COPYRIGHT PROTECTION: HOW AUTHORS HAVE DEALT WITH THE INADEQUACY OF THE LAWS

• Isochukwu
• 0
• IP I

In all my research, I discovered that technology advances faster than the legislations. This encapsulates in a situation where the government (through legislation) is constantly struggling to catch up with technological and environmental development. This results in a constant but imperfect amendment of the laws. Loopholes arise in new dimensions which the drafters could never have envisaged.

Against this backdrop; Creators, Authors, Licensors, Owners and other stakeholders began to formulate ingenious schemes rather than putting all their hope of enforcement in the government.

Some of the schemes and innovations by the Stakeholders include:

1. Forming a Joint Front Attack: Under this, various authors with similar interests come under the aegis of an association to enforce their rights. An example is the International Intellectual Property Alliance which was formed in 1984 from a private sector coalition of over 3,200 Stakeholders engaged in the production and distribution of Copyrighted works[1].

This joint force has enabled the authors to challenge major technological giants. For example; the case of Association of American Publishers and the Authors Guild v Google Books[2]: In this case, google incorporation launched a new project (Google Books). The project entails going through the shelves of major libraries around the world and scanning all their books into softcopy which can be accessed by anyone with internet access. The aim was to “put the world’s libraries at our fingertips[3]”. The issue was that some of the scanned books were copyrighted and such scanning and publishing online constituted an infringement. Google alleged that they were improving education and helping the authors market their works. The Authors on the other hand alleged that google earned money from the traffic generated by online visitors and advertisement revenue on their book. The Authors further argued that converting their works to digital format makes it more susceptible to infringement. Google settled out of court by agreeing to pay over USD $120,000,000 to resolve the claim of authors. Further, Google promised to pay 63 percent of the revenue earned from commercial use of the Authors’ works to the authors[4]. Also, in Viacom v YouTube[5]: Viacom was able to successfully sue YouTube for the takedown of certain videos which infringed their rights.

2. Licensing and Royalties: Although various governments have enacted laws that specifically deal with licensing and Royalties. Authors have been ingenious in making specific private agreements which regulate such licensing and royalty schemes. This is apparent in the following subheads:
3. Administration of Royalties through Collecting Societies[6]: The first collecting societies emerged in Europe in the middle of the nineteenth century. A collecting society is a union of Authors with collective interest. They monitor the use of copyrightable material and collect revenue which is distributed to members in form of royalty. The monitoring system has now been expanded to have international reach[7]. The court in Columbia Broadcasting System v. Teleprompte[8] noted that the right to collect these royalties can also be exercised against radio stations.

The system of royalty collection is widely utilized in the United Kingdom[9], United States[10], Filipino[11], Uruguay,[12] amongst others.

In Nigeria, the Royalty Collection System was introduced with the first 1992 amendment of the Copyright Act 1988. The Collecting Society of Nigeria (COSON) and the Musical Copyright Society of Nigeria (MCSN[13]) collect and distribute royalties[14]. In collaboration with the NCC, they have been quite resilient in this regard[15].

1. “Terms of Use” Arrangement: In more recent times, copyright owners usually embed a terms of use contract in their products. These usually contain a number of restrictions on printing, downloading, copying, editing, transferring, disposing, analysing and so on. The user is meant to read through and click; “I Accept”. Such acceptance implies that the user must strictly comply with the terms of use.
2. Subscription Services: Various online websites and databases (Like HeinOnline, Jstor, i-Tunes, Spotify, iRoko Tv[16], iRoking, FreeMe, Amazon, Netflix) now offer paid services. The consumer subscribes by paying a fee (Monthly, weekly, hourly or yearly) to access the contents of the database. The revenue generated is then distributed to the various copyright owners based on the use of their works. Furthermore, customers can subscribe, like, share and follow the artists and their works online. This increases fan base and encourages a more personalised interaction between the Author and his fans.
3. Pay Per View: This arrangement allows the user to communicate with/ view protected content after he has made an online payment for it. If he wants to view/use the content again, he would have to pay. This arrangement usually is affordable.
4. Advertisement-based Revenue Generation[17]: Under this arrangement, an advertisement is annexed to or rendered together with the copyrighted work and the money generated from the advertisement is paid to the Copyright Author(s). This arrangement is becoming widespread because it is convenient for the user and the author[18]. The work is made available for free but the author still makes money. A host of television stations, radio stations, web-databases, smartphone applications and file-sharing platforms have adopted this ad-based scheme as an adaptation to the challenges posed by the Digital Age to Copyright protection[19].
5. Digital Rights Management (DRM): enables copyright owners to restrict the use and access to their works through digital technology which may include encryption, encoding, pin locking, serial key restrictions, Copyright Alert[20] and so on. The keys to such encrypted works have to be purchased by the user. This practice has been approved in Apple computer INC V Franklin Computer Corporation[21] and Sega v Accolade[22]. Although hackers usually create circumventing technologies and schemes[23] to bypass restrictions. This is why Article 11 of the WIPO Treaty 1996 enjoins member-states to make provisions against such circumvention.
6. Auxiliary Revenue Generation: This is more prevalent in the Music Industry. Artistes earn revenue from concert fees, Brand-Ambassadorship, performances, shows, appearances and the likes[24]. Some artistes even pay radio stations to play their music. This would increase their publicity and eventually, their market value. In fact, Musical Artistes make more money from these auxiliary schemes[25] than they do from record sales[26].
7. Creation of Spoof Files and Malwares: Copyright owners have cooperated with some web-database administrators to upload empty files or viruses to deceive infringing/fraudulent users. For example; a file named; “Download Jenifer in Nigeria Movie FREE here” would be available for users that want to watch the movie for free. When a user downloads the file, he discovers that it contains nothing or that it is infected with a virus. A user who considers the possible time and energy that could be wasted on searching for free files coupled with the devastating effects of viruses would rather elect to buy the legitimate copy.
8. Loyalty Bonuses: Authors and Copyright owners now confer additional benefits on users that purchase legitimate copies of their works. For example, a Fan that purchases a record may stand a chance to win a free coupon to the Artist’s Concert or stand a chance to have a personal interaction with the Artist.
9. Open Access: Rather than insisting on revenue generation, certain Authors and Stakeholders have assembled with a view to make works freely available to users who can use, copy and transfer works. Provided the works are not mutilated or amended to prejudice the author’s interest. Most Open Access works are being funded by philanthropic donors. The in International News Service v. Associated Press[27] noted that such open access is premised on the notion that, knowledge should be free and open to common use, just like air.

Notable among these include:

1. The Access to Knowledge Treaty Initiative: premised on the human right perspective that access to information is at the core of human rights.
2. Free and Open Source Software Initiative: This is an initiative by computer programmers who make their works free to users who may donate if they wish. Notable among these include the Linux System developed at the University of Helsinki in 1991.
3. The initiative of the African Virtual University (AVU): which provides an online digital library[28] database with thousands of accessible books.
4. The Social Science Research Network (SSRN): which was founded in 1994 and distributes over two million academic papers.
5. The Public Library of Science (PLoS): founded in 2001, is the best known online scientific publishing platform based entirely upon the open access.
6. The Directory of Open Access Journals (DOAJ) currently lists more than 6,000 journals which are freely accessible.
7. Google Scholar introduced in 2004 quickly became a powerful complement to online access[29].
8. The Creative Commons Initiative (CC): Creative Commons is a global NGO based in San Francisco. It provides alternative licensing schemes which allow authors waive some of their rights. It was officially launched in 2001 by Lawrence Lessig.

CC’s seeks to create; “a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules”[30] This is a novel innovation by the user instead of sitting around and waiting for the government to amend the laws[31]. It presents a pragmatic response to some of the traditional proprietary presumptions of Copyright Law[32]. Under the CC, Authors can relinquish some or all of their copyright in a work as they get to choose which right they wish to reserve and which one they wish to forego^[33]. Such innovation helps to better balance the rights of the Authors against that of the public to access to information[34] and leads to unprecedented possibilities in the future of copyright protection[35].

10. Resolutions (by Stakeholders) to be Compliant: various stakeholders have promised to assist in the fight against copyright infringement. For example; In June 2011, major credit card companies (like Discover, MasterCard, PayPal, and Visa) reached an agreement to develop voluntary best practices to withdraw payment services for sites selling counterfeit and pirated goods. The following month, a group of major Internet Service Providers (like SBC, AT&T, Comcast, Verizon, CSC, and Time Warner Cable) entered into a memorandum of understanding with the content giants (like Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA)) to implement a flexible Copyright Alert System to discourage infringing distribution of copyrighted works[36].
11. Self-Advertisement: Authors now advertise themselves by annexing links to their other works or watermarking their works. This doesn’t generate income but it makes the creator popular.
12. Web-Tracking, “Cache” and “Cookies”: Cookies are used to track users’ web browsing habits and monitor their online activities. This poses a privacy concern but they have been utilized in the fight against piracy.

Whenever you visit a website, search the web, or use a social network, data about your browsing habits can be logged and recorded for months or even years. Over time that data builds up and can be sold to advertisers or used to form a precise profile of individuals[37]

A cookie is basically a small text file that resides on your computer. Within that file, data is kept that lets a site recall your preferences, automate logins, save items in your shopping cart, or allow for tracking[38].

Tracking may also be done with a site that wants to know what a user looks at as to improve their experience on that site. But it can also extend past a single site and a cookie may track your entire browsing session[39].

There are a host of other responses by the stakeholders which cannot be discussed due to volume constraints.

[1] Go to www.iipawebsite.com accessed 20^th September, 2016.

[2] No. 13-4829 (2d Cir. 2015).

[3] Michael M. Lafeber & Lindsey D. Saunders: Copyright Protection in the Digital Age: Google Book Settlement and Beyond, ABA Intellectual Property Roundtable November / December 2008.

[4]You can go to  (http://books.google.com/booksrightsholders/agreement-contents.html) Accessed August 16, 2016.

[5] No. 07 Civ. 2103.

[6] The Right of Authors to Royalty was affirmed in Sound Exchange, Inc. v Librarian of Congress 571 F3d 1220 (D.C. Cir 2009) Also the case of

[7] Birgitt and Richard Kozul-Wright: Copyrights, Competition and Development: The Case of the Music Industry. UNCTAD/OSG/DP/145 2000.

[8] 476 F.2d 338 (2d Cir. 197).

[9] Performing Rights Society of UK. Also, Phonographic Performance Limited (PPL) and the Video Performance Limited (VPL) an agency that represents companies that make music videos.

[10] ASCAP Founded in 1914and BMI founded in 1939 managing performing rights. Then SESAC managing other rights. rack music use on television, radio, the Internet, live venues and other media, determine which music has been performed, and pay the appropriate copyright holders, a royalty income when their musical compositions are performed in those licensed areas

[11] We have the VPL and FRCS.

[12] The General Association of Authors of the Uruguay.

[13] The Musical Copyright Society of Nigeria was formed in 1990, when section 32B and Copyright (Collecting Societies) Regulations, 1993 came into force it applied for approval by the NCC but approval was denied. However in November 1994 the NCC approved the Performing & Mechanical Rights Society, which approval was made public in 1995.

[14] Copyright (Collecting Societies) Regulations, 1993 provided the guidelines for the registration/regulation of Collecting Societies. The Regulation mandated that only one collection society will be established for any class of copyright owners.

[15] It was been  revealed that 31 copyright cases have been prosecuted in 2012 and that the commission also destroyed by public burning 722 million units of various categories of copyright infringing products impounded between 2007 and 2011, estimated at NGN6.5 billion ($40.625 million) (Elebeke, 2013). All these recorded feat notwithstanding, the rate of piracy in Nigeria is still on the high side. Ebele Ojukwu Ibid at 27.

[16] This platform was started in 2010 by Mr Njoku a Nigerian who is currently making waves both home and abroad.

[17] Ana Santos Rutschman: Weapons of Mass Construction: The Role of Intellectual Property in Nigeria’s Film and Music Industries. Emory International Law Review, Volume 29, 2015.

[18] See Generally; Birgitte and Richard Kozul-Wright: Ibid.

[19] This Movie producers are given huge sums by car, laptops, phone and other brands to use the devices and accessories in the film. E.g. for the James Bond 007 movie 2004, BMW (a reputable car manufacturer) paid the directors over 1 billion dollars to use their car in the movie. The Sale of the BMW cars doubled. Therefore, even with the widespread copying of the OO7 movie, the producers still made at least $1,000,000,000 USD.

[20] This technology runs a script/notification message which warns the user when he is about to contravene copyright in the work. If the user proceeds, then it may be difficult for him to claim that his infringement was innocent.

[21] 16 714 F.2d 1240 (3d cir 1983).

[22] CA9 (1992)

[23] Mary L. Mills, New Technology and the Limitations of Copyright Law: An Argument for Finding Alternatives to Copyright Legislation in an Era of Rapid Technological Change, 65 Chi.-Kent. L. Rev. 307 (1989) at page

[24] Ebele Ojukwu, Et Al Ibid.

[25] For example; Peter and Paul Okoye, who make up P-Square make an average of USD 70,000-80,000 per concert. Their endorsement deal with Globacom, (the Nigeria-based, fastest growing telecommunications company in Africa) is worth N240 million for four years. Visit eadership.ng/…/top-10-nigerian-artistes-with-the-biggest-endorsements Accessed 20^th September, 2016.

[26] Ville Oksanen And Mikko Välimäki: Copyright Levies as an Alternative Compensation Method For Recording Artists and Technological Development Review of Economic Research on Copyright Issues. 2005, vol. 2(2), pp. 25-39.

[27] 248 U.S. 215, 250 (1918).

[28] Visit www.avu.org.

[29] Stephen A. Merrill and William J. Raduchel; Committee on the Impact of Copyright Policy on  Innovation in the Digital Era; National Academies Press Washington DC, 2010. At page 45.

[30]See http://creativecommons.org/learn/aboutus. (accessed 4/7/2016).

[31] C M. Kelty, “Culture’s Open Sources: Punt to Culture” (2004), Anthropological Quarterly – Volume 77, Number 3, 547-558.

[32] Eva Garmpi, Alternatives to Copyright. KLS LLM Dissertation. 2004 at page 20.

[33] Dr. Lucie Guibault; Creative Commons: Struggling to ‘Keep it Simple. LILJ 2005, vol. 2, pp. 25-39.

[34] A.K. Goss, ‘Codifying A Commons: Copyright, Copyleft, And The Creative Commons Project’, 82 Chi.-Kent L. Rev. 963, p. 980.

[35] This is conforming with J.Smiers’ et al (2005) position in imagine a world without copyright. In this work, he advocated for the abolition of copyright.

[36] Stephen A. Merrill and William J. Raduchel; Ibid. at page 12.

[37] www.jeffcopublicschools.org/securityawarenesscookies  Accessed 20^th September, 2016.

[38] Ibid.

[39] doa.alaska.gov/ets/security/newsletters/0908Cookies.pdf Accessed 20^th September 2016.