Copyright piracy is a menace, eating deep into the movie industry and threatening to grind it to a halt. As the populace has gone online, the pirates now ply their trade on Youtube, the online video streaming service.

Mobile devices are now an established means of enjoying online content. This comes on the heels of the mobile phone revolution currently taking place across Africa. As a consequence, media companies are betting heavily on mobile entertainment.

Today there is a lot more respect for Nollywood content. We now have better stories, better actors, production values, direction and cinema releases. People are intrigued by them and want to watch them.

Case in Point…. Yinka

Yinka is a movie producer, and single mother of 3 children. She makes a good living from producing and licensing movies. She also distributes content for in-flight entertainment and to TV stations in a number of French-speaking African countries. Due to the quality of her movies, Yinka often spends millions of Naira in producing a movie.

One day, whilst browsing movie content on Youtube, Yinka noticed one of her movies. Worse, it had been published for free on the platform and had been viewed by more than 1.7m people.

Yinka is aghast. She does not know what to do and she needs advice urgently.

How does Copyright Work and why is it important

Copyright is a set of rights commonly called ‘intellectual property’. It allows writers, visual artists, filmmakers, musicians and other types of creators to control the use of their work and get paid for it.

This intellectual property grants the owner the exclusive right to copy, issue, rent, perform, show, communicate and adapt their work.

The ultimate goal of copyright is the creation and spread of knowledge. Indeed one of the main purposes of copyright regulation is to strike a balance between production and dissemination of knowledge.

Copyright protection is provided for the expression of ideas and not the ideas themselves. Although you can reference other people to create a work, you must express those ideas in your own way. This means that it is important that the work you create is your “own intellectual creation”.

How does copyright regulate media?

Although Nigeria has laws against piracy, it remains a thriving business. This is due to poor implementation of existing laws, a near-lack of prosecution of offenders, and corruption in governance agencies.

The DMCA limits the liability of online service providers such as YouTube, for copyright infringement. The service provider has no liability for money damages owing to a third-party’s infringements. However, they must do certain things.

They must have a registered agent to receive copyright complaints. They must promptly remove content after receiving a complaint and create a way to deal with “repeat” infringers.

While Nigerian courts are yet to pronounce on the secondary liability of internet service providers (ISPs), case laws from other jurisdictions appear to suggest some form of notice based standard.

Several jurisdictions in seeking to protect against copyright infringement on the internet have created a process whereby a complaint informs an internet intermediary (including ISPs) that it is hosting/transmitting illegal content (the “notice”). The rights owner typically requests that the content in question be removed (the “takedown”).

Typically, once the internet intermediary receives such notification, it is obligated to take down or block access to this content and the “red-flag test” of this standard is presumed to have been satisfied.

As stated above, the online intermediary cannot be held liable in the following situations:

  1. Where it is merely acting as a “passive conduit” for the information,
  2. It is not the producer of the information, and
  3. The platform has responded expeditiously to remove or disable
    access to infringing material upon notice from the copyright holder

How has the internet transformed Copyrights?

With an average production of 50 movies per week and about US$590 million revenue annually, Nigeria’s film market is booming. Dubbed Nollywood, it has become a leading producer of films. It ranks second to India’s Bollywood.

 iROKOtv was the first company to put Nollywood content online legally. Initially starting from Youtube, they moved to their own platform in 2011. iROKOtv has inspired many people to start creating and monetizing their own content through YouTube.

Online piracy has been a constant battle for producers. There are always those who try to take it and put it onto other platforms for free. This supply is amply matched by the number of individuals who seek to enjoy movies for free. 

In Viacom International, Inc. v. YouTube, Inc, Viacom alleged that YouTube had engaged in “brazen” and “massive” copyright infringement. This was done by allowing users to upload and view hundreds of thousands of videos owned by Viacom without permission. Shortly after the Viacom lawsuit, several sports leagues, music publishers and other copyright owners sued YouTube all based on the same theory.

What is YouTube’s policy on rights infringement?

YouTube, the largest video-sharing website in the world, is replete with videos infringing on the rights of copyright holders.

According to Youtube, creators can only to upload original videos. That is, videos they have created themselves or videos that they have been given permission to upload. 

They may not upload videos that they have not made themselves. Also, they cannot use any content in their videos that is copyrighted. This includes music tracks, excerpts from copyright programs, or videos made by other users. They can only do so after first obtaining permission from the right owner to use the work.

To manage copyrights for large content creators, YouTube has a “Content ID”. This is a digital footprint tool that compares videos being uploaded on YouTube to a catalogue of copyrighted material.

Content ID is YouTube’s takedown vehicle to address claims of copyright infringement made by rights holders pursuant to the DMCA. Content ID allows the copyright owner to identify infringing works and to determine what happens to the infringing work.

 The Content ID system not only allows for YouTube to essentially automate the claim assertion and take-down process, but further affords rights holders the ability to monetize the infringing videos in lieu of removing them.

Getting DMCA complaints filed against you means accumulating strikes. If an account accumulates three strikes at once, YouTube will terminate the account and remove all of the videos.

People who make their living through their videos, and have worked hard to build an audience there, will suddenly find their lives ruined. Unsurprisingly, videomakers will go to a lot of effort to avoid getting strikes.

How Effective are Youtube’s safeguards?

A 2020 lawsuit alleges that YouTube’s Content ID system unfairly benefits the biggest of distributors and rights holders. They also allege that YouTube’s alternative system fails to meet the standards for the DMCA safe harbor to apply.

Maria Schneider claims that YouTube does not afford them the same opportunity to remove infringing work as larger content creators. They also claim that deleted pirated works are often reuploaded and posted by users without repercussions.

To take advantage of the Content ID system, YouTube must first grant the rights holder access to Content ID. The Schneider lawsuit alleges that those with less clout are relegated to another platform. This more onerous and less effective non-Content ID service allows infringement.

The class further argues that Content ID should be available to all rights holders. This is because the current alternative system is insufficient and fails to meet the requirements for YouTube to claim safe harbor as a service provider under the DMCA.

The class therefore alleges that YouTube is not entitled to such safe harbor and is liable for copyright infringement.  

Whether the alternative system runs afoul of the safe requirements remains to be seen. However, the repercussions from the Schneider lawsuit have the potential to be immense. Attorneys representing clients within the creative fields should pay close attention to how YouTube handles this action. This action may impact the ever-changing landscape of rights enforcement and protection in the modern digital world.

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