where such infringement is reported by the Copyright holder[6] invariably puts the Copyright holder on a spot making it its own watch dog. It imposes on the holder the obligation to monitor any extraneous activities on his work. It removes liability from the ISP even if it is aware and it has not been reported as infringing. On the other hand, a user is lawfully entitled to his internet access and has his/her right to privacy and the ISP will be infringing on his/her privacy like a peeping tom looking behind the curtain at the contents of his/her transactions.
In Australia, the illegal Sharing of Copyrighted materials via P2P networks are not encouraged however, the liability of the ISPs are not exactly codified and have been left to the interpretation of the Courts[7] and this is causing a problem. In Canada, P2P file sharing is regarded as sharing for personal use and is excluded from illegality. Bill C-32 of 1997 legalized sharing of music for personal uses in Canada. The Canadian government is making plans towards amending the Copyright Act to include the extent of liability of ISPs as their position is not clear[8].
What does the law sound like in Nigeria? There is no express onus of liability on the part of the ISPs in Nigeria but recently, I have been looking at Section 14 of the Copyright Act of Nigeria Cap 68 LFN 1990.
14. (1) Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright-
(a) does, or cause any other person to do an act, the doing of which is controlled by copyright;
(b) ………………….
(c) exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;
Do you see what I am insinuating from the emphasised lines? The ISPs cause the plagiarist to ‘do an act’ but then it can be construed that they do not know and cannot tell? Perhaps there should be a law drafted in this regard to be able to construe when ignorance of an ISP is a defence to infringement of copyright.
Take a look at Google, they have the safe harbour from the DMCA which even if Google knows it is an infringement, they would not act except the owner requests a takedown notice with proof of ownership.
As much as I am eager to make the ISPs watchdogs for Copyright in Nigeria, it has concerns. ISPs identify users by their internet protocol addresses. The challenge arises where the IP address has been hacked or hijacked; it is difficult to trace the offender[9]. Secondly the infringing IP address may not be registered in the Nigeria. Finally, the ISPs would require proof of infringement from the Copyright holders who would report. Such proof may be difficult to present[10].
Take a look at where blogs make money of the number of hits they have and someone take your really juice short story and plasters all over his blog after you have published on yours. Various avenues to one story reduces the hits and as such the cash flow.
Somehow though, we are a little bit lucky most ISP IPs in Nigeria have their servers in the US and as such you could file that takedown notice after all without any hindrance but then is a takedown notice real justice?
[1] Copyright, Designs and Patents Act UK, s16 grants an author to right of communication to the public reflecting the position of the WCT.
[2] H.K. Larusson “Uncertainty in the Scope of Copyright: The Case of Illegal File-Sharing in the UK”, 31 European Intellectual Property Review, 124 at 134 <http://login.westlaw.co.uk.ezproxy.liv.ac.uk/maf/wluk/app/document?&srguid=ia744d05e0000013aa418fc06c18b56fb&docguid=IDE3322C0E45111DD8BEBE47BB36F59BF&hitguid=IDE3322C0E45111DD8BEBE47BB36F59BF&spos=1&epos=1&td=1&crumb-action=append&context=9&resolvein=true> accessed 27th October 2012
[3] Final Report of Digital Britain (June 2009) <http://www.culture.gov.uk/images/publications/exsumchpt9_digitalbritain-finalreport-jun09.pdf> accessed 27th October, 2012
[4] “Mother to settle web music charge BBC News 20th August 2005”. BBC News. (20 August 2005) <http://news.bbc.co.uk/1/hi/england/gloucestershire/4166784.stm.> accessed 27th October 2012
[5] Digital Economy Act, 2010 s3-16
[6] (n2)
[7] Nicole Soussan, ‘ISPs Find Relief Down Under: AFACT v. iiNet Ltd’. (March 22, 2011) Vanderbilt Journal of Entertainment & Technology Law <http://www.jetlaw.org/?p=6009> accessed 27th October, 2012
[8] Andrew Bernstein & Tyson Dyck, ‘ISP Liability: Canada Proposes Copyright Reforms’ (May, 2004)Media Law Letter, 51-52 <http://www.torys.com/Publications/Documents/Publication%20PDFs/ARTech-42T.pdf> accessed 27th October, 2012
[9] ‘The Digital Economy Act 2010 – Implications for UK Colleges and Universities’ (July, 2010) JISC Legal Information <http://www.jisclegal.ac.uk/Portals/12/Documents/PDFs/DEA%20Guidance.pdf> accessed 27th October, 2012
[10] ‘Digital Britain: UK plans to reduce unlawful file-sharing’ (1 July, 2012) FatDrop <http://blog.fatdrop.co.uk/digital-britain-uk-plans-to-reduce-unlawful-file-sharing> accessed 27th October, 2012
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Nana Nwachukwu is a person who likes to put out her thoughts the way it is. It could be logical, it could be passionate or both. An ICT enthusiast who works on developing solution-based ideas and practises Law sometimes
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.
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