PROTECTION OF LITERARY WORKS IN THE DIGITAL ECOSYSTEM

“No man but a blockhead would write, except for money.”

~ Samuel Johnson contained in James Boswell’s Life of Samuel Johnson originally published in 1791 but abridged and edited by Charles Grosvenor Osgood in 1917.

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ABSTRACT

The world wide web and internet revolution has made communication and the dissemination of information on a scale hitherto thought impossible. It has also made information available and accessible to a global audience on a scale that could only be imagined before its advent. With the possibility engendered by technology comes concerns among authors and owners of copyright over the facility with which this revolution has made infringements of copyrighted works not only possible, but also difficult to occlude. Creatives’ frustration is heightened by the seeming inadequacy of traditional copyright regimes to guarantee watertight protection of works in the digital ecosystem.?In view of this, therefore, it becomes imperative for creatives to ensure their works receive maximum protection not only under traditional copyright regimes but also under technology-enabled protective mechanisms. Hopefully, some countries have amended their copyright legislations to bring same into conformity with the realities of the digital age. Other nations are in the process of the amendments of their copyright statutes. It is expected that these legislations and technology, through hybridization, will stem the incidence of copyright infringements by online pirates.

I.???????????????????INTRODUCTION

On the 27th of August, 2014, a day after my birthday that year, I made a thank-you post on my Facebook wall in appreciation to all my friends and family who felicitated me on my birthday. I did not think much of the post after that day. I was scrolling through my Facebook timeline a few months after I made that post when I stumbled on the same thank-you post. A friend, apparently, had copied and saved the work and had used same to express gratitude to his friends who sent birthday goodwill wishes to him on his birthday. In the United States, the case of Associated Press v. Fairley was resolved privately. The Fairley’s case related to what has come to be known as the transformative use of photographs. In Nigeria, Chief Mike Ozekhome SAN published a book titled Personal Property Law in Nigeria. It is unclear whether he permitted the electronic publication of the book in the commons[1], but the University of Pretoria has made the e-copy of the book available for free download on its website. The following rider appears on the website of the University: “PULP is an open-access publisher based at the Centre for Human Rights, University of Pretoria”. In Nigeria, just as in other climes, educational institutions have established electronic libraries and online research laboratories to facilitate research by the teachers and the students alike. The extent to which these digital and online libraries are utilized blurs the tenuous line between fair use and infringement.

Copyright infringement in the digital age goes beyond the material distortion of the work. Jurisdictional issues involving the enforcement of the rights have also occupied the attention of scholars and stakeholders globally. For instance, which law is applicable where a work published, for instance, in Nigeria and which is subject to Nigeria’s copyright regime, is downloaded in, say the United States of America, printed and distributed without the author’s consent? Is it the Nigeria’s Copyright Act or the American Copyright Act[2]? Beyond the angst at these substantive conundrum, there are threshold concerns over who, between the subscribers who use the internet to upload and disseminate infringing materials online and the internet service providers on whose networks the infringing materials are transmitted, should be held liable for the infringement of a copyrighted material.

The preoccupation of creatives as they cobble words together and build them into pleasurable literary edifices should be, and that is to be expected, getting premium reward for their intellectual exertions. This is possible only through a strong and functional copyright regime. Whether we view the relevance of protection of creative works from the proprietary, economic, natural rights, developmental, Lockean reward/inventive worldview or the utilitarian vistas, there is no disputation of the fact that the author[3] or, in situations where the author has assigned the ownership of the work to another person, the owner of the created work would love to exercise all forms of control over the work. This is the essence of according legal protection to creative works; and that is the purview of intellectual property law. With respect to the category of literary works, the branch of intellectual property law which protects literary work is copyright.

II.????????????????DEFINITION, HISTORY, NATURE AND CRITERIA FOR COPYRIGHT PROTECTION

Succinctly put, literary works cover that body of written works. According to Wikipedia[4], literature “broadly is any collection of?written?work, but it is also used more narrowly for writings specifically considered to be an?art?form, especially?prose?fiction,?drama, and?poetry.” According to the online encyclopedia, “Literature, as an art form, can also include works in various non-fiction genres, such as?biography,?diaries,?memoir,?letters, and the?essay. Within its broad definition, literature includes non-fictional books, articles or other printed information on a particular subject.”

This definition is consistent with the statutory definition of literary works as provided for in section 51 of the Nigeria’s Copyright Act[5] which defines literary works to include “irrespective of literary quality, any of the following works or works similar thereto- (a) novels, stories and poetical works; (b) plays, stage directions, film scenarios and broadcasting scripts; (c) choreographic works; (d) computer programmes; (e) text-books, treatises, histories, biographies, essays and articles; (f) encyclopaedias, dictionaries, directories and anthologies; (g) letters, reports and memoranda; (h) lectures, addresses and sermons; (i) law reports, excluding decisions of courts; (j) written tables or compilations.”

These definitions have developed to include the body of transcribed oral literature. That is why, for instance, the Copyright Act recognizes the expressions of folklore as protectable creations under the Copyright Act, with additional provisions for both civil and criminal sanctions where they are infringed[6]. Generally, the influence of literature, as a reflection of life and its quotidian activities, has been acknowledged to transcend beyond provision of mere entertainment and sensual pleasure to the assumption of epistemic, social, psychological, spiritual, or political roles.

To protect this body of works, the concept of copyright evolved. The right to protect one’s creative work existed centuries before the earliest recorded codification of the law of copyright. For instance, in the 6th century in Ireland, a dispute arose between two Catholic monks Finnian and Columcille. Finnian had given his Bible in illustrated form to Columcille. The latter copied the former’s Bible. Finnian got to know and a clash ensued. This disceptation came before King Diarmuid. Finnian accused Columcille of stealing his illuminations of the Bible by making a copy of his illuminations of the Bible without his permission. Columcille argued in his defence that he did no wrong as the copy he made did not detract from the original copy. The King, in giving his Judgment which was in Finnian’s favour, made this famous declaration: “to every cow her calf; and to every book its copy.” This resolution was the foundation stones upon which the principles guiding copyright were laid[7].

In pre-colonial Nigeria, and even today, performers of folksongs, folklore, folk poetry, instrumental folksongs, folk riddles, folk dances and folk plays usually prefaced their performances with obeisance to their predecessors in those crafts. By paying tributes to their predecessors in the arts, the performers acknowledged that the inspiration for their performances was founded on the large body of works their predecessors had created and transmitted to them through generations of oral traditions, improvisations, variations and adaptations to the socio-cultural realities of each generation. This is particularly so when one considers that folklore is group-oriented and tradition-based creations which reflect the cultural peculiarities of any particular group of people[8]. The belief is that the failure or refusal of the performers to acknowledge their ancestors in the arts would lead, at best, to a poor performance or, at worst, to a blackout of inspiration and creativity. This culture of paying obeisance to the ancestors in the arts persists till date.

Following the industrial revolution of the middle ages and the invention of the printing press, the Stationers Company was established in 1403 with the ostensible core mandate of bearing the risk of printing and publishing the works of authors but with the actual task of censoring the publication of materials the Crown considered heretical and politically unorthodox. The Stationers Company was eventually granted a Royal Charter in 1556, thereby vesting it with the monopoly to print and publish all literary works[9]. Between 1556 and 1709, a number of legislations were enacted and enforced with regards to the licensing of books, prohibition of printing and importation of books over which someone already had ownership. This legislative process culminated, eventually, in the enactment of the first copyright law, that is, the Copyright Act of 1710 popularly known today in the world of intellectual property as the Statute of Anne[10]. This Act underwent several amendments between 1710 to 1900 when it was incorporated in the Nigerian legal system as part of the received English law in existence as at 1st January, 1900. Of immediate concern, however, was the Copyright Act 1911 which specifically made provisions for its extension to the colonies and the protectorates under sections 25(1) and 28 respectively. As Leaffer eloquently observes, copyright legislations are “founded on a basic structure and a simply stated principle” which is simply to the effect that “copyright subsists in all original works of authorship fixed in a tangible medium of expression[11].”

Under the Nigerian copyright dispensation, as under other copyright regimes, the scope of its protection today extends beyond literary works into the realms of musical works, artistic works, cinematograph films, sound recordings, and broadcasts[12]. Though section 51 of the Act did not avail us with a satisfactory definition of copyright, sections 6, 7, 8 and 9 however provides the general nature of copyright with respect to literary, musical, artistic and cinematograph films, works of architecture, sound recordings, broadcasts and broadcasting of works incorporated in cinematograph films. Because of the theme of this conference, and the subject of this presentation, I shall focus on section 6(1)(a), which deals with the nature of copyright in literary works. The said section 6(1)(a) provides that:

(1)???Subject to the exceptions specified in the Second Schedule to this Act, copyright in a work shall be the exclusive right to control the doing in Nigeria of any of the following acts, that is –

(a)??in the case of a literary or musical work, to do and authorise the doing of any of the following acts –

(i)????????????????reproduce the work in any material form;

(ii)?????????????publish the work;

(iii)???????????perform the work in public;

(iv)????????????produce, reproduce, perform or publish any translation of the work;

(v)??????????????make any cinematograph film or a record in respect of the work;

(vi)????????????distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement;

(vii)??????????broadcast or communicate the work to the public by a loudspeaker or any other similar device;

(viii)????????make any adaptation of the work;

(ix)????????????do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (i) to (vii) of this paragraph.

Other definitions of copyright proffered by learned authors follow the pattern established by the statutes[13]. Halsbury’s Laws of England describes copyright within the context of the Copyright, Designs and Patents Act 1988 of the United Kingdom as the exclusive right to do, and to authorise others to do, in the United Kingdom, certain acts in relation to literary, dramatic and musical works, artistic works, sound recordings, films, broadcasts and published editions of works. It is a negative right since its essence is to protect the maker of a work from the appropriation of his labours by another person without his prior consent[14]. Black’s Law Dictionary[15] defines copyright as “The right to copy; specifically, a property right in an original work of authorship (including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural, and architectural works; motion pictures and other audiovisual works; and sound recordings) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.”

According to the World Intellectual Property Organisation, copyright is

“Generally considered to be the exclusive right granted by law to the author of a work to disclose it as his own creation, to reproduce it and to distribute or communicate it to the public in any manner or by any means, and also to authorize others to use the work in specified ways. Most copyright laws distinguish between economic and moral rights, which together constitute copyright. There are usually certain limitations made by the law as to the kind of works eligible for protection and as to the exercise of the rights of authors comprised in the copyright. In accordance with international usage, the traditional term "copyright" is sometimes replaced in modern English by the more adequate expression “author’s rights.””[16]

Generally, before a work can qualify for protection under any copyright legislation, it must fulfil certain conditions. These conditions are (i) originality[17], (ii) fixation in a material form[18], (iii) not intended as a model or pattern for multiple production[19], and, (iv) connection[20]. A work qualifies for protection under the Copyright Act if it is original. Originality for the purpose of copyright protection does not have the same meaning as the lexical denotative meaning of the word. Thus, while the latter means new, novel, firsthand, inventive, creative, having not existed before, not copied or a derivative, original for the purpose of copyright enjoys a rather liberal construction. Though the Act does not define the term ‘original’, it, however, provides an insight into this conceptual dilemma when it states that such work shall be eligible for copyright if sufficient effort has been expended on making the work to give it an original character. This, definitional catch-22 emphasizes the notion popular among intellectual property enthusiasts that copyright does not protect originality of ideas, but, rather, the originality of the expression of those ideas[21].

Another criterion for protection through the instrumentality of copyright is that the work must be fixed in a material medium of communication. In other words, the work sought to be protected must be fixed, or expressed in a physical, permanent form. One of the purposes fixation serves is that it establishes, for all purposes, the particular point, in the space of interminable and indeterminate time, a work can be taken to have come into existence. Furthermore, fixation vests a work with evidentiary value. Again, since copyright protects expression of idea and not the idea itself, fixation serves the purpose of objectification of the idea, sealing its transmutation from the realm of cognitive conception to the precincts of tangible reality. In Abernethy v. Hutchinson[22], part of the reasons the Court refused to grant an injunction to prevent the publication by unauthorized persons of oral lectures which were delivered by the Plaintiff was because the Plaintiff could not produce the notes from which he prepared and delivered the lectures. This case can be compared and distinguished from the case of Nicols v. Pitman[23] where the Court granted the injunction sought by the Plaintiff because, though he delivered the lecture from memory, he had already written the lecture and the manuscript of the lecture was in existence prior to its delivery.

A work that is intended as a model or pattern for multiple production is not protectable under copyright; its sphere of protection is found under the Patents and Designs Act. Though there is no definition as to what qualifies as industrial multiplication under the Copyright Act, it has been contended that where it is shown or can be shown that the design or creation is one which can be reproduced upon articles en masse, then it cannot be protected under the Copyright Act by virtue of section 1(3)[24].

A work may be original, fixed in a material medium of communication and not intended as a model or pattern for multiple production and, yet, ineligible for protection if it fails the test stipulated in sections 2, 3, 4 and 5 of the Act. The condition stipulated in those sections has been described by a learned author as eligibility for protection by virtue of connection[25]. Specifically, protection is vested in a work under these sections by means of status or personal connection, publication connection, official connection or treaty connection.

Section 2 provides that copyright shall be conferred by this section on every work eligible for copyright of which the author or, in the case of a work of joint authorship, any of the authors is at the time when the work is made, a qualified person, that is to say, an individual who is a citizen of, or is domiciled in Nigeria; or a body corporate incorporated by or under the laws of Nigeria. Section 3 stipulates that copyright shall be conferred by this section on every work, other than a broadcast, which is eligible for copyright and which being a literary, musical or artistic work or a cinematograph film, is first published in Nigeria; or being a sound recording, is made in Nigeria. Section 4 states that copyright shall be conferred by this section on every work which is eligible for copyright and is made by or under the direction or control of the Government, a State authority or a prescribed international body. Lastly, section 5 specifies that copyright shall be conferred by this section on every work if on the date of its first publication at least one of the authors is a citizen of or domiciled in; or a body corporate established by or under the laws of a country that is a party to an obligation in a treaty or other international agreement to which Nigeria is a party; and if the work is first published in a country which is a party to an obligation in a treaty or other international agreement to which Nigeria is party; by the United Nations or any of its specialized agencies; or by the Organisation of African Unity; or by the Economic Community of West African States.

Under the Nigerian Copyright Act, the duration of copyright for literary, musical and ?artistic works is for life of the author and seventy years from the end of the year the author died[26]. Where the work is published anonymously or pseudonymously, the duration is seventy years from the end of the year the work was published[27]. For cinematograph films, photographs, broadcasts and sound recordings, the duration is fifty years from the end of the year the work was first published[28].

III.?????????????THE DIGITAL ECOSYSTEM AND THE DISSEMINATION OF INFORMATION: EVOLUTION, REVOLUTION AND CHALLENGES

Ever since the English computer scientist, Tim Berners-Lee, invented the world wide web in 1989 while working at the European Organisation for Nuclear Research (CERN) and followed that up with the development of the foundations for the hypertext transfer protocol (HTTP)[29], the hypertext markup language (HTML)[30], the worldwide web browser, a server and the first website[31], there has been an unprecedented explosion in the rate of dissemination of information. Since that time, there has been feverish improvements on the original model, with the consequence that the world wide web has come to be designated as the information superhighway and the age that follows the invention known severally as the jet age and the information age.

A distinction must be drawn between the ‘world wide web’ and the ‘internet’. The world wide web is a global collection of documents and other?resources, linked by hyperlinks and?uniform resource identifiers[32]. The internet, on the other hand, is a global system of?computer networks?interconnected through telecommunications and?optical networking[33]. Simply put, while the world wide web can be described analogously as an electronic library, or, figuratively as a large cache of information, the internet can be styled correspondingly as the digital key that unlocks this library or the open sesame that unravels the postern of the cache[34]. There are entities that provide the needed connections to the internet which enable the transmission and dissemination of information uploaded online. These entities are known as the internet service providers (ISPs).

The world wide web and internet revolution guarantees the availability of an avalanche of literature to the reading public at the click of a button. A large body of literature resignedly consigned to antiquated oblivion has found its way to the consciousness of an appreciative audience through this digital revolution[35]. This is possible because of several websites such as Project Gutenberg[36], Global Grey[37], Google Scholar[38], Academia[39] and PDF Drive[40]. These and other websites provide a rich source of excellent research and scholarly materials. Websites such as Springer Books, Google Books and Amazon, on the other hand, are known as electronic commerce platforms and they render electronic mercantile services. This latter class of websites cannot be said to constitute an existential threat to the authorial and commercial rights of authors or owners of literary works. This, however, is not a concession that they do not constitute potential threats to the rights of authors and owners of copyrights.

While Project Gutenberg and Global Grey may not pose such a threat to the copyright of the authors of the books published on the site, seeing that the books published on the websites are books that have fallen into the public domain[41] as a result of the lapse of the duration of the copyrights[42], same cannot be said of PDF Drive which publishes books whose copyrights still subsists and makes them downloadable without a fee. Springer Books, Google Books and Amazon, on the other hand, are merely electronic commerce (that is, E-Commerce) platforms which make both the electronic versions of the book as well as their hard copies available for interested purchasers. Some of these sites, like Springer Books and Google Books, also render electronic publishing and marketing services to creatives who may not have the wherewithal to satisfy the requirements of publishing with established publishing houses or, for that matter, to self-publish and market their works. To this extent, therefore, these sites are of immense benefits to writers who wish to access a global platform and audience for publishing and marketing their works. All that is required, especially, in the aspect of marketing the works, is a strong search engine optimization (SEO) configuration. Going down this route, however, necessarily places additional burden on the authors to be extra-vigilant in ensuring their works are not distributed online by these electronic publishers without the prior consent of the authors.

The extent to which these rich digital repositories can be used vis-à-vis the rights of authors over their works remains the subject of intense debate. While copyright stakeholders are worried over the increasing, obviously intractable problem of digital infringement of protected works, scholars are worried that a protectionist approach to creative works will starve the academic environment of prodigious resources which conduce to a robust and fecund research. There is also the concern that excessive protection of literary works shrinks the fair use space and, consequently, stifles the creation of further creative works since accessible resources from which creatives can draw are limited. To this end, therefore, arguments have continued to be proffered on the desirability of a technology-driven copyright protection of literary works. On one side of this polemic divide are scholars who believe that untrammeled deployment of digital technology in the protection of literary works abuses the fair use exceptions that allow works, which ordinarily are protected by copyright, to be used within a limited context, thereby inflicting a divergence on the right to learn which is the defining attribute of the information age[43]. On the other side of the intellectual divide are the Lockean disciples who, though they acknowledge the right of the public to learn, however advocate that the imposition of a stringent protective regime on such protected works is necessary in order to ensure the author of a work, or its owner thereof as the case may be, harvests maximum fruits from his intellectual labour and creativity[44]. On this debate, definite closure appears to be elusive.

With these enormous advantages in information affordability and dissemination, global platform accessibility, convergency and interactivity of creatives and users and boundless opportunities for publishing and promotion of published works come increased concerns about privacy and security breaches[45]. Privacy and security concerns in the information age are simultaneously multidimensional and paradoxical. The digital age has made people susceptible to a breach of their privacy through hacking. Hackers breach people’s privacy and harvest their data through, inter alia, an unethical and illegal process called phishing[46]. To this end, governments have continued to emphasise the need for data protection and to make laws that strengthen the privacy of the data of the citizens. Paradoxically, governments all over the world are anxious over the rate at which criminals, terrorists, and other less than lawful characters use the internet and digital communication technology to evade surveillance. To live up to the reputation of the all-seeing eye of the sinister Big Brother in George Orwell’s dystopian fiction, 1984, governments have been known to spend fortunes on the development of, or the purchase of, technologies that enable them monitor the communications and online activities of the citizens.

Of particular concern to writers, as far as the vast expanse of the internet is concerned, is the disquietude over equally facilitatory limitless prospects for capacious infringements of the copyrights of the authors of literary works. The common worry for copyright owners derives from the nature of the internet itself as a system of universal communication which provides its users with a global audience and, in the case of literary works, readership. As Madison disturbingly observes, “…Any work of information that can be created today can also be (and increasingly is) inexpensively converted, translated, or adapted to digital form” and, then, stored, reproduced and transmitted electronically at little or no cost “…to an audience of millions as to a single reader” through the internet[47]. Ironically, privacy rights, or the need to protect the data of users of the internet, is the nightmare of owners of copyright as they seek to control the unauthorized use and distribution of their works online. Because of the anonymity the internet vests in its users, it is difficult for owners of copyright to track and sue the infringers. Resorting to internet service providers to avail them of the required information is useless as the internet service providers cite privacy concerns and the need to protect the information of their subscribers to deprive the owners of copyright of the requisite information they need to sue the subscribers for infringing their rights[48].

The fluidity of information in the digital ecosystem, which conflicts with the staticity of information fixed in a definite medium of communication as required under traditional copyright regime can be compared to a large swathe of ungoverned space where terrorism and non-state actors thrive and the state’s effort at installing organized government has proven to be futile. In the instances given in the Introduction to this work, my friend on Facebook could not have had the opportunity of plagiarizing my vote of thanks and passing same off as his creation but for the platform afford him so to do by Facebook. Similarly, the Associated Press could not have known that Shepard Fairley had used an apparently obscure picture of Barack Obama taken by its photographer, Mannie Garcia, to create the Obama Hope artwork but for the global platform provided by the search engines of the internet, thereby expanding the frontiers of what is known as the transformative use of copyright and the unending debate on what constitutes transformative use of copyrighted material. Conversely, not much people could have known of the original Mannie Garcia photo of Obama but for the transformative use to which Shepard Fairley had put it. Pursuing this train of thought further, Ozekhome’s book on personal property law could not have been available on a free-access website and downloadable without a fee but for the internet. In a twist of crooked irony, not many lawyers could have heard of the book but for the marketing and free download links contained in law blogs which, themselves, are posted on almost all conceivable WhatsApp Groups for lawyers. Either way, the internet – and, that is, broadly speaking, the digital ecosystem – has evolved into a double-edged sword, rendering both beneficial and prejudicial services. In other words, the digital ecosystem is simultaneously a benevolent genie and a malevolent vampire.

This problem has led copyright experts to warn that the radical paradigm shift in the protection of creative works in the face of relentless onslaught of digitization poses a formidable threat to the efficacy – and, thus, continued relevance – of the extant traditional framework for copyright protection[49]. They have therefore advocated for the amendment of the extant traditional legal frameworks to bring same in conformity with the reality of the digital age. In recognition of this paradigm shift, the United States, for instance, in 1998, enacted the Digital Millennium Copyright Act. Australia, on the other hand, promulgated the Copyright Amendment (Digital Agenda) Act, 2000 (Cth). In Nigeria, the two Chambers of the National Assembly – the Senate and the House of Representatives – have passed the amendment to the extant Copyright Act. The Bill is awaiting presidential assent. The Bill is innovative in a number of respects. For instance, section 26 creates a specie of infringement known as ‘circumvention of technological protection measures’[50].?Sections 29 and 30 contain provisions that are similar to section 512 of the American legislation which places an obligation on the internet service providers to take down infringing materials hosted on their network.?In the United States of America and Australia for examples, owners of copyright have been known to sue internet service providers either as sole defendants, as alternative defendants or as co-defendants with the actual infringers pursuant to the provisions of these new statutory provisions[51].

Yet, the challenges of authorial integrity and reward go beyond the instantiations I identified in the Introduction. Infringements of the copyrights of creatives of literary works in the digital age also take the form of the violation of the authors’ neighbouring rights. Neighbouring, or derivative, rights is that bundle of rights which automatically accrue to the author of a protected work. An instance of a neighbouring, or derivative right as it relates to writers is the right to perform a literary work. While it is easy for the author to control or monitor the adaptation of his literary work into a film or a stage performance by ensuring that the adaptor applies for his licence to use his work, and, further, secures the adaptor’s compliance with the terms of the licence granted for that performance or, in the absence of such licence, to sue for infringement of his copyright in respect of his work, it is difficult, if not impossible, for the author to preclude the unauthorized digitization of a performance of his literary work in the form of a skit or a short which is the vehicle of choice for digital production and dissemination via the internet.

There is also the problem of non-textual, digital productions of literary works and their distributions through virtual media. These non-textual, digital productions take different forms such as audiobooks, audiovisual books, and graphic illustrations. In other words, the precision and certitude which the author of a creative work, or the owner of the creative work possesses in exercising his right or procuring the enforcement of his right over the work using the instrumentation of the traditional copyright regime cannot be found in the province of a digital unlawful usage of the work. An acknowledgement of the limitations of the Copyright Act in this regard is, therefore, important in charting a safe course through the turbulent sea of the digital ecosystem.

IV.?????????????CONFRONTING THE REALITY OF DIGITIZATION: FINAL THOUGHTS. RECOMMENDATIONS, AND CONCLUSION

Confronting the reality of digitization and its profound impact on the extent of control available to authors, as I have pointed out, is the first step towards finding a solution to the Gorgon Medusa of digital interference in the protection of creative works under the traditional copyright regime. Acceptation of this reality, however, should not be construed to mean resignation to the pervasive effects of digitization on the rights of authors to control the infringement of all that bundle of rights copyright vests in them by virtue of their creations. Hopefully, and in keeping with the reality of the times, the Copyright (Amendment) Bill 2021 which has been passed by the two Houses of Nigeria’s National Assembly and which is awaiting presidential assent is a step in the right direction in this regard as it recognizes that infringement of copyrighted works is possible through online and digital technology[52]. But, before it becomes a law, what do we do?

First, common sense is key here. The author or owner has to decide whether he intends to rely solely on only the physical manifestations of his works as his revenue mainstay and to depend only on the protection afforded him under the extant copyright regime. The implication of this option is that while the author or owner will invoke the ultimate potency of the law of copyright on infringers of his authorial rights or copyright, he may decide to pretermit the unpermitted digitization of his works and the subsequent electronic dissemination of same. Ultimately, it is my considered view that a writer who seeks to ascribe the greatest protection possible should as much as possible refrain from putting out his work on the internet – especially, if the work has yet to be published. In Nigeria, once a work has been fixed in a material medium of communication, whether it is published or not, copyright automatically subsists and the author or the owner can enforce his rights over the work where an infringement occurs or is reasonably suspected to have occurred. Though Nigeria practices the notification system[53], an author or owner can sue for infringement of his copyright even where he has not notified the Nigerian Copyright Commission of the existence of the work. The problem with putting out unpublished works on the internet is the evidentiary burden of having to prove authorship of the work in a long-drawn-out legal battle in Nigeria’s notoriously slow judicial system. And, considering the increasing unwillingness of Nigerian courts to grant interim and interlocutory injunctions, the facts and circumstances of the case notwithstanding, the infringer would have reaped undeserved financial and, in some cases, moral rewards from the infringing work before the author could have established, through the Courts, his authorship of the work.

Second, what is the motivation for writing? This takes us back to Dr Samuel Johnson’s quote at the head of this work. Generally, writers write for money. While it is true that a writer uses the instrumentality of the written words to publish his thoughts on topical issues, to provoke socio-cultural and political conversations, to inspire ideological consciousness, to contribute to and disseminate knowledge, to raise funds for charity, or, even, the desire to be known as the author of a published work, making money in the process should not negate the overriding epistemological, philosophical, ideological, altruistic, humanitarian and narcissistic considerations. A writer with any or all of these motivations for writing can state in his work that the work is intended for the public domain. Categorizing his work as a free-access project removes the work from the realm of copyright protection in the event of infringement, with the corollary that anyone and everyone can use and disseminate the work in whatsoever form they deem fit without any recourse to him save for respecting his moral rights as the author. Where the author of a work intends to retain, or expressly retains residual rights, such as his moral and, in some cases, neighbouring rights over the work, then the work cannot be described properly as a work in the public domain. In such circumstances, the user of the work is referred to as “under license” or “with permission”.

Third, the author can decide to limit the publication of an electronic copy of his work, thereby making only the physical copy of his book available. Of course, this is not foolproof, as some inveterate infringers can scan the entire contents of the book, convert same to PDF format and distribute same electronically. In this case, the conflict between authors and incorrigible infringers can be compared to the metaphorical battle between light and darkness, and between good and evil; it is unremitting.

Fourth, the author can employ the instrumentation of technology to restrict user of his works. Infringement of protected works through unauthorised digitization is possible because of technology; it is therefore apposite to employ technology in containing these infractions. To accomplish this coup de théatre, the author may publish electronic versions of his work and, simultaneously exert formidable control over the work. This is possible through a number of non-intellectual property protection mechanisms which are driven by technology. One of such methods is by blacklisting websites which are notorious for the production and dissemination of copyrighted works. When such websites are blacklisted, the internet service providers (ISPs) can be ordered to block or restrict access to those websites as a means of preventing further online copyright infringement. Infringing contents can be taken down under this approach[54].

Fifth, the author may adopt the hybrid protection system in protecting his works. The hybrid protection system incorporates traditional copyright regime and non-intellectual property mechanisms. This cross-breed protective system involves a liberal constructionist approach to section 1(2)(b) of the Copyright Act which stipulates that a literary, musical or artistic work is eligible for copyright if “the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.” The liberal constructionist approach will necessarily involve construing ‘any definite medium of expression now known or later to be developed’ to include the computer, the internet, the world wide web and all the accoutrements that make them function and/or aid transmission or dissemination of the information uploaded thereon.

The non-intellectual property component of this crossbreed model is founded in technology itself. In essence, it involves encrypting the digital or electronic version of a literary work so that it remains inaccessible. It can, however, be decrypted and accessed through a decryption key which can be purchased at a price that is equivalent to the cost of the physical copy of the work or at any price the author may decide.

Another option is to make the electronic version of the work only downloadable for a fee[55]. In addition to this, there is the incorporation of contractual terms and conditions which regulate the usage of the electronic versions of the work. One of such terms is the prohibition of the transfer to a third party of the electronic version already purchased. Though some eBooks are protected in such a way that they can open on only one device with a particular decryption code, this term is, nonetheless, necessary because other eBooks are not so protected and can easily be transferred and shared via peer-to-peer technology as well as through the infinite reaches of information communication technology. Through this crossbreed facility, the author enjoys the benefits of a simultaneous protection and enforcement of his rights over his work both under the intellectual property and non-intellectual property approaches.

In all cases, therefore, as I have pointed out, whether an author decides to protect only the physical version of his work under the traditional copyright regime while making the electronic versions of his work available under free-access or whether he proposes to protect both the material copy and the electronic copy of his work is a matter of choice which, in turn, is informed by a number of personal considerations. By so doing, the author straddles the imaginary fence which dichotomises the public’s right to learn and the author’s right to protect his work from unauthorised usage. It must be warned that an author who chooses to protect both the physical as well as the virtual versions of his work must be ready to accept the reality of the challenges of digitization; for as technology makes it possible for him to encrypt his work, the same technology also makes it possible for hackers to work interminably to crack the encryption code and throw the work into the commons.

I will conclude with this anecdote from Ginsburg[56]:

““In the beginning was the Reader.” And the Reader, in a Pirandello-esque flash of insight, went in search of an Author, for the Reader realized that without an Author, there could be no Readers. But when the Reader met an Author, the Author, anticipating Dr. Johnson, scowled, “No man but a blockhead ever wrote except for money.”

And the Reader calculated the worth of a free supply of blockhead-written works against the value of recognizing the Author's economic self-interest. She concluded that the author's interest is also her interest, that the “public interest” encompasses both that of authors and of readers.

So she looked upon copyright, and saw that it was good.”

The traditional copyright regime may be inadequate a protection in the face of the persistent infringement of copyright in the digital ecosystem, but it is far from being ineffectual. With a hybridization of both the extant copyright system and the non-intellectual property method, authors of literary works may yet have a respite from copyright pirates operating in the digital ecosystem.

ENDNOTES

* This article was presented originally as a paper at the Annual Conference of the International African Writers Association on the 06th of August, 2022 at Adam’s Pages, Machima Plaza, Mambolo Close, off Mambolo Street, Zone 2, Wuse, Abuja.

** Ogbu, Blessing Ekpere Esq. is a legal practitioner with a bias for Constitutional Law and Intellectual Property Law. He has written on these subjects. On Constitutional Law, he advocates for the enthronement of strong institutions and unmitigated protection of the civil liberties of the citizens through legal framework,. With respect to IP, he is a strong exponent for the protection of traditional knowledge and condemns its exploitation and commodification. He has called for an overhaul of the extant IP regimes and the establishment of a sui generis system in order to accommodate traditional knowledge. He can be reached on [email protected].

[1] Also known as the ‘Public Domain’.

[2] See, for instance, Xalabarde, Raquel, Copyright: Choice of Law and Jurisdiction in the Digital Age, Annual Survey of International and Comparative Law (2002, Volume 8 Issue 1) where he muses that “In legal circles, the Internet is proving to be quite a challenge: its global dimensions, which cut across territorial borders, are creating significant legal questions. Copyright law is no exception. It is undeniable that the Internet is a legal and jurisdictional "no-man's

land." Which domestic law will govern the multiple acts of exploitation and infringement of copyrighted works on the Internet? Which court will have jurisdiction to make decisions as to copyright infringements occurring on the Internet? Should we design new choice of law and jurisdiction rules to decide these issues? Or should we just wait and see how the existing rules, in the hands of courts and lawyers, make their way through the digital network?” It is not certain that questions of this nature will be easy to resolve. What is, however, certain is that copyright stakeholders will continue to drive the conversation until a functional solution is attained.??<https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1067&context=annlsurvey> accessed on 21/07/2022.

[3] ‘Author’, when used within the context of copyright law, refers to the creator of an original work, whether the work be literary, musical, artistic, cinematographic, sound recordings or broadcasts.

[4] Wikipedia, Literature, <https://en.wikipedia.org/wiki/Literature> accessed on 22/07/2022.

[5] CAP C28 Laws of the Federation of Nigeria 2004.

[6] See sections 31, 32 and 33 of the Nigeria’s Copyright Act.

[7] Ola, Kunle, ‘Evolution and Future Trends of Copyright in Nigeria’, <https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwj0pP-f3IPdAhXKI8AKHQMPAtMQFjAAegQIBhAC&url=https%3A%2F%2Fojs.law.cornell.edu%2Findex.php%2Fjoal%2Farticle%2Fdownload%2F26%2F38&usg=AOvVaw2GTMLbY-mB38tD6p6Snv22> accessed on 23/08/18; see also Gurry, Francis, Re-Thinking the Role of Intellectual Property, (WIPO, 2013) <https://www.wipo.int/export/sites/www/about-wipo/en/dgo/speeches/pdf/dg_speech_melbourne_2013.pdf> accessed on 28 March, 2019 where the story was originated narrated.

[8] The Nigerian Copyright Act defines folklore as “a group-oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means including- (a) folklore, folk poetry, and folk riddles;?(b) folk songs and instrumental folk music;?(c) folk dances and folk plays; (d) productions of folk arts in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, handicrafts, costumes, and indigenous textiles.” See section 31(5).

[9] Asein, John, Nigerian Copyright: Law & Practice, (2nd edition, Books & Gavel Publishing, 2012), 21.

[10] It was so named because it was enacted by the British Parliament during the reign of Queen Anne.

[11] Leaffer, infra, at 49.

[12] Section 1(1) of the Nigeria’s Copyright Act.

[13] See, for instance, the following definitions: Garnett K, Davies G and Harbottle, G., Copinger & Skone James on Copyright (15th Ed. London: Sweet & Maxwell, 2005) 1: “Copyright is one of the three main branches of intellectual property law…which gives the owner the exclusive right to authorise or prohibit certain uses of his work by others”; Marshall Leaffer Understanding Copyright Law (3rd Ed., New York: Matthew Bender 1999) 2: “The right to make copies”. Leaffer, however, recognises that advancements in technology and the actualities of contemporary opportunities for creativity and the possibility for exploitation of creative works make the expansion of the scope of copyright protection inevitable; Whale, in Whale, R. F., Copyright (Longman 1971) 1 provides a negative definition of copyright by describing what copyright is not; Cornish adopts this definition in Cornish, W. R. Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, (Sweet & Maxwell, 1996) 401 where he defines copyright as a negative right which seeks to stop or prevent the unauthorized use of a work; according to Shyllon in Shyllon, Folarin, Intellectual Property Law in Nigeria, (Verlag C.H. Beck, München, 2003) 4,?copyright covers artistic creations such as literary, musical and cinematographic works. Amplifying the WIPO’s description of the term, he specifies that most European languages other than English prefers the usage of the expression ‘author’s rights’ to ‘copyright’. For instance, the French word for copyright is ‘droit d’auteur’ though its direct translation to English means ‘author’s rights’. Copyright focuses on the protection of ideas which have been expressed, and not the ideas themselves See, generally, Oyewunmi, Adejoke O., Nigerian Law of Intellectual Property, (Lagos, University of Lagos Press and Bookshop Ltd, 2015) 21.

[14] Lord Mackay of Clashfern (ed), Halsbury’s Laws of England, Fifth Edition, Volume 23 (LexisNexis, 2013), 336.

[15] Black’s Law Dictionary 8th edition, (St Paul, Minn, Publishing Co, 2004) 1020.

[16] WIPO, WIPO Glossary of Terms of the Law of Copyright and Neighbouring Rights (WIPO, 1983) <ftp://ftp.wipo.int/pub/library/ebooks/wipopublications/wipo_pub_828efp.pdf> accessed on 28/3/2019

[17] Section 1(2)(a) of the Copyright Act.

[18] Section 1(2)(b) of the Copyright Act.

[19] Section 1(3) of the Copyright Act.

[20] Sections 2, 3, 4 and 5 of the Copyright Act.

[21] See Halsbury’s Laws of England, supra, at 382, where the learned authors affirm that “…for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of a literary work, with the expression of thought in print or writing, and, in the case of an artistic work, with that which is visually significant.?The originality which is required relates to the expression of the thought. It is not required that the expression should be in an original or novel form or that it should have any aesthetic merit, quality or value, but that the work should not be copied from another work; it should originate from the author.” In the case of Sawkins v. Hyperion Records Ltd (2005) EWCA Civ 565, (2005) 3 All ER 636, (2005) IP & T 923, the English and Welsh Court of Appeal held per Murmerry, LJ that “The policy of copyright protection and its limited scope explain why the threshold requirement of an ‘original’ work has been interpreted as not imposing objective standards of novelty, usefulness, inventiveness, aesthetic merit, quality or value. A work may be complete rubbish and utterly worthless, but copyright protection may be available for it, just as it is for the great masterpieces of imaginative literature, art and music. A work need only be ‘original’ in the limited sense that the author originated it by his efforts rather than slavishly copying it from the work produced by the efforts of another person.”

[22] (1825) 47 E.R. 1313 cited in Asein, 83.

[23] (1984) 26 Ch. D. 374.

[24] Asein, Op. Cit., 68, relying on Michael Fysh, Russell Clarke on Copyright in Industrial Designs, 5th ed. (London, Sweet & Maxwell, 1974) 17.

[25] Shyllon, Op. Cit., at 46 – 48.

[26] Section 2(2) and Paragraph 1 of the First Schedule to the Act.

[27] Section 2(3) of the Act.

[28] Paragraphs 2, 3 and 4 of the First Schedule to the Act.

[29] According to Wikipedia, the?Hypertext Transfer Protocol?(HTTP) is an?application layer?protocol in the?Internet protocol suite?model for distributed, collaborative,?hypermedia?information systems.?HTTP is the foundation of data communication for the?World Wide Web, where?hypertext?documents include?hyperlinks?to other resources that the user can easily access, for example by a?mouse?click or by tapping the screen in a web browser. It is a protocol for fetching resources such as documents. Source: Wikipedia, <https://en.wikipedia.org/wiki/Hypertext_Transfer_Protocol> accessed on 03/08/2022.?It is the foundation of any data exchange on the Web and it is a client-server protocol, which means requests are initiated by the recipient, usually the Web browser. A complete document is reconstructed from the different sub-documents fetched, for instance, text, layout description, images, videos, scripts, and more. Source: Mozilla, <https://developer.mozilla.org/en-US/docs/Web/HTTP/Overview> accessed on 03/08/2022.

[30] The?HyperText Markup Language?or?HTML?is the standard markup language for documents designed to be displayed in a?web browser. It can be assisted by technologies such as?Cascading Style Sheets?(CSS) and?scripting languages?such as?JavaScript. Cascading Style Sheets?(CSS) is a?style sheet language?used for describing the?presentation?of a document written in a?markup language?such as?HTML?or?XML?(including XML dialects such as SVG, MathML or XHTML). CSS is a cornerstone technology of the?World Wide Web, alongside HTML and?JavaScript. CSS is designed to enable the separation of presentation and content, including?layout,?colors, and?fonts.?This separation can improve content?accessibility; provide more flexibility and control in the specification of presentation characteristics; enable multiple?web pages?to share formatting by specifying the relevant CSS in a separate .css file, which reduces complexity and repetition in the structural content; and enable the .css file to be?cached?to improve the page load speed between the pages that share the file and its formatting. Web browsers?receive HTML documents from a?web server?or from local storage and?render?the documents into multimedia web pages. HTML describes the structure of a?web page?semantically?and originally included cues for the appearance of the document. Source: Wikipedia, <https://en.wikipedia.org/wiki/HTML> accessed on 03/08/2022.

[31] Wikipedia, World Wide Web, < https://en.wikipedia.org/wiki/World_Wide_Web> accessed on 22/07/2022.

[32] Uniform Resource Identifiers, or URIs, are unique sequences of characters that identify logical or physical resources used by web technologies. URIs may be used to identify anything, including real-world objects, such as people and places, concepts, or information resources such as web pages and books. Some URIs provide a means of locating and retrieving information resources on a network (either on the Internet or on another private network, such as a computer file system or an intranet. Source: Wikipedia, Uniform Resource Identifier, < https://en.wikipedia.org/wiki/Uniform_Resource_Identifier> accessed on 22/07/2022.

[33] Optic networking is a means of communication that uses signals encoded in light to transmit information in various types of?telecommunications networks. These include limited range?local-area networks (LAN)?or?wide-area networks (WAN), which cross metropolitan and regional areas as well as long-distance national, international and transoceanic networks. It is a form of?optical communication?that relies on?optical amplifiers,?lasers?or?LEDs?and?wave division multiplexing (WDM)?to transmit large quantities of data, generally across?fiber-optic cables. Because it is capable of achieving extremely high?bandwidth, it is an enabling technology for the?Internet?and?telecommunication networks?that transmit the vast majority of all human and machine-to-machine information. Source: Wikipedia, Optic Networking, < https://en.wikipedia.org/wiki/Optical_networking> accessed on 22/07/2022.

[34] This distinction can be accessed from the first-ever website created by Tim-Berners Lee, the World Wide Web Consortium?< https://www.w3.org/Help/#webinternet> already archived but retrieved on the 22/07/2022.

[35] Books that received critical reviews as a result of their themes and were nearly obscure when they were originally published as a direct consequence of the overbearance of the popular literature of the day suddenly find acceptation and received positive reviews when they were rediscovered following the publication of their electronic versions. One of such books was the Baron Trump trilogy written by the American lawyer and politician, Ingersoll Lockwood. Published as a three-part book, the trilogy is made up of three novels, videlicet, Travels and Adventures of Little Baron Trump and His Wonderful Dog Bulger published in 1889, Baron Trump's Marvellous Underground Journey published in 1893, and, 1900 or, The Last President 1896. The novels were rediscovered in 2017 when their electronic versions resurfaced on the internet in 2017 and became quite sensational because of the striking similarities between the protagonist in the series, Baron Trump, and the then President of the United States, Donald Trump.

[36] https://www.gutenberg.org.

[37] www.globalgreyebooks.com

[38] https://www.scholar.google.com

[39] https://www.academia.edu

[40] www.pdfdrive.com.

[41] The public domain has been defined as a body of creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. A work could be in the public domain as a result of several factors, the commonest being that the rights protected under any of the intellectual property regimes have expired. In other works, most works in the public domain are there because of old age. Another reason could be that no individual author could be credited with being the creator of the work. When such happens, the public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. Another reason is where the author of a work dedicates the work to the public. This is rare, since the essence of intellectual property is for the creator, or the author to enjoy the fruits of his intellectual labour This is consistent with the labour, or natural rights theory of intellectual property.?Source: Stim, Richard, Fair Use and Copyright, Stanford Libraries, < https://fairuse.stanford.edu/overview/public-domain/welcome/> accessed on 22/07/2022. According to Wikipedia, the public domain, concisely put, “consists of all the?creative work?to which no?exclusive?intellectual property rights apply. Those rights may have expired,?been forfeited, expressly waived, or may be inapplicable” see Wikipedia, Public Domain <https://en.wikipedia.org/wiki/Public_domain> accessed on 23/07/2022.

[42] The welcome page of Project Gutenberg website states inter alia that “You will find the world’s great literature here, with focus on older books for which U.S. copyright has expired. Thousands of volunteers digitised and diligently proofread the eBooks, for you to enjoy.”

[43] The fair use of works protected by copyright can be seen in the Second Schedule to Nigeria’s Copyright Act, paragraphs (a) – (s). See, for instance, the arguments of Madison in Madison, Michael J., (1998), infra at (n) 47.

[44] See, for instance, Taubman, A.S. “TRIPS Jurisprudence in the Balance: Between the Realist Defense of Policy Space and a Shared Utilitarian Ethic”, in Lenk, Hoppe and Andorno (eds.), Ethics and Law of IP: Current Problems in Politics, Science and Technology, (Burlington, USA: Ashgate Publishing Company, 2007), p. 1 where he argues that Article 8(1) of the Trade-Related Aspects of Intellectual Property (TRIPS) Agreement recognizes the fact that intellectual property rights are not inherent rights in the nature of the fundamental rights which are personal and inalienable, but rather are functional rights granted for advancing and fairly distributing general public welfare

[45] See, for instance, France Bélanger, France and Crossler, Robert E.,?Privacy In The Digital Age: A Review Of Information Privacy Research In Information Systems, (December, 2001, MIS Quarterly), <https://vtechworks.lib.vt.edu/bitstream/handle/10919/81984/BelangerPrivacy2011.pdf?sequence=1> accessed on 21/07/2022. In Nigeria, constitutional jurisprudence has expanded the frontiers of section 37 of the Constitution of the Federal Republic of Nigeria 1999 which guarantees the right to private and family life to include the right to protect the unsanctioned and unlawful harvest of one’s data via any electronic means. The Nigerian Data Protection Regulation, 2019 ('NDPR') is the main data protection regulation in Nigeria. For context, see the Preamble to the Regulation, as well as Articles 1.1, 2.1, 2.4 and 3.1 of the Regulation.

[46] The luring of an internet user to reveal personal details (like passwords and credit card information) on a fake web page or email form pretending to come from a legitimate company (like their bank)

[47] Madison, Michael J., Legal-Ware: Contract and Copyright in the Digital Age, 67 Fordham Law Review 1025 (1998) at 1036, <https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3527&context=flr>?It is also available at: <https://ir.lawnet.fordham.edu/flr/vol67/iss3/3> accessed on 21/07/2022.

[48] Middleton, Gaye L., Copyright Conundrum – Liability of ISPs for Online Copyright Infringement??<https://crpit.scem.westernsydney.edu.au/confpapers/CRPITV44Middleton.pdf > accessed on 21/07/2022.

[49] See, for instance, Leaffer, Marshall A., Protecting Authors' Rights in a Digital Age (1995) Maurer School of Law, Indiana University, Digital Repository, at pages 1 & 2, <https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1613&context=facpub> accessed on 21/07/2022. According to Leaffer, writing in 1995, “…traditional copyright law may largely be rendered obsolete by the digital revolution, which has challenged as never before the copyright owner's ability to control the unauthorized uses of the copyrighted work.” Echoing the same sentiments, Madison, Op. Cit. opines that “Conventions like the ones sketched above that may have historically attached to particular media (for example, books, magazines, or record albums) or types of works (for example, literary fiction, encyclopedias, or photographs) have had a settled, if somewhat narrow, regulatory influence. These conventions are in danger of losing their power. What are the conventional limits on what I may do with a book if, among other things, it is within my power to cheaply scan the entire text of the book onto a computer storage medium and thereafter reproduce perfect copies of the entirety or any part of it?”

[50] (1) “Subject to the provisions of Part II of this Act, no person shall knowingly circumvent a technological protection measure that effectively protects a work under this Act. (2) No person shall manufacture, import, sell, offer to the public, provide, or otherwise traffic in any technology, product, service, device, or part thereof, that– (a) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a work under this Act; or (b) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a work under this Act. (3) As used in this section– (a) “Circumvent a technological protection measure” means avoiding, bypassing, removing, deactivating, decrypting or otherwise impairing a technological measure. (b) a technological measure effectively protects a work under this Act if the measure, in the ordinary course of its operation, prevents or restrict acts in respect of the works, which are not authorized by the authors concerned or permitted by law.”

[51] See, for instance, the American cases of Recording Industry Association of America, Inc. v Verizon Internet Services, Inc. 351 F.3d 1229; Pacific Bell Internet Services v Recording Industry Association of America Inc., N.D.Cal. 3560 JL, filed 30 June 2003); and the Australian case of Telstra Corporation Limited v Australasian Performing Right Association Limited ("APRA") (1997) 38 IPR 294 at 302 ("Telstra Decision").

[52] For instance, section 6(1)(ix) which sanctions as an infringement the making of “the work available to the public by wire, wireless or online means in such a way that members of the public are able to access the work from a place and at a time individually chosen by them.”

[53] Under the notification system, known as the Nigerian Copyright eRegistration System (NCeRS), the author of a work is required to notify the Nigerian Copyright Commission (NCC) of the creation and existence of his work. Failure to notify the NCC does not divest the author of the right to sue for infringement of his copyright. In other words, the notification is not a statutory creation as registration is not a statutory precondition for the accrual of copyright in any work. The notification system is a policy issue put in place by the NCC as part of its statutory responsibility of maintaining an effective databank on authors and their works. See the website of the NCC: <https://www.eregistration.copyright.gov.ng>. This is in contradistinction to the recordation system practised in countries such as the United States of America. Under the recordation system of the United States, for example, an author is required as a matter of statutory precondition under the Copyright Act to file his created work with the relevant authority. An author who fails to file his work as required cannot enforce his right in court in the event of an infringement. This, however, does not preclude him from exercising proprietary rights over the work. It is the right to sue in the event of infringement that is occluded by virtue of non-recordation. Other documents which may be submitted for filing and indexing in the United States Copyright Office under the recordation system are transfers of copyright ownership, other documents pertaining to a copyright, and notices of termination. See 17 U.S.C. §§ 203, 204, 205, 304(c) and 304(d). See also <https://www.copyright.gov/recordation/>.

[54] Ugwu, Uchenna Felicia, Reconciling the Right to Learn with Copyright Protection in the Digital Age: Limitations of Contemporary Copyright Treaties, (2018, Law and Development Review)?at page 13. <https://p2irc.usask.ca/documents/students/LDR%202018%20Ugwu%20Copyright%20ELs%20in%20Digital%20Age.pdf > accessed on 21/07/2022. In fact, sections 29 and 30 of the proposed Copyright (Amendment) Bill 2021 contains a provision which empowers the author or the owner of a creative work to request the internet service provider on whose network an infringing material is hosted to take it down and the service provider, upon receiving the request, is required to take such infringing content, or the link to that infringing content, down. Section 29(1): “The owner of copyright in a work, in respect of which copyright has been infringed, may issue notice of such infringement to the relevant service provider requesting the service provider to take down or disable access to any infringing content or link to such content, hosted on its systems or networks.” See subsection (2) of the section on the steps the owner of a copyright is required to follow in exercising his right to request that an infringing content be removed. Section 30: “(1) A service provider, upon receiving notice of infringement under Section 29 shall promptly notify the subscriber responsible for the content for which the notice relates informing him of the content of the notice; (2) If within 48 hours of the receipt of the notice of the takedown the subscriber fails to provide any information justifying the continued keeping of the content complained about, the service provider shall take down or disable access to the infringing content or links to such content hosted on its systems or networks, and thereafter, notify the owner of copyright accordingly.” This is equivalent to section 512 of the United States Copyright Act.

[55] Some online law journals adopt this option. Some of the popular online law journals which make access to their electronic materials subject to the payment of a subscription fee are Nigerian Weekly Law Reports accessible at <www.nwlronline.com>, Taylor & Francis Journal accessible at <https://www.tandfonline.com>, and The Gravitas Review of Business & Property Law accessible on <https://gravitasreview.com.ng>.

[56] Ginsburg, Jane C., “The Exclusive Right to Their Writings”: Copyright and Control in the Digital Age, Maine Law Review, Volume 54 Number 2, June, 2002. <https://digitalcommons.mainelaw.maine.edu/cgi/viewcontent.cgi?article=1437&context=mlr> accessed on 21/07/2022.