The World Intellectual Property day (26th April) has come and gone. Nigeria been a prominent member of the World Intellectual Property Organization (WIPO) took part in this annual event which was themed “Innovation-Linking the World”. In the words of the Nigerian Attorney General of the Federation (AGF) “Innovation provides solutions to identified problems but also creates new problems. While it is true that the law may never be able to catch up with or pre-empt all the hazards of technology, experience has shown that the solution is in constant review of the law to meet emerging challenges.”
If the truth be told this statement coming from the AGF will form the background of today’s piece. Musical works as we all know is borne out of creativity, one of the main challenges facing creativity in this age of “Innovation” is the issue of (digital) piracy. This problem of piracy has become so rampant in developing nations like Nigeria (maybe because of its lucrative nature). It goes without saying that losses to the rights holders are enormous. To curb this menace, the intellectual property system devised two approaches that may be needed in international markets to protect the rights in musical works.
Technological Protection Measures (TPMs): According to Lessig (1999, p.49) code can, and increasingly will, displace law as the primary defence of intellectual property law in cyber space. The legal foundation for TPMs often referred to as digital rights management (DRM) can be traced to s.11 of the WIPO Copyright Treaty (WCT)and s. 18 of the WIPO Performances and Phonograms Treaty (WPPT), (both referred to as the WIPO internet treaty) which provides for what is now known as the “anti-circumvention provision”.
This provision has the effect of penalizing the circumvention of any effective technological measures put in place by rights holders (of musical works) to restrict the unlawful and unauthorized acts use in protecting musical content and to provide legal remedies against the commercial dealings which are capable of anti-circumvention. At its core, DRM technologies allow musical rights holders to define a set of rules attached to their work in digital format that control consumer access, use and manipulation of the musical work.
This technology is in response to challenges presented by the current state of our digital technologies where musical works can be reproduced identically and distributed across computer networks without compensation to the rights holders. DRM technologies has come under attack in recent times as having the effect of restricting “fair use”, granted under our copyright laws, since its primary objective is to prohibit the copy and access of musical works. According to Stefik (1999, p.96) “One of the concerns raised about [DRM] systems is that they might block consumers’ access to works they are entitled to use on a fair use basis. Because a consumer could not extract a portion of a digital work on a [DRM] system, he or she would not have the opportunity to create the work that would occasion the fair-use defence”
Interoperability has been another challenge facing the deployment of DRM technologies, as in the case of musical content from iTunes platform been restricted to play only on Apple’s iPod (complaint) devices. The inability of Apple’s DRM solution to interoperate across multiple platforms has presented consumer protection and competition/anti-trust challenges.
The consumers Ombudsman in Norway has ruled that the songs encoded with Apples’s FairPlay technology cannot be played on any other music device other than the iPod which is in contravention of Norway’s Laws. To remedy the problem of interoperability, the open source model has been suggested as this model will guarantee interoperability across a myriad of platforms.
Legal Enforcement Measures (LEMs): Another way of dealing with piracy in musical works is through legal remedies provided under copyright and trademark laws as pirated works constitute infringement under both laws.
An important legal tool for dealing with the infringement of IP is the “Anton Piller” order. This is a court order that provides the right to search premises and seize evidence without prior warning. This order is very useful in preventing the destruction of goods or articles in possession of the defendant and which the plaintiff claims infringes his copyright, trademark or patent. The order is named after the case of Anto Piller KG v Manufacturing Processess Limited [1976] Ch 55. To succeed on an Anton Piller application, the plaintiff/applicant must show (to the court) that the property is in the defendant’s possession, that the defendant is likely to destroy it (if he were put on notice of the application for the order) and that the damage occasioned by this infringement is very serious to the applicant.
The path to follow
Whichever path, rights holders may decide to follow, it is heart-warming to know that both measures of enforcing rights in musical works complement each other. The downside may be that in TPMs, fair-use and consumer protection issues may arise while in LEMs, swift processes for customs/border seizures of pirated musical works may suffice, while it may be more difficult to successfully prosecute those involved in criminal piracy, civil remedies may also not be sufficient as it is often a slow path and the amount of monetary compensation may not be enough.
Whatever the case may be, let’s keep celebrating and rewarding creativity. It is important that rights holders maximize the benefits from their works. In this vein, I will agree with the Nigerian pidgin English adage that says “No work, no pay”!
PS: Do you know about the tale of two dogs, I mean Lucky and Flo (two Labrador retrievers) trained by the Motion Picture Association of America (MPAA) in sniffing out pirated media. On their second test run in Malaysia, a bounty was placed on their head by the Malaysian piracy cartel. I guess it’s a dog eat dog world.
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