AUTHOR: KINGSLEY UGOCHUKWU ANI, ESQ.
In the past years, it was easier for copyright owners and assignees/licensees to protect their copyright interests in their existing copyrighted works. The reason was simple: works which were protected by Copyright Laws were in the physical domain and it was easier for copyright owners to latch on to members of the using public and merchants that infringed on their works since everything was in the physical sphere and could be readily seen. Once seen, it was relatively easy to get such infringed copies of the copyrighted works out of circulation.
Fast-forward to the technology and soft-driven world of the 21st century, and the same forward, perfect ways of protecting copyrighted works are now more difficult. In the past, it was much simpler, to wit:
- Discover the existence of infringing copies of the copyrighted work and the persons/processes through which the infringement is taking place;
- Swiftly move to the courts with jurisdiction to handle Intellectual Property matters; in Nigeria which is the Federal High Court;
- Obtain an Anton Pillar Order against the party;
- Go with the Order to the establishment where the copyright owner of the infringed work is sure that the infringement is taking place;
- Enter, search and seize all infringing copies of the copyrighted work in the place, the machines and other materials being used to cause the infringement (this will serve as evidence in the course of the prosecution of the matter in an action for copyright infringement);
- Proceed with a court action against the party causing the infringement;
From the foregoing, it was pretty simple and easy to notice infringements taking place because they are taking place in the physical sphere and anyone can see it. It was also very easy – relatively easy – to note the infringing copies and recover them for destruction.
INFRINGEMENT IN THE DIGITAL SPACE
With the swift and monumental advancement of digital technologies, it has become much easier for people to easily pirate the works of others and move them across jurisdictions from the comfort of whatever enclave they are in from anywhere in the world. In other words, copyright infringement is extremely simple and currently widespread in the digital sphere than in the physical environment due to ease of copying and distribution across computers and other digital media.
For example: a writer living and working in Lagos, Nigeria, may publish a novel both in paperback and ebook formats. Within days, or weeks, it is perfectly possible that the ebook copy which is currently being sold by certain authorized ebook sellers (authorized in the sense that they have the permission and license to sell the author’s book through their online platform) may be spread across different torrent sites and reseller sites who transmit and even sell the book without the author’s and publisher’s knowledge and consent. So, while an author may have 17,000 downloads of the work sold legally, 75,000 copies more may have been sold and downloaded and transmitted to several thousands of readers across the infinitesimal Internet stratosphere. All without the knowledge and consent of the copyright owner of the work.
It should be noted that this infringement is not limited or restricted only to books; articles and other means of expression are being copied and infringed upon everyday. Websites’ content are being copied and pasted verbatim in other websites without reference to the original source of the information; Facebook content is being copied from people’s time lines and being transmitted both within and outside Facebook ; the same goes for LinkedIn and several countless other mediums being used currently.
THE FIGHT BETWEEN COPYRIGHT OWNERS AND CONTENT INFRINGERS
There are the copyright owners of the works in the digital space on the one hand and the infringers/copyright fighters on the other hand.
While copyright owners believe that their works should be adequately and fully protected by the existing extant local and international laws which are geared towards the protection of the works of creative individuals, the latter group are firm proponents of the belief that the works in the digital space should be readily available for use by anyone who wishes to have access to same. To them, it doesn’t matter whether or not the intended users have paid or are willing to pay in order to acquire the works in question. Parties in this camp are those that operate and download from peer-to-peer torrent download sites on the Internet and those that hold the “Fair Use” view of the use of copyrighted works. They are of the view that information should be freely available and easily/readily transmitted in this New Age.
Unfortunately, the latter camp is winning.
The reason: the sheer, uncontrollable speed and spread of digital technology has fast made the traditional crackdown and enforcement of copyright nearly impossible. With the rise in the use of, and production and distribution of digital copies of physically available work, it is extremely easy for holders of such digital works to transmit them across different jurisdictions and to different people from the ease and comfort of a home computer terminal. And in spite of the fact that the operators of the business models that make copyright protection an integral part of author protection set in place different mechanisms to aid in the protection of the works of their authors, principal among which is the utilization of DRM to minimize or even halt the transmission of purchased works from the purchaser to other unauthorized readers, the fight is tilting easily in the favor of those that infringe on copyrighted works in the digital domain.
CAN COPYRIGHT HOLDERS WIN THE FIGHT IN THE DIGITAL DOMAIN?
Copyright infringement in the digital domain usually takes the form of peer-to-peer content sharing and torrent downloads, both of reading materials and audio-visuals. And in many cases (if possible, almost all cases of infringement), copyright infringement crosses borders and encompasses people living in different jurisdictions across the world, operating under different legal systems that would most likely differ in substance with each other.
In a situation where a popular fiction author domiciled in Sweden publishes a work via an American publisher, digital infringement of such a work may encompass a peer-to-peer file sharing Web site operator domiciled in Australia who hosts the infringing copies of the (originally legally purchased) work and visitors who visit the Site and download the work from Asia, West Africa, North America and New Zealand. In this instant case, trying to clamp down on the individuals involved would undoubtedly prove to be a herculean task which would be impossible to achieve without monumental costs to the copyright owner and his agents. The next best option would be to report the copyright infringement to the site owner and request a take-down of the infringing material.
While it is true that there is the need for the works of copyright holders to be protected against infringement of same in the course of the holders’ enjoyment of the exclusive right to manipulate their intellectual property rights, there is still need to take into consideration the fact that the Internet and everything about it has made it easy for works to be copied and distributed. And such copying and distribution may most likely not take into consideration the rights which the copyright holders in protected works own and seek to protect.
Kingsley Ugochukwu Ani Esq. is an Attorney with core focus on IT, IP, Commercial Litigation & General Corporate/business advisory services. He can be reached on firstname.lastname@example.org or via phone through +2347035074930. He can also be reached through his Linkedin profile.