Over the years, authors and artistes have been faced with infringement issues across the world. In the era where hardcovers thrived, copyright authorities were able to curtail infringement to a very large extent. Also, the cost of reproduction and printing of books heavily discouraged infringers as they faced almost as much costs pirating as purchasing the original work. However, the reduction of books, multimedia disks and CDs/DVDs to electronic files capable of being shared over digital platforms, serving as an easy medium of sharing and sale of these files, has also brought about several infringement concerns.
The advent of social media as a prominent mode of communication in recent times has led to increase in content sharing, including sharing of copyrighted works, on social media platforms including Facebook, Eskimi, Instagram, WhatsApp, Snapchat etc. These digital platforms are fast becoming full-featured publishers of protected material, with users sharing copyrighted books, content, movies, songs, and photos etc., usually without the authorization of the copyright owners. The discretionary copying, publishing sharing, reposting of copyrighted works continue to raise genuine concerns amongst stakeholders with regard to the legality of these activities. The challenge is determining the extent to which a member of the public can repost protected content on social media without contravening the laws which permit the sharing of copyrighted works in many jurisdictions. Likewise, there is also the consideration of whether an Internet Service Provider (“ISP”) can be held liable for the infringing actions of a user on its platform.
This article examines the borderlines between legally permissible sharing of files on social media/digital platforms generally, and the protection of the rights of an author or creator in his/her original work. In doing this, we evaluate the use of peer-to-peer networking, cloud storage and social media in sharing of files as well as possible liability for ISPs. Also, the possibility of raising the first sale doctrine as an exception to the protection from unlawful reproduction or online distribution of copyrighted works, among other things, is examined. This is evaluation is conducted through the lens of Nigerian law, whilst also taking a cue from the US position.
- File sharing on digital platforms
File sharing is the practice of distributing or providing access to digital media, such as computer programs, multimedia (audio, images and video), documents or electronic books.2 File sharing has evolved overtime, from a tedious physical-only process to a full-fledge digitized process.3 The advancements in technology and communication networks has optimized the file sharing process by largely eliminating human interface for a real-time transferability of files and data among users in consummating the sharing activity. Thus, with the proliferation of smart and internet-enabled devices, literary works, audio and video content, etc., now available as digital files, are very easily transferable through various modes such as peer-to-peer (“P2P”) programmes like the Napster or Limewire, cloud-based file synchronization and sharing services like Dropbox or Google Drive, social media platforms like Facebook or LinkedIn, as some examples.
One of the first modes of digital file sharing was via the P2P system.4 The basic premise of peer-to-peer file-sharing networks is to allow communication between nodes (or computers) which are linked together on the system without necessarily identifying the different nodes on the network.5 Each of the computers connected together in a file-sharing network may be either a client or server and the file-sharing software determines the method of connecting them together into one huge network.6 There is an advancement in the P2P technology with recent innovations including the Blockchain technology which allows encrypted communication and file-sharing between nodes connected together without a central administration. The decentralized P2P system, which is an array of nodes connected over the internet has enhanced the transferability of documents and files with minimum checks.7
Further, with the efficiency, and largely safe nature, of cloud systems, producers of copyrightable works are also exploiting cloud solutions to remotely save files and proceed to making them accessible to consumers. For example, such systems as Apple Music, Boomplay Music and other applications for streaming music affords users the opportunity to lawfully purchase songs already made accessible on the system by the administrator and producer of the music. However, while some of these applications only allow downloads onto the application domain itself, others allow purchasers to download the songs to their domestic servers (or their local storage devices like memory cards or smart devices). Consequently, some of the purchasers proceed to share these files with unauthorized third parties. Although this could successfully pass for an exception to the first sale doctrine,8 the fact that the first-shared file is usually further passed on multiple times to other parties raises certain copyright issues. First, does a party to whom a file has been shared acquire immediate ownership of the file or is merely a lessee of the file who is bound by the terms of such rental? What if there was no rule not to further share or deal with the file in a way that deviates from the protection of the first sale doctrine? In any case, what seems apparent is that generally, where the initial acquirer of the file shares to a third party within his right under the doctrine, the third party acquires no further right to share the document.9
Some users also quote lines from books or previous speakers. For instance, the Nigerian hip-hop artiste, Naira Marley, was accused of stealing other people's quotes without giving credit to the real authors.10 Sometimes, copyright infringement actions are also brought against ISPs usually on the ground of passive collusion for not taking down the offending content on request.11 However, these liabilities are mitigated by indemnification clauses in agreements between most ISPs and the users.12
- Legality of Sharing of Copyrighted Works on Digital Platforms without Permission.
Legal systems around the world provide for the framework for allowing the sharing of copyrighted works over the digital platforms. But quite importantly the laws usually seek to protect the intellectual property rights of the copyright owners. For instance, the Copyright Act13 (the “Act”) which is the legislation for protecting and administering copyright in Nigeria, vests certain exclusive rights in the author of a copyrighted work, such as right to reproduce the work in any material form, produce, reproduce, perform or publish any translation of the work; to distribute copies or phonorecords; copy, distribute and publish copies of the work for commercial purposes, or make any adaptation of the work.14 The owner of the rights can assign or license them in exchange for royalties. However, the law provides for an exemption to the use of copyrighted works without payment of royalties to the owner, if justified on the basis of fair dealing.15
The fair dealing doctrine posits that a person can reproduce copyrighted materials for purposes such as research, criticism, comment, news reporting, scholarship, private use and for general educational purposes.16 It is an attempt to strike a balance between the rights of the owner of the work to protect the work and the right of the public to access the information. Comparatively, the draft Copyright Bill17 provides certain factors to be considered in determining what will amount to fair dealing. They include:
- The nature of the work;
- The amount and sustainability of the portion used in relation to the work as a whole;
- The effect of the use upon the potential market for or value of the work; and
- If the use does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the owner of copyright.18
In the sections below, we will now examine the right of a copyright owner to reproduce and distribute the protected work.
Reproduction in its ordinary sense means to produce copies, cause to exist again, to imitate closely, or to translate a recording to a sound.19 This right provides that no one other than the copyright owner may make any reproductions or copies of the work. Thus, the reproduction right of the author would be said to have been infringed when a copy of the work is transferred to a third party. Examples of such acts include “copying and pasting”, uploading pictures, online music, transferring and sending files without the authorization of the author of the work.
A major cause of concern for copyright owners is the commercial losses associated with the fact that a person may purchase a product and then makes it available for download and sharing on the internet. This economic consideration of the fair dealing doctrine on the potential market for copyrighted work usually leads to loss of royalties and other benefits that would have ordinarily accrued to the author. The right of an author to reproduce his digital works is recognized internationally. It is provided for under the Berne Convention for the Protection of Literary and Artistic Works 1886 (“the Convention”).20
- Distribution and the First sale doctrine
The distribution right vests the exclusive right to make a work available to the public by sale, rental, lease or lending in the copyright holder. It allows the copyright holder to prevent the distribution of unauthorized copies of a work and to control the first distribution of a particular authorized copy.21 However, the First Sale doctrine curtails the right of a copyright holder to restrict the distribution or resale of his/her works once it is placed into the stream of commerce. Essentially, the doctrine posits that the “owner” of a particular copy of a work is entitled, without the authority of the “original” copyright owner, to dispose of that copy.22
The philosophy of the doctrine is that an original author “loses” its exclusive rights to a work upon the sale of the work. Thus, the right of an original author to sell does not include right to control all future retail sales in relation to the particular copy.23 The intention of the court in formulating the doctrine is to protect the rights of a buyer or acquirer of an intellectual property in a work to deal with the right in that work in a manner reflective of his position as the new owner of such work. However, the conundrum lies with the applicability of the First Sale Doctrine to digital works.
Today, transfer of files is largely done electronically, with copies of the files made before onward transfer to the final recipient. This process involves both reproduction and distribution of the shared work which is a limitation of the First Sale doctrine in relation to most digital transfers – it protects only the distribution of sold (used) works and not the reproduction of such work. Thus, it may not protect a transfer between users of a digital platform as a typical transfer over a digital platform involves the duplication (or reproduction) of the original copy before eventual distribution. Restating that the First Sale doctrine protects only the distribution of sold (used) works and not the reproduction of such works, extending the doctrine of First Sale to the transfer of files across digital platforms may therefore breed attendant difficulties and possibly economic implications for the copyright owner. The difficulty will be in determining the extent of the scope of the First Sale doctrine if extended to digital works, since it is difficult to distribute digitally without duplicating (reproducing) the works.
Liability of the ISPs.
The US Approach to Protection of Copyrights on Digital Platforms.
The fair use doctrine and its limitations are well recognized in the US. Although, a number of activists are clamouring for the extension of the first sale doctrine to digital sales, the law as it is does not make such provisions. Also, to further protect the rights of authors in the emerging digital economy, the US Digital Millennium Copyright Act (“DMCA”) provides for limited liability of ISPs in relation to platform user copyright infringement. An ISP would not be liable for a user's infringement, save and unless the ISP is aware of such infringement and has failed to take necessary steps to take down such posts. Typically, the ISP is expected upon the lodging of a report, to take down the post or disable access to it or even shut down the user's account. Where the latter is done, the copyright owner must act expeditiously in seeking redress in court or the user's e-access would be restored. The DMCA also protects copyright in relation to file sharing.
Securing the rights of copyright owners to exploit their work has proven difficult in light of the easy mode of reproduction and distribution of files over the net, which is a corollary effect of digital communications. A case may be made for the sharing of content on social media as being for entertainment purposes. This cannot, however, be excused or legally regarded as fair dealing. Considering the fact that a great number of musical, cinematographic, artistic and literary works are actually produced for the viewing, listening and reading pleasure of the consumers/public, the transfer of a copyrighted work to another person over the net for reasons other than those specifically classified as fair dealing would amount to an infringement of the rights of the copyright owner.
ISPs specifically have roles to play, albeit limited and this has been clearly defined in jurisdictions such as the US. The Nigerian Communications Commissions (“NCC”) has issued Guidelines for the Provision of Internet Services (“the Guidelines”)24 which imposes a duty on the ISPs to set out procedure for receiving and promptly responding to content related complaints, including any notice to withdraw or disable access to identified content as well as liabilities of ISPs in relation to such matters.25 As laudable as this step by the NCC is, a robust legislation clearly defining the duties of the ISPs and attendant liabilities in relation to copyrights specifically will be more appropriate and is thus recommended as provided for in the draft Copyright Bills.2627
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1 Oreoluwa Adebayo, Associate Corporate Finance & Capital Markets Department, SPA Ajibade & Co., Lagos, Nigeria.
2 Wikipedia, ‘File Sharing' available at https://en.wikipedia.org/wiki/File_sharing, accessed on 18/12/21.
3 Infotechlead, ‘Evolution of File Sharing and its Method', available at https://infotechlead.com/software/evolution-of-file-sharing-and-its-method-63571, accessed on 18/12/21.
4 In June 1999, Napster released the first unstructured centralized P2P system which required a central server for indexing and peer discovery. See: https://www.britannica.com/technology/P2P In companies, the centralized P2P system is usually exploited for sharing files and information within the organization between the staff. P2P systems are usually powered by Bluetooth or internet-based communication services. See: ibid.
5 Lars E. Daniel, “Digital Forensics for Legal Professionals”, (2012) Ch. 36.
7 Blockchainhub, ‘What is Blockchain?', available at http://blockchainhub.net/blockchain-intro/ accessed on 18/12/21.
8 The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. See: “Copyright Infringement — First Sale Doctrine”, available at https://www.justice.gov/archives/jm/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine, accessed on 19/12/21.
9 Ibid. See also: Richard Stim, ‘What Rights the First Sale Doctrine Gives to a Purchaser of a Copyrighted Work', available at: https://www.nolo.com/legal-encyclopedia/the-first-sale-doctrine.html accessed on 19/12/21.
10 Twitter, available at https://twitter.com/Demo__UK/status/1187282682125979649, accessed on 17/12/21.
11 Harvard Law, ‘ISP Liability for Copyright Infringement', available at accessed on https://cyber.harvard.edu/property99/liability/main.html, 20/12/21.
13 Chapter C28 Laws of the Federation of Nigeria 2004.
14 Section 5 of the Act.
15 Guobadia, D, “Fair Dealing and Copyright in Nigeria,” (1989) 2/4. See also: Yewens v. Noakes, (1880) 6 Q.B.D 538.
16 Second schedule to the Act.
17 NCC, ‘Draft Copyright Bill', available at http://graduatedresponse.org/new/wp-content/uploads/2016/02/DRAFT_COPYRIGHT_BILL_NOVEMBER-_2015.pdf, accessed on 22/12/21.
18 Supra at S. 20.
19 Merriam-Webster dictionary.
20 The Convention states thus: “The reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention”. Nigeria is a signatory to the Convention.
21 Bitlaw, ‘Rights Granted Under Copyright Law', available at https://www.bitlaw.com/copyright/scope.html, accessed on 19/12/21.
22 Supra, n 9.
23 Brookings, ‘Why Copyright Law allows you to borrow a book but not share a digital song', available at https://www.brookings.edu/blog/brookings-now/2014/06/09/why-copyright-law-allows-you-to-borrow-a-book-but-not-share -a-digital-song/amp/, accessed on 20/12/21.
24 Nigerian Communications Commission, ‘Guidelines for the Provision of Internet Services', available at https://www.ncc.gov.ng/docman-main/legal-regulatory/guidelines/62-guidelines-for-the-provision-of-internet-service/file, accessed on 20/12/21.
25 Paragraphs 15 and 16 of the Guidelines.
26 Supra, n. 17 at Part VII.
27 See section 29 – 37, Copyright Act repeal and re-enactment Bill, 2021 available at https://nass.gov.ng/documents/download/11019, accessed on 22/12/21.
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