By Blessing Udo
Technology has in the last decade impacted significantly on Intellectual Property rights especially across the various social media platforms available today.
We are confronted with salient questions such as:
If A makes an unauthorised video of B and puts it up on Gofundme, and the said video attracts gratuitous donations to B, is A, being the maker of the video, entitled to the gratuitous donations?
Would such a video constitute commercial purpose in the circumstance?
Would the answer differ if an advert company uses the video for a television commercial?
The recent story of the viral video of little Success Adegor typifies these and more.
THE STORY OF LITTLE SUCCESS ADEGOR
One of such technological impacts on copyright played out recently in Delta State when a viral video of seven-year old Success Adegor emerged online.
In the video, the precocious little girl who had been sent away from school on account of non-payment of school fees, boldly stated that she would have preferred being flogged to being sent home from school.
Impressed by her boldness which belied her age and touched by the obvious financial challenges facing her parents, efforts were made to contact her parents and philanthropic donations poured in torrents.
Shortly after donations came pouring in, news reports made the round alleging that Stephanie Idolor (maker of the viral video) was making monetary demands from the family of little Success Adegor, and asserting that it was her viral video upload which led to the popularity of little Success and the monetary donations which attended its upload on social media.
It is therefore in light of the above that this article seeks to examine the possible legal consequences bordering on intellectual property rights which could arise by virtue of the alleged right by Stephanie Idolor over the monetary benefits accruing therefrom.
COPYRIGHT AS IT RELATES TO VIRAL VIDEOS
Under the Copyright Act, for an author to be eligible for copyright protection with regards to literary, musical or artistic works, such work has to be the original work of the author (qualified person as provided under the Act) fixed in any tangible medium of expression, from which they can be perceived, reproduced, or otherwise communicated.
For a work to be considered original it must be independently created by the author and it must possess some minimal degree of creativity. Where all these requirements are met by an eligible work, copyright automatically vests in it.
However, the Act has not stipulated such specific requirements for cinematograph works, which is the focus of this article, but it goes without saying that it has to be the original work of the author in a fixed medium.
Copyright in film protects the author’s exclusive right to make a copy of their film, make it seen or heard in public, and distribute commercially. These rights have a term of fifty years after the end of the year it was first published. The author also has the right to authorise the doing of these acts by other persons as well as the right to claim authorship.
Film and video in the context of this article refer to “cinematograph film” as defined in the Copyright Act to include the “first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a soundtrack associated with the cinematograph film”.
It is pertinent to state that with emerging technological trends, we now have viral videos which have been made possible as a result of the various social media platforms.
However, viral videos still remain a puzzle when it comes to intellectual property, as they are often shot without any creative intent or just for the fun of it.
In some cases, viral videos also tend to implicate other people or the property of others, or are shot without the subjects’ awareness or knowledge. Hence, a fundamental question to consider when discussing viral videos in relation to intellectual property rights is: who truly owns the copyright in such video?
Notwithstanding the intricacies associated with viral videos in relation to intellectual property, the copyright in a viral video vests in the maker of the video as provided in Sections 1(1)(d), 2(1), 3(1)(a) and 39 of the Copyright Act.
A person who feels such viral video is an invasion of his/her privacy or that it was shot without his/her consent, can at best, institute an action in Court to remedy such wrong, as the right to privacy is a right guaranteed under section 37 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
This is an issue which will be discussed subsequently in this work.
It is also the contemplation of the Act that the maker of an eligible work of intellectual property should also have such rights as are necessary to exclude others from appropriating such work without permission or proper remuneration.
In this regard, the Copyright Act particularly in Section 5 thereof confers on a copyright owner the exclusive right (subject to the exceptions in the second Schedule of the Act) to control in Nigeria the reproduction, broadcasting, or communication in any material form, the whole or substantial part of the copyright property either in its original form or any other form recognisably derived from the original work and to gain and receive royalties for any exploitation of the said copyrighted work.
Although the Act provides no definition of royalties, Black’s Law Dictionary defines it as a payment made to an author or inventor for each copy of a work or article sold under copyright or patent.
Investopedia dictionary defines royalty as a payment to an owner for the ongoing use of his assets or properties, such as patents, copyrighted works, franchises, or natural resources.
In most cases, royalties are designed to compensate the owner for the asset’s use, and they are legally binding. Within the context of the above definitions, there is no contemplation or provision for donations or gratuitous payments to constitute royalty.
In the instant case, the acts of the donors obviously did not go beyond the donations as to constitute an exploitation of the copyrighted work. Therefore, by no stretch of the law can such donations constitute royalties of which Stephanie Idolor would be entitled to.
This therefore clarifies the issue as to whether the donated sums should be regarded as royalties derived from the copyrighted video of Stephanie Idolor.
Deducing from the foregoing, it is well-settled that with regard to the monies donated, those monies were gratuitous payments made to finance the education of little Success and were not proceeds from any form of exploitation of the said video or direct payment for its usage.
Therefore, while copyright in the viral video vests in Stephanie Idolor, the monies donated in reaction to the viral video belong to Success Adegor, and Stephanie Idolor is not legally entitled to any sum therefrom as royalty.
It would have been a different case if both parties had agreed on a sharing formula prior to the making or uploading of the video on social media. In that situation, the agreement of both parties would have been binding. Such agreement must, however, be in writing.
Note that Success Adegor, being a minor, would lack the requisite legal capacity to make such contract. However, her parents or guardian would have been in a position to make such contract on her behalf.
Meanwhile, if there is to be any form of exploitation of the said video by any user (not within the exceptions stipulated in the second Schedule of the Act), then the consent of Stephanie must first be sought and obtained, and such consent may be given subject to such conditions and to the payment of such compensation as may be prescribed.
For instance, if a Company/Organisation intends to use little Success Adegor’s video for a television commercial, they must seek and obtain Stephanie Idolor’s permission with agreed royalties as copyright over the video vests in her.
ISSUE OF PRIVACY AND PERSONALITY RIGHTS
Bearing in mind that there was an intrusion of privacy or personality right, it is pertinent to ascertain the legal implication as to whether a person can assert complete right over a copyrighted work despite infringement on the rights of others.
An analysis of the Nigerian Copyright Act shows that once the requirements have been fulfilled for the copyright to be vested in an eligible work, same is complete in itself.
However, if there were any rights infringed upon in the process of making such work, that itself can be an impairment to such copyrighted work, as an injunction can be obtained against such work.
For example, if the parents of little Success decide to institute an action in Court against Stephanie Idolor for infringing on the privacy of their little daughter Success and for the said video to be taken down, in the event that such action succeeds, the video in question will no longer be available for public viewing, and Stephanie will not be able to derive any royalty from the exploitation of the said video.
In Nigeria, where a person’s image is used without consent, at best such a person can sue for infringement on his/her right to privacy as there is no known law specifically governing personality rights in Nigeria, but a right to privacy is guaranteed under Section 37 of the 1999 Constitution(as amended).
For purposes of clarity, it is expedient to reproduce the said section below. It states thus:
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”
It goes without saying that any intrusion into another’s personal life by whatever means or form, such as photography, videotaping, written articles or caricatures, may be ground for an action for breach of privacy as the right to privacy is a right guaranteed under Section 37 of the Constitution.
However, despite the provision in the Nigerian Constitution guaranteeing the right to privacy, Nigerian legal jurisprudence on the point has remained largely undeveloped (or perhaps more appropriately; largely underdeveloped) as other climes have moved forward to also make provisions for personality and image rights which cover situations such as the one in consideration.
In the United States of America where some States have developed a robust legal framework to prevent the exploitation of the economic benefits attached to the use of a person’s image, there is a specific provision for situations of privacy breach. One can sue for a breach of personality rights or image rights.
Image rights (known as the right of publicity in the United State of America) refer to a person’s right to commercialise aspects of his personality and also the right to prevent other people from commercially making use of them.
The case at hand involves a minor. Therefore, it raises the issue of infringement of the privacy of a minor. Specifically, Section 8 of the Child Rights Act guarantees a child’s right to privacy, subject to the parents’ and guardians’ right to exercise supervision and control over the child’s conduct.
Furthermore, Article 10 of the African Charter on the Rights and Welfare of the Child provides the right to privacy for children (the Charter has been ratified in Nigeria).
Therefore, in the instant case, where a video recording of little Success was made without the knowledge and consent of her parents, an action can be maintained on her behalf for breach of her guaranteed right to privacy.
The reverberation of technology has spurred several copyright issues which have exposed a yawning gap in our Copyright Law as regards Personality Rights.
The proposed Copyright Bill in Part VII thereof makes provision relating to online content. However, there are other issues that need to be considered, such as:
• There should be an explicit provision for personality rights in the Copyright Act or a new legislation should be enacted to address the issues arising from personality and image rights.
• A definition of royalties should be captured in the Copyright Act, in order to ascertain what it entails.
On the whole, it is important to fill the lacuna in the current Copyright Act and decipher ways to harmoniously implement same. Meanwhile, periodic amendments and reviews of the Copyright Act are imperative to ensure that it is on par with emerging technological trends in a rapidly evolving world.