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.
Read more beyond-the-takedown-notice-on-tiwa-savages-youtube-one-video-by-rockson-akpotiri-igelige/