by Rita Anwiri Chindah, ACIArb

Introduction

With the introduction of the Internet, more than ever before, creators and authors now have access to wider audience anywhere in the world. This gives authors and creators the opportunity to share their literary work, musical, and artistic works publicly. Since the use of social media has rapidly become a part of the daily lives of billions of people online, the creators’ legitimate expectation as copyright owners is that by sharing their work online, they benefit both culturally and economically, and also gets to enjoy the recognition that comes with the moral rights of attribution. But if the alarming rate of copyright infringement in social media today is anything to go by, it’s a different story. 

What is social media and how does it affect copyright? 

Margaret Rouse defines social media as “the collective of online communication on channels dedicated to community-based input, interaction, content sharing and collaboration. Examples of popular social media networks include Facebook, Google +, LinkedIn, Pinterest, Twitter, WhatsApp, YouTube, and Vine.

Issues have arisen in relation to whether works shared on these platforms without permission or authorization of the author or creator amounts to copyright infringements. My answer is in the affirmative. 

A person who creates a literary, artistic, or musical work has copyright over the work. As provided in section 5(1) of the Nigerian Copyright Act, copyright in literary, artistic, and musical works shall be exclusive right to control acts such as reproducing the work; publishing the work; performing the work in public; producing, reproducing, performing or publishing any translation of the work; making any cinematograph film or a record in respect of the work; distributing to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement; broadcasting or communicating the work to the public by a loudspeaker or any other similar device; make an adaptation of the work. Though these restrictions are subject to fair dealing, they allow any individual to do some of the acts above without authorized permission, if the purpose of carrying out the act is for example, research or educational purposes.

Therefore, sharing a copyrighted work on social media without the author’s permission is effectively “publishing the work” or “communicating the work publicly”, thus amounting to copyright infringement. 

Does fair dealing/fair use completely excuse copyright infringement? 

Without critically analyzing the issues, most people are quick to rely on the principles of fair use or fair dealing to excuse their infringing acts on social media. This belief is wrong. Fair dealing/fair use does not excuse every fact under the sun. It has certain conditions. 

For example, Mr A shared a music or video of an author on a social media platform and a number of people who are privy to access Mr A’s page download the work. Would this be considered to be fair use/fair dealing or copyright Infringement?

Let’s define theses terms so you get a clearer picture. According to the Black’s Law Dictionary (6th edition), ‘infringement of copyright’ is “the unauthorized use of a copyrighted material; i.e. use without permission of copyright holder.” Techopedia says it is the unauthorized use of an author’s work or “violation, piracy or theft of an author’s work” eg texts, photos, videos, music, software and other original content.”

As already captured in section 5(1) of the Nigerian Copyright Act above, a copyright holder has exclusive rights to reproduce, distribute, rent, perform, display, translate, adapt and related rights.

Oliver Herzfeld and Marc Aaron Melzer in ‘Fair Use In The Age Of Social Media’ highlighted the four factors courts use to determine whether an act constitutes fair use or amounts to infringement. These four factors are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

These fair-use conditions are similar to conditions for fair dealing as stipulated under the Second Schedule to the Nigerian Copyright Act). Under that Schedule, unauthorized use of a copyrighted work will not amount to copyright infringement if use is for any of the following only purposes:

1. Reviews or news reports
2. Education 
3. Research purposes and Private study
4. Parody, pastiche, or caricature

So would Mr A’s action be considered to be fair dealing or copyright infringement?

Having stated what amounts to fair dealing (and how courts determine fair use), we can now correctly answer the question. Mr A’s action of sharing a copyrighted work on social media would amount to copyright infringement if it doesn’t meet the conditions for fair dealing or fair use. Even if Mr A’s purpose of sharing the work is considered fair, for example, educational purposes, it is most likely that Mr A would be caught by the conditions in c or d above: (c) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (d) the effect of the use upon the potential market for or value of the copyrighted work.

So my advice is? It’s safer to stop sharing copyrighted works on social media because it is most likely going to amount to copyright infringement. 

The “Virtual Damage” the Internet Has Done to Copyright in the Digital Age

According to Heike Wollgast, WIPO Enforcement and Special Projects Division in ‘IP Infringements on the Internet–Some Legal Considerations’, the absence of territorial limits on the Internet, along with the scope it offers for anonymity, has opened the door to infringement of Intellectual Property Rights (IPRs), new in both nature and scale.

Copyright infringement online or in the digital age can be considered to be the “virtual damage” done to copyright holders who have no control as to how far and wide their works travel. 

Regarding how difficult it is for copyright owners to control the publication, distribution, and use of their works online, there are many questions but few answers. Below are questions surrounding the enforcement of IPRs provided in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)

1. Whom to sue? – Difficulty in identifying the infringer;
2. Where to sue? –Issues of cross-border/territorial actions, in relation to jurisdictional competence, applicable law and issues bothering on enforcement of a judgement in another country;
3. The risk of being sued abroad; and
4. Issue on being properly acknowledged, attributed, or recognized.

The current practice on social media now is the use of such words or phrases as “Copied” when the source of the post being shared is unknown. Others criminally claim authorship, with little or no changes made to the original work.  Using ‘Copied” suggests that the person posting the work is lazy and couldn’t care to investigate source. Whenever you find a piece on social media and you have no idea who the author is or what the source of the work is, forget “Copied”. Imbibe the discipline of not sharing the work. When you share a copyrighted work and say “Copied”, you are most likely a part of a chain of copyright infringers on the Internet. Respect copyright.

Whenever in doubt regarding the authorship of a work, don’t assume the work is not copyrighted. In Nigeria and most parts of the world, copyright protection is automatic upon creation of an original work. By virtue of the Berne Convention of 1886 to which Nigeria is a signatory, any eligible work is automatically protected by copyright once it is created and put in a fixed medium of expression. Section 1 of the Nigerian Copyright Act lists such eligible works to be literary works, musical works, artistic works, cinematograph works, sound recordings, and broadcasts. The accession to the Berne Convention by the Federal Republic of Nigeria was done 14 June 1993. 

So if you must post, publish, or share a work on social media or on the Internet, ensure that your make out time to trace authorship, if the author of the work is not readily known. If you can’t trace authorship, let it go.

Social media features such as reposting, retweet, quote tweet, share, broadcast, copy and paste, delete etc made available to us, should not be abused and misused. Abuse or misuse may cause “harm to copyright holders who lose income and to those who unknowingly violate copyright law”.

Five Vital Things You Should Consider When Using Copyrighted Works 

1. Author’s (or Publisher’s) Permission/Authorization: This could be in the form of a license that is signed and agreed between the parties with the terms binding them. It could also cover a broad set of uses given in advance and falls within the scope.
2. Terms And Conditions/Copyright Policies Of Social Media Sites: Take the time to read the terms and policies regarding copyrighted works on the social media site(s) you are registered with or opening an account.
3. Copyright License: Before you post that copyrighted work make inquiries if it is licensed by the copyright holder. 
4. Copyright Restrictions: Even when you are given the right to use or share a work, there may still be some restrictions in relation to how to use or share the work legitimately. Always check the copyright page, of a book. 
5. Whether orphan work or public-domain work, treat it right: that the author of a work is unknown or the work is now in the public domain (copyright has expired) does not excuse copyright infringement. Always acknowledge and attribute source so you don’t become a victim of copyright infringement action. If you are not sure, don’t use and don’t share.