- 1.0 INTRODUCTION
“What turns me on about the digital age is that you have closed the gap between dreaming and doing. You see, it used to be that if you wanted to make a record of a song, you needed a studio and a producer. Now, you need a laptop.”_ Buno.
Digital technology is arguably one of the finest creations of the human mind and has managed to permeate every sphere of life in what is now known as the digital age. There are varying definitions of the age but one which has expressed its intricacies in the simplest terms is offered by Collins Dictionary thus; Digital age/ information age is a time when large amounts of information are widely available to many people through computer technology.
It is a corner stone in the building of the global village in which we now live. Technology has opened the gate to a wide range of access and possibilities in different sectors of life including information, entertainment, education etc. Thus, it is no surprise that the world of intellectual property protection has been caught up in this web and in order to thrive must move with the flow of technology. This essay will specifically address the need for an effective licensing system in the digital age with particular reference to the Nigerian Copyright Act.
2.0 NEED FOR AN EFFECTIVE LICENCING SYSTEM IN DIGITAL AGE
Copyright is legal right that grants the creator of an original work (literary or artistic) exclusive right to its use and distribution, usually for a limited time before it enters public domain— Section 5 of the Nigerian Copyright Act, Cap C28, LFN 2004. Pursuant to Section 1 of the Nigerian Copyright Act, Cap C28, LFN 2004 works eligible for copyright in Nigeria include; literary works, musical works, artistic works, cinematograph works, sound recording and broadcasts. Notably, unlike Patents, this right does not protect ideas; its protection is restricted to the protection works (expressed ideas) and there is no requirement for the work to be good or have artistic merit as long as it is original.
This right is transferrable to another party through assignment or license— Section 10 of the Nigerian Copyright Act, Cap C28, LFN 2004. In assignment, the copyright owner sells the copyright to another party leading to his loss of copyright control. However, in the case of licensing, a permission’s agreement is entered between both parties in which the copyright owner retains ownership but the licensees can legally have some or all of the copyright owner’s rights. The license could be exclusive or direct (open to the licensee alone), non-exclusive or collective (open to multiple licensees).
However, under the Nigerian law, Section 10(2) of the Nigerian Copyright Act, Cap C28, LFN 2004 provides that an assignment or testamentary disposition may be limited so as to apply to only some of the acts which the owner of the copyright has the exclusive right to control, or to a party only for the period of the copyright, or to a specified country or other geographical area. It further provides in Section 10(3) of the Act that no assignment of copyright and no exclusive license to do an act, the doing of which is controlled by copyright shall have effect unless it is in writing.
The question arises, what is the need for a more effective licensing system in the digital age?
In response to that, aside the fact that the system recognized by the law does not reflect pace with the evolving times where systems are going virtual and digital especially in the wake of the novel pandemic that fast-tracked the digital pace, there is also the effect of digitalization exposing the copyright to infringement without the knowledge of the owner, or where in his knowledge, but having difficulty in locating the root of infringement. This will be addressed in the subsequent paragraphs.
On the first issue of non-evolution with the times, the requirement that assignment or exclusive license will not have effect unless it is in writing is evidently back-dated in a world where online contracts, electronic signatures, use of digital codes and block chain technology is steadily gaining recognition. The world has so evolved in digitalization that physical contact will soon take the back-seat in transactions of this nature. Recently, the COVID-19 pandemic subjected the world to total lockdown but activities and transactions were still possible because of digitalization. Many countries have taken the cue from the incident to reform their laws to suit a virtual world. In fact, the recently signed Companies and Allied Matters Act 2020 reflected this by introducing a provision for virtual meetings of companies—Section 240(2) of the Companies and Allied Matters Act 2020. The copyright act needs reforms of this such to keep pace with the changing times.
On the second issue which is just as pressing as the first, the information age birthed by digitization has made for easy access to materials of all sorts on the internet. Like Buno implied in his quote, today all that is needed for unlimited access to materials in the internet is a smart phone and internet connection and this poses great concern for copyright infringement. Digitization has made it easy to copy, replicate and sell the works of a copyright owner without license and detection of such becomes difficult. The internet which is one of the machineries of digitization has varying degrees of works including e-books, graphics and cinematographs, all with varying copyright protection. However, the bulk of information available on the internet not only makes it difficult to determine whether they are duplicated works but its corresponding access also makes it difficult for the owner of a work to know whether his copyright has been infringed. The tools for perpetration of copyright infringement in a digitalized world include hot-linking, multimedia work, downloading and uploading of works, social-media reposting without adequate reference to the owner of the work etc.
For clarity, of the stated point, an instance of cinematography will be adduced. Section 5(c )(i-iv) of the Nigerian Copyright Act, Cap C28, LFN 2004, vests in the copyright owner the exclusive right to make a copy of the film, cause the film to be seen in public, make any recording of any part of the sound track associated with the film or distribute the film to the public for commercial purposes. This right can only be exercised by a licensed person or group of persons or by assignment which is usually cinema operators when the film is newly produced. However, you find that these days a new movie that has not been released to public domain (still restricted to cinema viewing) for generation of income are being accessed and download by many on their phones and personal computers from different sites. These sites are able to access the movies by electronic means or recordings and proceed to distribute the same on their domain for visitors or interested persons to access. This is a glaring case of copyright infringement and there is no employment of available digitalized method to track the perpetrators or prevent them from accessing the copyrighted work in the first place. The law has also not incorporated the available digital means to do that in its content.
To beat setbacks occasioned by digitalization, protection and licensing must also be digitalized and there are recommendations to this effect that should also be recognized by law. First is the block chain technology. Being a highly decentralized public ledger that can record peer to peer transactions, parties can agree in details to encode it into a the block of digital data that can be uniquely signed and identified. Another method is the use of digital water marks. This could help the owner trace his work and prevent it from duplication since the water mark embedded in the work makes it easy to detect unauthorized copying, Access and copy controls could also be utilized to help a user check the creator on illegal use of his work.
In respect of a more effective licensing system to suit the times, digitalization of licensing is also relevant through the use of online contracting, electronic signatures, use of generated codes and digitalized detecting systems to ensure a person is licensed before access a copyrighted work.
Conclusively, these digitalized techniques should also be recognized by the law to give them legal backing. If copyright protection and licensing must remain relevant in a digitalized world it must go digital or we would risk being stagnant and inefficient in a fast paced digital world.
About the Author
Kalu Rejoice Chioma is a law student of the University of Nigeria. She has interests in corporate law, human rights, intellectual property law, public speaking, research and advocacy, and a strong desire to rise to the best of her abilities in the legal world and beyond.