1. Executive Summary
1.1 According to Harvard Law Professor, Lawrence Lessig “The fear is that cyberspace will become a place where copyright can be defeated.” Copyright and related rights embrace a wide spectrum of human endeavour and activity. Most of the creative content that underlies that functionality of the internet is subject to Copyright. Under the Copyright Act C28 Laws of the Federation of Nigeria 2004, Copyright protection extends to all literary works, musical works, artistic works, cinematograph films, sound recordings and broadcast. This protection includes diverse forms of human creativity, such as writings, both fiction and non-fiction, including scientific and technical texts and computer programs; musical recordings; audiovisual works; works of fine art, including drawings and paintings; and photographs.
1.2 Digital technology provides an effective means for the transmission and (re)use of these works subject to Copyright protection in a packet-switched network. These digital technologies also provide an avenue of the Copyright infringement of these works. Given the capabilities and characteristics of digital network technologies and the rate at which the internet is fast becoming an ubiquitous phenomenon, it is essential that statutory provisions are enacted to accommodate recent changes in these technological development in order to ensure that digital technology does not undermine the basic principle underlying the protection of Copyright and related rights.
1.3 The internet on its own has become one of the biggest threat to the creation of Copyright content because of its vast potential to make unlimited number of copies, almost instantaneously, without degrading the quality and transmitting these works to locations around the world in a matter of minutes. This disruption of technology has altered traditional markets selling everything virtually Copyrightable. In the music industry, for example, the emergence of “killer apps” such as peer-to-peer technologies (for file sharing) has unfortunately enabled the exploitation of music recordings on a monumental scale absent the required authorization of the rights holders. This exploitation has further been exacerbated by the simultaneous broad commercialization of CD burners and portable MP3 players, adapted to the most commonly used file format.
1.4 Unfortunately, these challenges are currently facing the Copyright industry at a time when the share of Copyright in the Nigerian economy is reaching unprecedented levels. In 2010, UNESCO declared that Nollywood, Nigeria’s homegrown movie industry has the largest production of films in the world, with the UNDP/UNCTAD 2010 Report valuing the industry at N522 billion (USD2.75bn). This significance has further reinforced the necessity for Copyright industries to seek out technical and legislative solutions to protect Copyright from digital piracy.
1.5 It is therefore critical to amend existing frameworks to respond to the challenges posed by new digital technologies in the appropriate manner, and to do so quickly and responsibly, because these technologies and markets is an evolution in continuous progress. This will ensure the continued furtherance of the fundamental guiding principles of Copyright and related rights, which remain constant whatever may be the state of technological development: giving incentives to creators to continue to create and disseminate new creative works; recognizing the importance of their contributions, by giving them reasonable control over the exploitation of these works and allowing them to profit from them; providing the appropriate balance for the public interest, particularly education, research and access to information; and thereby ultimately benefiting the Nigerian economy as a whole, by promoting the development of culture, science, and innovation.
1.6 Recently, the Nigerian Copyright Commission (“the Commission”) made available to the public, the proposed draft bill for an Act to amend the Copyright Act CAP C28 Laws of the Federation of Nigeria 2004 to provide for better protection of Copyright in the digital environment, the Commission also invited comments from the public in respect of the proposal.
1.7 The respondent is currently the Secretary of the ICT Committee of the Section of Business Law (SBL) of the Nigerian Bar Association and a Solicitor in the Information Technology and Telecommunications Practice of Streamsowers & Köhn. In his current capacity he regularly advises an international Mobile Network Operator and other communications’ market operator on matters of regulatory compliance. The respondent has also developed substantial expertise in all areas of information technology & telecommunications law such as intellectual property on the internet, privacy & data protection, cyber crime & cyber security, competition & consumer protection in telecommunications market and domain name dispute resolution amongst many others.
1.8 Respondent comments frequently on IT/Telecoms regulatory matters in the “matters e-Rising” and business law column of the Nation Newspaper Thursday’s edition and Business day Thursdays editions respectively. Respondent is a member of the Nigerian Bar Association, Chartered Institute of Arbitrators (CIArb) UK and BCS (The Chartered Institute for IT) and an alumnus of the WIPO Worldwide Academy in Geneva.
1.9 Respondent’s memorandum is in respect of only; Section 18A-Takedown of Infringing content and Section 18B- Graduated procedure for suspension of accounts of repeated infringers of the proposed Bill
1.10 The summary of Respondent’s conclusions are that; the Bill should provide safe harbor provisions, expand the definition of Internet service providers to include Online service providers and that graduated responses may likely be challenged on the basis of its legitimacy and should as a matter of serious concern provide stricter controls for due process.
2. Section 18A- Takedown of Infringing content
2.1 This section provides;
1) An internet service provider shall, take down or disable access to infringing content or links to such content, hosted on its systems or networks, promptly upon receiving notice of infringement from an owner of copyright or otherwise becoming aware of the infringing activity or of facts or circumstances from which infringing activity is apparent; and
a) Notify the owner of copyright promptly that the content or link has been removed or access to it has been disabled;
b) In the case of removal of content without prior notice to the owner of copyright, the Internet service provider shall attempt, with reasonable effort, to locate the relevant owner of copyright and notify him of the removal of the content or link
2) The Internet service provider may resume access to or restore removed content or a link, if he receives a written counter notice from the subscriber which he has forwarded to the owner of copyright immediately upon receipt; and did not receive, within 10 days, a notice from the owner of copyright, indicating that no authorization has been granted for the subscriber to make the content available.
3) The Internet service provider shall not be liable to any person for an claim based on the service provider’s good faith disabling of access to, or removal of, link or content claimed in a qualifying notice to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the content or activity is ultimately determined to be infringing.
4) A notice required under this section to be given shall contain such information and particulars as the Commission may prescribe by regulations.
5) For the purpose of this section, the term “Internet service provider” shall mean an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of a material of the user’s choosing, without modification to the content of the material as sent or received.
2.2 This section seeks to enact the general duty of an internet service provider (ISP) to take down a content alleged to be infringing a Copyright. The notice and takedown procedures regulate an ISP’s obligation to react appropriately when informed about irregularities on websites made available through them. Typically under such procedures, a complaint by notice informs an ISP that it is granting access to an illegal content (notice) and requests that the content in question be removed (takedown). These procedures establish a “red-flag” test whether ISPs have knowledge of subscribers’ illegal activity and thus are subject to secondary liability for Copyright infringement. The standard to which they are held is “becoming aware of the infringing activity or of facts or circumstances from which infringing activity is apparent.” Once the ISP receives proper notification of the infringement, the “red-flag” test is presumed to have been satisfied.
2.3 Also by this provision, an ISP will not be held liable to its subscribers because of the removal or access-blocking when it is done in good faith because it has received a proper notice or knows on its own that the material is infringing. Note that the liability provided by this section covers only the taking down or disabling access to infringing content or links to such content. It does not sanction the large scale removal of a subscriber’s material, particularly material that does not infringe, unless that is necessary to disable access to, or remove, the allegedly-infringing material. For an ISP to benefit from that provision, the ISP must take reasonable steps (not extraordinary effort) to notify the subscriber of any takedown, and if the subscriber contests the takedown, must restore the material within 10 days if notice that the subscriber was authorized to make the content available is received from the copyright holder.
2.4 Nevertheless, both copyright holders and ISPs may have incentives to use the system; for copyright holders, notice and takedown provides a faster and cheaper solution to enforcing their rights outside the court room arena, while from the ISPs’ perspective, a prompt response to the notification reduces liability for infringement. Notice and takedown procedure is not mandatory and litigating claims of Copyright infringement in the court will always be the best option.
2.5 The need for safe harbor provisions
As earlier stated, the notice and takedown procedure provides a “red-flag” test whether ISPs have knowledge of users’ illegal activity, hence it is possible for claims of vicarious or secondary liability for Copyright infringement to be instituted against ISP who have failed or refused to take down a content alleged to be infringing. The possibility of such an occurrence makes it necessary for the Bill to provide safe harbor provisions. Safe habor provisions usually exist in copyright statutes for ISPs to limit their exposure to secondary liability for copyright infringement when they are involved in the following categories of conduct;
2.5.1 Mere conduit:
A provision limiting the liability of ISPs for Copyright infringement when they act as mere conduits will be engaged only where the ISP does not initiate the transmission, does not select the recipients of the information and does not modify the content of the information.
This provision is engaged in the case of temporary storage of information performed by ISPs for the purpose of efficiently transmitting the information to other recipients of the services. In such cases liability will not exist for ISPs on the condition that they do not modify the content, the ISP complies with the condition of access to the information, the ISP complies with the rules regarding the updating the information, specified in a manner acceptable to industry standards and acts expeditiously to remove content alleged to be infringing. This provision may also provide for the possibility of a court or administrative authority to require ISPs to terminate or act proactively to prevent infringements.
An ISP that stores information at the request of its users will escape liability provided that, the provider does not have actual knowledge of illegal activity and the recipient of the service is not acting under the control of the ISP. Once an ISP becomes aware of any facts or circumstance indicating an illegal activity, the ISP must act expeditiously to remove or disable access to the information. This provision may also provide the possibility of a court or administrative authority to require ISPs to terminate or prevent an infringement by establishing procedures for the removal of content.
2.5.4 Case laws on this type of copyright liability usually suggest some form of notice based standard. As earlier stated, the standard here is “becoming aware of the infringing activity or of facts or circumstances from which infringing activity is apparent.”
2.6 The Bill defines “Internet service provider” too narrowly
Much of the legal literature on this subject have tended to draw a distinction between ISPs providing access to the internet (which the Bill contemplates) and Online service provider (OSPs) which also include ISPs, email service providers, social network service providers (facebook, You Tube, etc), various online forums and bulletin boards and even “good old” Google and Wikipedia. The implication of this definition is that only traditional ISPs granting access to the internet would come within the meaning of “Internet service provider” under the Bill while other OSPs capable of making Copyright content available online, would escape responsibility under the Bill.
3. Section 18B- Graduated procedure for suspension of accounts of repeated infringers.
3.1 This section provides:
1) An Internet service provider shall adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.
2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the owner of copyright.
3) A policy of termination referred to in subsection 1 shall require the Internet service provider, upon receiving a notification from an owner of copyright or his authorized agent that a particular account has been used for repeated infringement, to:
a) promptly send a warning to the subscriber whose IP address has been identified, explaining that this conduct is an infringement of copyright and a breach of the terms of the policy and informing the subscriber of the potential consequences;
b) after the first such notification, promptly send a second warning to the subscriber clearly stating that another notification will lead to suspension of the account and requiring the subscriber to confirm receipt of the second warning; and
c) after the third such notification relating to the same account, if no challenge is pending pursuant to subsection (4) below, promptly suspend the account for a period of at least one month.
4) A subscriber receiving a warning shall have the ability to bring a challenge to the notice on the grounds of mistake or misidentification as follows:
a) Within 10 days from the date of the warning from the Internet service provider, the subscriber shall send a signed counter-notice to the Internet service provider, providing full contact details and the factual basis of his or his belief that his or her account has been misidentified as being used for copyright infringement, or that the use of the copyright content was not infringing.
b) If the basis for the challenge cannot be resolved by the Internet service provider within 5 days in the case of a challenge regarding an alleged account misidentification, or by the Internet service provider and the owner of copyright within 10 days in the case of a challenge regarding alleged lawful use of the copyright content, the counter-notice shall be referred to the Commission who may appoint an independent adjudicator to determine the validity of the challenge.
c) Any warning successfully challenged by the user shall not count towards the suspension process set out in subsection (3) and any contact details of the subscriber in relation to this warning will not be retained or used for any purpose by the owner of copyright.
5) The Internet service provider shall retain for a period of at least 6 months data sufficient to enable it to comply with the provisions of this section, including data indicating which subscriber account is using which Internet Protocol (IP) address at a given time.
6) If the Internet service provider fails to comply with subsection (2) of this section, the complaining owner of copyright shall be entitled to a court order requiring the Internet service provider to promptly comply with that subsection; and the court may, in making the order, make such consequential orders as it may deem fit in the circumstances.
7) An Internet service provider acting in good faith in suspending the account of a subscriber, relying on the information contained in a notification referred to in subsection (3) of this section, shall not be liable to any person for any claim based solely on that suspension.
3.2 This section seeks to enact the general duty of ISPs to adopt and implement a graduated response scheme. A graduated response scheme popularly referred to as the “three strikes Internet disconnection policy” or simply “three strikes” allows copyright holders to monitor internet subscribers and identify alleged copyright infringers. After contacting the ISPs of the alleged infringer, the ISP would then warn the subscriber (identified as the infringer); the alleged infringing subscriber would eventually be disconnected from accessing the internet after receiving three repeated warnings from the ISP.
3.2 In practice, the three strikes would require copyright holders to monitor network traffic and data content of internet subscribers using deep packet inspection tools in order to identify possible cases of copyright infringement, for example, via the surveillance of forums, blogs or by posing as file sharers in peer-to-peer (p2p) environment to identify file sharers who allegedly exchange copyright material. After identifying subscribers alleged to be engaged in copyright violation by collecting their Internet Protocol addresses (IP addresses), copyright holders would send the IP addresses of the subscriber to the relevant ISP who would warn the subscriber to whose account the IP addressed has been traced to, about his/her potential engagement in copyright infringement. Being warned by the ISP a certain number of times would automatically result in the ISP's termination or suspension of the subscriber’s Internet connection.
3.3 The graduated scheme under this section raises the fundamental questions of legitimacy; Is the termination of internet account reasonably proportionate to the offence of Copyright infringement?
3.3.1 Proportionality of the graduated response scheme
One of the core principles of proportionality in Nigerian criminal jurisprudence is that the “punishment should fit the crime.” Nigeria unlike other legal systems does not provide punitive damages but however under the present Copyright Act, damage can either be compensatory or restitutive. The proportionality of been disconnected from accessing the internet is underscored by the fact there seems to be uniformity in agreement that the internet is important in our daily lives. In this age of information explosion, it is not surprising to hear claims that accessing the internet should be a fundamental right. In the celebrated Australian case of Roadshow Films Pty v iiNet Limited, Cowdroy J rightly observed; “one does not need to consider access to the internet to be a human right to appreciate its central role in almost all aspects of modern life.”
3.3.2 Disconnection from the internet on the basis of Copyright infringement is very problematic in that it will in most cases affect all members of a house hold or the entire staff of the corporate entity, not just the subscriber named in internet service contract. To fully comprehend the enormity presented by this question, we must first understand the basic working of the internet and how IP addresses are assigned.
3.3.3 The internet and assignment of IP address
Computers connected to the internet communicate with each other by means of a common language, or protocol, called the Internet Protocol (“IP”). Data sent by means of the IP is broken up into small “packets”. Computers sending and receiving data are allocated IP addresses, which enable packets to be exchanged (in much the same way that postal addresses enable mail to be exchanged). Such IP addresses are sold in blocks to ISPs, and ISPs allocate IP addresses to their subscribers. The identity of the ISP to whom a particular block of IP addresses has been sold is publicly available information. Where a subscriber’s computer is directly connected to the internet (through a modem), the ISP will assign a public IP address to that computer. However, many computers are not directly connected to the internet, but are instead connected to a “router” – a device which can “route” data between a private network of computers. Where a subscriber’s computer is connected to a router, the router will be directly connected to the internet (through a modem), and the ISP will assign a public IP address to the router. Where multiple computers are connected to a router, all of those computers will be able to access the internet – but only the public IP address assigned to the router will be visible to other computers on the internet. As such, a public IP address does not necessarily correspond to a specific person or computer (Problem 1). ISPs usually allocate “dynamic” IP addresses to all of its residential or non-corporate subscribers – this means that the IP address by which a subscriber’s computer or router connects to the internet will change over time. Systems are normally instituted by ISPs enable it to identify the subscriber account to which a particular IP address has been allocated at a particular time, but not necessarily the specific person or computer using that IP address which may be several (Problem 2).
3.3.4 The problems highlighted is relevant to the extent that an allegation that an IP address was used for committing Copyright infringement is not always indicative that the person traced to the IP address was the person engaged in the Copyright infringement at the relevant time. Even though the Bill provides in this section that the subscriber identified by the IP address can challenge the disconnection on the basis of mistake and or misidentification, but the onus of proof has now unfortunately shifted from the Copyright holder to the subscriber. Since most households or corporate subscribers do not keep logs of all internet access by people on the internal network, it is unclear how the subscriber could reasonably be expected to prove that s/he was not responsible for an infringement that apparently came from her/his IP address. It is also worth mentioning that the Bill does not address how internet access is to be denied to a particular member of a corporate entity or household.
3.3.5 The monitoring of network traffic and data content is likely to trigger many cases of false positives. Copyright infringement is not a straight ‘yes’ or ‘no’ question. Often courts will be called in to examine a very significant quantity of technical and legal detail over dozens of pages in order to determine whether there is an infringement and the fact that the independent adjudicator may not be legally trained and is not bound by the rules of evidence is likely to have a strong chilling effect on socially beneficial but unlicensed uses. These types of uses covered by the statutory defence of fair dealing, will require the user of Copyright materials to make a judgement about whether their otherwise infringing conduct is permissible under the law.
3.3.5 The EU Telecoms Reform Package expressly requires that any graduated response measure “may only be imposed if they are appropriate, proportionate and necessary within a democratic society.” This requirement of proportionality seeks to ensure that a graduated response scheme is, on the whole reasonably justified method of addressing Copyright infringement.
3.3.6 The severity of disconnection in each particular case should be guided by a consideration of the extent or serious nature of the infringement. Piracy the large scale infringement of Copyright for commercial gain is the clearest case. This type of infringement is already criminalized and subject to penalties under the present Copyright Act. Graduated response scheme under the Bill seems to be targeted at individual infringement that is not intended for commercial gain, at users who download infringing copies of copyright works for personal use. In my view, the severe penalty for termination is hard to justify under this circumstance. The problem is further highlighted due to the fact that there is little empirical evidence to suggest that graduated response scheme is likely to reduce Copyright infringement online.
3.3.7 As a matter of serious concern and to safeguard the rights of internet users, the Bill must; provide that the independent adjudicator must as a minimum understand the nature and the extent of the right granted under the present Copyright Act, and must provide a right to appeal the decision of the independent adjudicator (appointed by the Commission) to the Federal High Court.
4.1 The summary of my conclusions are that; the Bill should provide safe harbour provisions, expand the definition of Internet service providers to include Online service providers and that graduated responses may likely be challenged on the basis of its legitimacy and should as a matter of serious concern provide stricter controls for due process.
4.2 It is now twenty nine (29) years since the internet launched operationally, twenty four (24) years since the present Nigerian Copyright Act was enacted and fifteen (15) years since the internet access service was commercialized in Nigeria. The draft bill for an Act to amend the Copyright Act CAP C28 Laws of the Federation of Nigeria 2004 to provide for better protection of Copyright in the digital environment has long been overdue and if enacted will be a wonderful milestone achieved by the Commission.