Introduction

Copyright infringement which can simply be referred to as piracy is the use of creative works belonging to creatives protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights allotted to the Intellectual property (IP) rightsholder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The Nigerian Copyright Act 2004 makes piracy illegal in Nigeria.

Online piracy in Nigeria has gained momentum with a lot of websites engaging in file sharing for users to download.[1] The Nigerian piracy scene does not frequently feature large file uploads of above 1GB with most users lacking the ability to afford large amounts of data bundles required for large file downloads. The piracy scene features web uploads of files ranging from 2MB – 600 MB. The most commonly pirated files are music files, movies and TV series, with a plethora of websites dedicated to providing two or three of the above-mentioned file services.

According to the Disruptive Creative Economy Meeting[2] (DCEM), digital music consumption in Nigeria overtook physical consumption circa 2013 and market revenues from physical sales, which have been declining steadily year on year, are now dropping to well below $10m. Due to the mass acceptance of social media and its ability to simultaneously reach a broader audience in multiple jurisdictions, it is not uncommon for the sharing of copyrighted content on these internet intermediaries.[3] The ease of acceptance and speed at which social media works has made the sharing of illegitimate copyrighted content swift.

The Nigerian Copyright Commission has made several attempts[4] at fighting piracy but its efforts are yet to be noticed on the internet space.

A Failure to Stop Online Piracy

The Nigerian copyright space has been left bereft of a watchdog to curtail the activities of online copyright infringers commonly known as pirates. The inaction of several regulatory bodies and private enforcement efforts has also led to the proliferation of copyrighted content. This content is therefore accessed by users who should have paid for these services and product. The effect of the lack of a combative measure to combat piracy as led several persons to believe that all IP content should be free and made available to all Nigerians.

The Nigerian entertainment & media industry according to PWC[5] is currently valued at the sum of 3.7 Billion dollars, while this report focuses on the total value of the industry it does not give a direction on the blockage of these illegal activities.  It is estimated that the Nigerian creative sector loses a large sum of money to pirate groups and the emerging group of online content providers simply referred to as blogs (inclusive of dedicated music blogs and download link sharing websites).[6]

The piracy scene in Nigeria can best be described as an unfettered freeway with little or no rules as a lot of the platform owners do not believe they are breaching the law. They feel it is a privilege to provide Nigerians with premium quality content to gain revenues from ad serving platforms. Such platforms that upload illegal content have, therefore taken advantage of the lack of knowledge on most consumers and the failure of the relevant stakeholders to stop illegal downloads.

A simple search on Google goes on to show that the internet intermediary famed for blocking content use allowed under the fair usage[7] principle[8] has not done much to combat the spread of illegal content over the Nigerian internet space. Web platforms such as netnaija, fztvseries amongst other websites sharing songs and albums belonging to artists continue to operate unhindered. Internet intermediaries such as Google, Bing account for 23% & 21% of visitors to netnaija and fztvseries[9].

While Google, Bing and other search engines are not under compulsion to stop access to these platforms, the intermediaries[10] may be passively liable under the provisions of Section 14(1)g of the Nigerian Copyright Act 2004 for allowing unrestricted access and acting as a conduit to copyrighted content without taking measures to stop these downloads.

A failure to stop the spread of copyrighted content would continue to lead to the loss of more revenue for IP rights holders and owners. This revenue which ought to be generated to maintain the growing Nigeria entertainment and media industry would, therefore, be lost to persons seeking to profit from adverts/crypto miners[11] which create a lengthy value gap[12] between the service providers and product users. In a time of evolving markets and new businesses. It is essential that the rate of illegal file sharing be reduced as this would improve the protection of IP rights.

Conclusion

In tackling the scourge of online piracy which is not protective of the rights of IP owners and holders, emphasis should be placed on legal alternatives and educating internet users of the rationale that copyrighted content comes with a price. In policing the internet, the ISPs should not be mandated to become the police of the internet as doing so would be granting the legitimisation of private enforcement. A joint effort between regulatory bodies, copyright holders/owners, right societies, internet intermediaries and telecommunications service providers would be a very effective way of reducing online piracy in Nigeria.

In dealing with persons that seek to gain from IP theft, it is essential for regulatory and rights societies to pursue means of addressing the root causes of IP infringement. The authorities and rights owners may involve the use of the following;

  1. End-user blocking and filtering (parental control) with consent, which can be regarded as a very effective mode of dealing with IP infringements.
  2. Educate users on legal and illegal alternatives. This is also being propagated by Google in some parts of the world and can be utilised as an alternative to blocking injunctions.[13]
  3. Reduce prices or utilise subscription-based services such as Boomplay, IrokoTV for premium content to convert nonpaying customers to regular paying customers.[14]
  4. Encourage the use of Freemium[15] services which provide basic content for free and premium content for a price.
  5. The use of Digital rights management (DRM) technologies have been specifically developed to prevent online IPR infringement[16]. This is the generic term for a set of technologies for the identification and protection of intellectual property in digital form. It should be noted that for every trademark infringement there is a DRM tool addressing the infringement.[17]
  6. Voluntary or legal ‘geo-blocking’ e.g. which is the blockading of certain IP Addresses which spread copyrighted content.

Adavize Alao is a Nigerian Digital economy lawyer With expertise in Intellectual Property Law & Data Protection

 

[1] ‘Nigeria Loses N918trillion To Piracy Annually | Sahara Reporters’ (Sahara Reporters, 2019) <http://saharareporters.com/2019/04/27/nigeria-loses-n918trillion-piracy-annually> accessed 4 July 2019.

[2] Nigerian Recorded Music Industry Report (1st edn, Disruptive Creative Economy Meeting ( 2019) <https://dcemafrica.com/download/551/?uid=4f6dec2c71> accessed 4 July 2019.

[3] Internet intermediary refers to a company that facilitates the use of the Internet. Such companies include internet service providers (ISPs), search engines and social media platforms.

[4] Newton Media, ‘Nigeria Reveals Plans To Tackle Online And Digital Piracy’ (World IP Review, 2019) <https://www.worldipreview.com/news/nigerian-government-plans-clampdown-on-online-piracy> accessed 4 July 2019.

[5] Entertainment And Media Outlook: 2018 – 2022 An African Perspective (PWC 2018) <https://www.pwc.co.za/en/assets/pdf/entertainment-and-media-outlook-2018-2022.pdf> accessed 3 July 2019.

[6] Nigerians don’t stream they download

[7] Fair use is an exception to an IP holders exclusive rights. It is an equitable rule of reason, which permits the Court to avoid a rigid application of a holder’s exclusive rights when on occasion, it would undermine the purpose of the Copyright Act

[8] Mark Butler, ‘The Trouble With Youtube’ (wow247, 2016) <https://www.wow247.co.uk/2016/02/04/fine-brothers-i-hate-everything-copyright-strikes-the-trouble-with-youtube/> accessed 4 July 2019.

[9] Thenetnaija.com Competitive Analysis, Marketing Mix and Traffic <https://www.alexa.com/siteinfo/thenetnaija.com/> accessed 4 July 2019

[10] Search engines

[11] The Pirate Bay Website Runs a Cryptocurrency Miner (Updated)  https://torrentfreak.com/the-pirate-bay-website-runs-a-cryptocurrency-miner-170916/

[12] A value gap is the mismatch between the value that these intermediaries extract from music, and the value that is returned to rightsholders or in this case pirates

[13] Accordingly, Google in the EU and USA has launched a number of initiatives to present legitimate alternatives to people as part of search results, including providing advertisements on queries for movies and music to link people to legitimate means of purchasing content or finding movie showtimes in local theaters Google Blog – How Google Fights Piracy 2018 Report –<https://www.blog.google/documents/25/GO806_Google_FightsPiracy_eReader_final.pdf> accessed 11th November 2018

[14] Share With Care: Danish ISP Blocks Point ‘Pirates’ to Legal Alternatives <https://torrentfreak.com/share-with-care-danish-isp-blocks-point-pirates-to-legal-alternatives-181009/> accessed 11th November 2018

[15] A combination of the words “free” and “premium,” freemium is a type of business model that involves offering customers both complementary and extra-cost services.

[16] Foot Anstey LLP, “Online infringement of IPRs” <http://www.footanstey.com/images/stories/publications/Final_PLC_Online_Infringement_Article_pdf_-_11_08_1515732764_1.pdf > Last accessed 11th November 2018.

[17] The technology enables IPR holders to control access to their protected materials by removing the consumer’s control over their use of the file, and ensuring that only those with valid permission can use it, resulting in IPR holders ensuring that they receive payment for their investment. However, DRM has its limitations. Therefore, IPR holders should be advised to select the most suitable form of DRM for their IPR in order to achieve the protection required without violating valid users’ rights to access the content. Examples include encryption and online monitoring.