The foundation of the Internet is anchored on its ability to spread information. It is a powerful tool that elevates and adds value to vital human rights, specifically the freedom of expression and the right to information.
No doubt, the Internet is saturated with a repository of rich and diverse online content. Yet, experience has also shown that some of these online content could be very offensive on many fronts, thereby violating existing laws (child pornography, right to privacy and dignity, and property rights such as intellectual property) that could lead to criminal trial and civil litigations. Consequently, this can lead to a dire, huge monetary compensation or criminal indictment that could stunt the growth of the Internet. This is one of the reasons the legislator had to adopt the protective measure in the form of the Digital Millennium Copyright Act (DMCA).
The object is not far to fetch. It is almost difficult for the Internet Service Providers (ISPs) to screen every material on their sites by a third party to assess whether each is licensed or falls within the wall of fair use against the background of millions of viewers seeing and posting their videos online.
One of the raison d`etre for this write up is to point out those compellable facts that can actually arm-twist Internet Service Providers like YouTube or other similar sites to pull down materials on their sites. The act of removing materials by the ISPs, based on a copyright claim by a third party is done in actualisation of the provisions of the Digital Millennium Copyright Act 1998. This piece of legislation is traceable to the United States of America.
Before the birth of this legislation, ISP or Internet intermediaries were subject to direct control by the courts through a combination of statutory and common law norms of liability. With the enactment of this legislation, the powers of the courts were whittled down in the matters relating to content posted on the sites of the Internet intermediaries by a third party, and a kind of conditional immunity conferred on Internet intermediaries that perform the access, storage and linking online content.
These Internet intermediaries are best suited to control the transmission of unlawful materials. But the legislators through the aforementioned piece of legislation have adopted a protective posture to accelerate Internet free speech, mindful of the fact that they can flourish if these Internet intermediaries are allowed the space and freedom to grow their technology without legal hindrance and distraction. In a nutshell, the whole idea of providing conditional immunity to Internet intermediaries is to open the floodgate of growth in the sphere of technology for a greater freedom of speech on the Internet, but at the same permitting copyright owners to enforce their rights in the online World.
The conditional immunity given to the Internet intermediaries that offer hosting and linking services is predicated upon implementing a notice-and-takedown scheme that permits right owners to have infringing material deleted from their sites almost immediately. It must also be noted that compliance with the DMCA safe harbour is optional and voluntary.
And it is solely upon compliance that the safe harbour becomes a shield that can protect the Internet intermediaries against litigation. That is to say the notice-and-takedown scheme is a condition precedent that must be observed to be able to enjoy the conditional immunity given by the law to the Internet intermediaries.
In short, the “notice and takedown” sections of the Digital Millennium Copyright Act regulate how the copyright owners and Internet companies would share responsibility in dealing with online copyright infringement. The DMCA, no doubt, has assisted the ISPs to have escaped ruinous copyright liability, and thereby making them to do business responsibly. It is a superpowerful tool set up against pirated content. It is on record that copyright owners sent more than 345milliom and 500million takedown requests to Google in 2014 and 2015 respectively. And the takedown requests keep increasing at an alarming rate in subsequent years.
How does the DMCA safe harbour “notice and takedown” work? According to Chris Spring and Mark Lemley, in their article titled: ‘Why notice-and-takedown is a bit of copyright law worth saving’, made it clear that, “the genius of the DMCA is that it lets technology startups comply with the law without hiring a platoon of copyright lawyer.”
In this wise, an aggrieved right owner who feels strongly that his right has been infringed upon will send a takedown notice to that ISP. In the notice, the specific violation and the Internet link of the infringing material must be included. Once proper notice has been received by the ISP, the allegedly infringing material must be taken down and the customer who put it online will be informed of the development.
The affected person can immediately put in a “counter notification”, if he had acted in good faith that he has a legal right to the material; he could have got a licence to use it or he could invoke fair use doctrine. Once there is a counter notification, the allegedly infringing content is put back online by the ISP unless otherwise directed by a court of competent jurisdiction. The Internet intermediaries that follow these procedures stricto strata are shielded from copyright liability for whatever content their customers uploaded on their sites. The DMCA does not enjoin them to take any step to verify the truth in the claims before deleting the material. It is noteworthy that taking down material off the site by the ISP in line with the DMCA does not constitute any act of guilt. It is just a procedure and nothing more.
In line with the above, the musical video for the song ‘one’, put together by Marvin First Lady popularly known musically as Tiwa Savage on her YouTube account was pulled down by the Social Media platform, YouTube, in November 2018, based on a copyright claim orchestrated by a third party, Danny Young, a Nigeria-based musician.
The news spread like wildfire for weeks. The reason(s) for the spread of news is not far to fetch: she is an artist of international repute, besides being an award-winning singer/songwriter, and lastly, which is the crux of this write up, she was portrayed or painted as guilty as charged in the public domain.
Going by what we have noted so far as regards the DMCA safe harbour “notice and takedown”, the ONE VIDEO by Tiwa Savage was pulled down to fulfil the letters of the law. As of the time of writing this piece, the video had been restored. It then, means that Tiwa Savage might have put up a counter notification in line with the provisions of the law. She is not the first person to have had this experience. Popular blogger, Linda Ikeji, had a similar experience some years back.
There are a thousand and one persons that have experienced this, and are still experiencing it. I am not in the position now to authenticate the copyright infringement claim against Tiwa Savage since the matter is already before a court of competent jurisdiction in Lagos, Nigeria. Right or wrong, it is strictly the decision for the court to rule on this.
Like every man-made institution, the DMCA has some imperfections. There are cases, particularly from the political class that it was evidently clear that disgruntled politicians use it to remove content that is otherwise clearly a fair use. Ahsley Madison used it to remove the posting of its data online. The removal of several videos from the YouTube channel of the 2008 John McCain US Presidential Election Campaign is another clear case of recorded abuse.
And that is why the court (Ninth Circuit) in the case of Lenz against Universal Music Group ruled that copyright owners must consider the fair use doctrine before sending a takedown notice under the DMCA to avoid this abuse.
So far, so good the system in question is a compromise. It is not a perfect system, but somehow it is aiding the growth of the Internet, and this has carried the Internet to the present level.
ROCKSON AKPOTIRI IGELIGE, AN ENTERTAINMENT LAW LAWYER WRITES FROM OLEH,DELTA STATE.