ANALYZING THE COPYRIGHT AND INTELLECTUAL PROPERTY RIGHTS BREACHES ON SOCIAL MEDIA: TIKTOK AS A CASE STUDY. (PART 1) By Atusiuba Chukwuebuka, Esq.

 

INTRODUCTION

 

The internet age brought with it new areas of law and also questions that would have not been envisaged when the original law was made. Law to moderate the activities of the internet to wit social media has been taken on by the legislatures of several counties to varying degrees o success. However, there is still a litany of areas or aspects/ concepts of law that is in constant opposition with what is obtainable on the internet. Nigerian law and the Berne Convention provides that, unlike trademark which should be registered in other to protect it against use by any other party without permission from the person who holds the registered trademark, Copyright works a little different from that.

 

UNDERSTANDING COPYRIGHT

Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from literary works; musical works artistic works; cinematograph films; sound recordings; and broadcasts[ Section 1 (1) Copyright Act 2004]. In the majority of countries, and according to the Berne Convention, copyright protection is obtained automatically, once the idea is brought to reality. However for a work to be protected under copyright it must

1. Sufficient effort has been expended on making the work to give it an original character.

2. The work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.[ Section 1(2) Copyright Act 2004]

The above therefore implies that the expression of an original idea in whatever medium automatically protects the author and she/he need not register it. This protection ensures that no other person or entity can use the copyrighted work without permission or in such a way that falls under the exceptions to copyright protection.

 

This leads to the matter at hand which is the way Copyright is handled by the Internet. Before 1980, the sign © was used as a way to show that a work was copyright protected. In countries party to the Berne Convention for the Protection of Literary and Artistic Works, including the United States, a copyright notice is not required to be displayed for copyright to be established; rather, the creation of the work automatically establishes copyright in line with the Berne Convention.

 

To that end, many of the books and artistic works still include this sign to their work even after it has been adjudged not to be necessary for establishing authorship and ownership of the work.it must be stated here that Intellectual Property Rights are protected even on the internet and there are several cases to prove the same.

 

THE CASE OF THE INTERNET.

However, because of the large number of users and the method of the breach, many breaches of Copyright Laws and others of the like are breached without consequence. The Internet has been characterized as the largest threat to copyright since its inception. The Internet is awash in information, a lot of it with varying degrees of copyright protection. Copyrighted works on the internet include news stories, software, novels, screenplays, graphics, pictures and even email. The frightening reality is that almost everything on the internet is protected by copyright law. The vulnerability of internet copyrighted materials is dire in the internet age mainly because of the ease of engaging in illegal copying, sharing, downloading, and streaming of copyright materials.

 

Some cases have however been taken to court and the US court have given a decision on it. In Playboy Enterprises Inc. v. Frena, ( 839 F. Supp. 1552 (M.D. Fla. 1993) the court held that digitized photographs from the adult magazine appearing on Frena’s bulletin board service infringed the magazine’s public distribution and display rights. The court reasoned that at the end of the exercise, the user had a copy of the work: thus, someone had infringed the reproduction right, either the user or Frena. It is an interesting question whether Frena might be liable for contributory infringement if the user was the infringer. The court did not deal with the infringement of the reproduction right because it was uncertain whether the operator of the bulletin board system had reproduced the works when they were uploaded and downloaded by users of the system. A later case also involved Playboy material. In Playboy Enterprises v. Event Horizon, the magazine sued for copyright infringement after the defendant scanned magazine material and made it available on a bulletin board. The case settled for $500,000.

 

WHO THEN IS TO BLAME FOR THE BREACH OF COPYRIGHT LAWS ON THE INTERNET?

Internet service provider (ISP)

This is an organization that provides services for accessing, using, or participating in the Internet. Internet services typically provided by ISPs can include Internet access, Internet transit, domain name registration, web hosting, Usenet service, and colocation. There is no doubt that the buck can not rest on the actual internet providers as they just make available a service that can be used by anyone and it is not their job to moderate the content of the internet.

 

Micro Blogging Sites

Facebook, Instagram, Twitter and other microblogging sites maintain and control the contents on their platform. This is a sense bring the liability for the breach of the copyright law on their sites to them. These micro-blogs have a complaint system where you can report the breach of one copyright protected right. Even with that, the system is not effective. However, the breach has to be very massive before the claimant files actions in court.

 

One of such cases was when Plaintiff Christopher Boffoli filed a complaint against Facebook for copyright infringement. The complaint was filed in the Washington Western District Court. The plaintiff is represented by Newman & Du Wors Law.

 

Boffoli alleged that “Facebook’s customer posts photographs from Big Appetites without license or permission from Boffoli on webpages housed on Facebook’s platform.” Facebook allegedly did not prevent users from posting the copyrighted material on its platform and it failed to prevent the content “from being accessible over the Internet despite notice from Boffoli.” Facebook did not remove this infringing content or prevent users from posting this type of content, despite allegedly having the power to do so. However, cases like this always end with a settlement by both the Microblogging sites and the claimant.

 

Long-form Video hosting Sites

Youtube and other long-form video hosting sites have one of the most arranged systems of protection of copyright and the reporting system is very reliable. The AI flags all potential copyright breaches especially as it relates to Music and Melody. A complaint can also be made and the user who uploaded the video that contains a copyright breach has the option of either demonetizing that particular video or sharing the financial benefits from the video. Some other times the financial benefits go to the complaint in its entirety. More work needs to be done on the YouTube AI system but it is a step in the right direction.

 

Short Form Vidoe sites

TikTok and Snapchat fall under this category and because there will still be the second part of this presentation, we will leave the explanation for that part.

 

Internet User

There are very rare occasions where the individual who committed the breach would be personally sued. There is a litany of reasons why this is but one of which is that the location and address, personal information that will be needed to institute an action can not be gotten. So most of the time it is only when a Multi-National that the person whose copyright is breached will sue. Goldman v. Breitbart News Network LLC et al. saw a settlement out of court after a widely-criticized decision for partial summary judgement in favour of the photographer, whose photo had been included in an embedded tweet without permission.

 

Conclusion

Most of the breaches of Copyright outside the internet and immediately and quickly corrected either by court order or agreement by both parties. However, the internet and online breach present a more and less straightforward way of resolving it except with Youtube which is an almost perfect system. This article will however like many stories on TikTok have another part so that we can dive deeper into the topic. This work has however provided a good base on which we can make the case against TikTok and other short-form

Leave a Reply

Your email address will not be published.