This is the digital age and there’s no escaping it. You either own a business website, run a blog as a hobby, have multiple social media accounts or in the very least, have apps downloaded on your mobile phone. Some of us fit into several if not all of these categories. One way or the other, we’re all either creators or consumers of digital content. Or both.
Since we’ve established that we can’t escape it, what are the legal implications of our digital engagement? In what ways are those involved in content creation and dissemination exposed to legal risk? How can these risks be mitigated? This article seeks to outline and address the key legal aspects and issues associated with the digital world.
1. Copyright Infringements on online platforms: These can occur in various forms. The most common forms of copyright infringements in the social media space have to do with posting of copyrighted content such as music, pictures and videos. Most social media sites such as Instagram and Facebook advise that to avoid posting copyrighted material, you post only content which you have created yourself.
These sites however acknowledge two situations where you may post copyrighted material. The first of these is to seek a consent or license from the original copyright holder/content owner to post the material. The second exception to posting copyrighted content is a legal principle which under American law is known as “Fair Use” while it is known as “Fair Dealing” under other jurisdictions including Nigerian Copyright Law.
Fair Use or Fair Dealing refers to the exceptions which allow for use of copyrighted material without the need to obtain prior permission or license.
Fair Use under American law is a little more open-ended than Fair Dealing. Fair Use considers the following four factors; The purpose and character of the use including whether such use is of a commercial nature or for non profit educational purposes, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole and finally the effect of the use upon the potential market for or value of the copyrighted work.
As can be seen from the language in the points above, fair use is very open-ended and subject to interpretation whereas fair dealing is more specific in nature. Under the Nigerian Copyright Law, fair dealing provides for use of copyrighted materials for purposes of research, private use, criticism, review or the reporting of current events subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship. Fair dealing under the Nigerian Copyright Law also allows for use of copyrighted material as long as the copyrighted material is recreated in the form of a parody or caricature. It is thus quite important to use the above as a litmus test before posting copyrighted content online so as to avoid legal liability.
2. Consequence of Copyright Infringement in digital space: Where Copyrighted material is infringed upon in online platforms, more often than not, a notice/warning is sent to the infringing party to take down the copyrighted material and to desist from posting same. Sometimes, this is sent by the copyright owner and other times by the online platform itself (where a complaint has been made by the copyright owner). In such a case, the infringer is not liable to pay any penalties for use. However, there are cases where the copyright owner may sue for costs or damages. This is usually in cases where the infringer has benefitted commercially from the use of the copyright material or where the use of the copyrighted content has negatively impacted the copyright owner in one way or the other. In such cases, the copyright infringer may be liable to pay costs or damages for the infringement as the case may be. It is thus very important to be cautious when making use of copyrighted material even under the Fair Dealing exceptions.
3. Plagiarism in online platforms: It is common to copy and paste in digital space, however copying and pasting and taking credit for the pasted work amounts to plagiarism. Plagiarism although wrong is not in itself a crime. Where plagiarism is committed regarding material that is not copyrighted, it is simply unethical. However, where the material which has been plagiarized is a copyrighted work such as a poem or article (literary works), the guilty party will be liable for copyright infringement.
When a person creates original literary work, such work is automatically protected by copyright – there is no requirement that the work be registered or even marked “copyright” or “©”, although this is often done in practice. Where such literary work has been copied without the permission of the copyright owner and such copying is “substantial”, the copyright is said to have been infringed. There is no clear definition as to what amounts to “substantial” and the Courts decide cases on a case by case basis. In some cases the reproduction of small amounts of a piece of work has been held by the Courts to be “substantial” and it is not necessary for the copying to be exact. So it is important to be careful when duplicating literary works online. To be on the safe side, it is much better to give credit to the original author than to pose as the owner of the literary work.
This is especially important on e-commerce sites where there is some form of exchange of services, products or money. The terms and conditions usually detail important clauses such as refund processes which may not necessarily be in the favour of the user. It is thus very important to go through the terms before agreeing to them and using the service.
Most websites however which are less exposed to legal risk usually have what is called a “Browsewrap Agreement”. Unlike a Clickwrap Agreement, a user does not need to take action to affirm his consent to be bound. Instead, the agreement typically states that the use of the website is deemed acceptance of the agreement. However, courts are more likely to enforce clickwrap agreements than browsewrap agreements. Browsewrap Agreements for them to be more enforceable should be placed somewhere on the homepage of the site, where it is quite visible and prominent.
5. Software End User License Agreements (EULA): This is an agreement between the software proprietor and the purchaser (or free downloader in most cases), establishing the purchaser’s rights to use the software.
The software proprietor as the licensor grants the user the license or right to use the software and lays out the terms and conditions governing such use. More often than not, such terms normally include provisions against duplicating or sharing the software but more importantly, such license agreements usually seek to protect the software proprietors from legal exposure by providing terms which hold harmless the software proprietors in cases where the download or use of the software were to result in damage to the user’s computer or data. Some EULAS go further to protect the software proprietor from third party damages which may occur from improper or illegal use of the software. For these reasons, it is crucial for software developers/proprietors to seek apt legal counsel before publishing their digital products for public use and in the same vein, it is important for end users of software to go through EULAs to know their rights of use, especially users of technical software such as accounting and medical software.
The digital world is fast paced and traditional laws are slowly evolving to catch up with digital trends. For stakeholders in the digital space, it is important to seek sound legal counsel to ensure that you and your business are well protected from legal exposure in the digital and real world.
Olusola George-Taylor is a Partner at Lagos-based law firm Alli-Balogun, Okeke and Taylor.