Last week, we started by considering the nature of legally binding EULA,[1]the question on liability of the end-user of a social network will now be more appreciably discussed.[2]

Many social networking sites allow users to post photos, videos, music and other digital contents for public viewing. Since the contents are usually copied and distributed, this often results in a worrisome rate of copyright infringements on within social networking sites.[3]

                                                     
On YouTube for instance, millions of videos are uploaded for public viewing, and end-users can also post theirs after agreeing to its terms of use. Mainly, from the end-user perspective, copyright infringements arise when an end-user uploads a video by third parties. This means that in the course of using a social networking site, the end-user is most likely to come in contact with content created by well-established copyright owners.[4]This category of copyright owners includes content created by large motion picture studios, popular authors, or famous music stars. Since copyright subsists in them, any unlicensed or unauthorised use will be an infringement.

However, there is an increasing number of videos, music and books by pedestrian user-created content. This category of works is also protected by copyright and actionable upon any alleged infringement. Therefore, it means that the end-user does not only have the music video of Tuface Idibia, the popular Nigerian act, to be cautious about in his use of the social network facility, but also the video of the “Final Year Law Students Seminar of the 2011 Class, UNIBEN”. Where the end-user decides to upload these contents to the web with the use of the facility of the social network subscribed to, the copyright owner can institute an action against  both the social networking site and the end-user as joint infringers.[5]

Both real and potentially, many activities on social networking sites portend a dangerous threat to copyright protection in the information age. The copyright owner enjoys certain exclusive rights. These rights have been statutorily protected under the Nigeria Copyright Acts,[6]and they include: the rights to produce the work in any material form, publish the work, perform the work in public, distribute copies of the work, and display the work publicly. The actions of the  infringer that would be considered a violation of the copyright of the owner where his consent or authorisation is not obtained are prohibited acts or infringing acts.  In the event that any one of a   copyright owner’s rights is infringed, the law provides for criminal sanctions and civil liability  against the direct infringer.[7]

From the provisions of the Act above, it follows that the position of the law is that a copyright owner may be able to recover civil damages from social networks hosting an infringing work in lieu of the direct infringer. This operates under the theories of contributory infringement liability or vicarious infringement liability,[8]depending on the circumstances of the case.


Secondary Copyright Infringement Liability              

Contributory copyright infringement and vicarious copyright infringement are the two related but distinct common law theories by which one entity can be held liable for secondary copyright infringement.[9]In other words, the site operator can be liable for the copyright infringement of an end-user. Under contributory infringement, intention to induce another to commit the infringement is required, while vicarious infringement occurs when one party profits from the infringing activities of another.

However, for the copyright owner to succeed in an action for vicarious infringement of copyright against a social network, the social network or service provider must be proved to have failed to exercise a right to stop the infringing activity.

To protect itself from incessant actions by copyright owners or copyright societies collectively representing the interests of copyright owners of movies, music, eBooks etc, the social network operator must be manifestly seen to be safeguarding the interests of the owners of copyright in the works in their database at all times. The social network must not be seen to be profiting from the infringing acts of the end-user (where that happens to be the case), or be found to have any reasonable knowledge or reasonable suspicion of the prohibited acts of the end-user or visitor to its social networking site.

It is important to note that apart from knowledge of the prohibited act, any reasonable suspicion of the said act is also a ground for liability. Section 15(1)(f) of the Nigeria Copyright Actis applicable here just as it is also instructive, in this case, for social network providers:

15(1) Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright –
(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringement of copyright in the work, unless the person permitting the place to be used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of copyright.
To avoid or reduce law suits by aggrieved copyright owners, it is strongly advised that reasonable supervision of the activities surrounding the use of its facilities should be maintained by social networking sites. The standard of supervision by social networking sites would go a long way in ensuring an appreciable level of copyright protection on social networking sites.[10]


[1] End-User License Agreement                                                                  
[2] More so, the EULA is important as it proves that there is an ongoing relationship between the social networking site and the end-user or person who used the facility to perpetrate copyright infringement. 
[3] To upload videos, users must grant YouTube the ” worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform” the videos. See YouTube, Terms of Use, ¶ 6(C), http://YouTube.com/t/terms (Accessed on September 28, 2011).
[4] Well-established studios like Universal, Twentieth Century Fox and Warner Brothers use YouTube for content promotion.
[5] Subject to proving contributory or vicarious infringements liability as discussed in the earlier part of this work.
[6] Ss. 6,7 and 8
[7] S. 24 of the Nigeria Copyright Act provides that it shall be permissible for both criminal and civil actions to be taken simultaneously in respect of the same infringement under the Act. S.30 is specifically on criminal liability of persons involved in certain infringing acts.
[8] Both contributory infringement and vicarious infringement are secondary copyright infringement liabilities since it is the end-user of the social networking site that directly committed the prohibited act in question. The site operator, by operation of law, is imputed with indirect or secondary liability since it provided the platform.
[9] Darrow J., and Ferrera G., “Social Networking Web Sites and the DMCA: A Safe-Harbor from Copyright Infringement Liability or the Perfect Storm?” (2007), 6 Nw. J. Tech. & Intell. Prop. 1. http://www.law.northwestern.edu/journals/njtip/v6/n1/1
[10] Indeed, copyright administration, regulation and enforcement agencies, such as the Nigeria Copyright Commission (NCC), need to begin to focus attention on the business models of social networking sites and other internet end-user service providers whose services involve the use of copyright works such as movies, videos, music, books etc.

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