The incidence of copyright infringement on the Internet has assumed a threatening dimension. Virtually every category of copyright work has been flagrantly violated on the Internet by infringing parties. Textbooks, literary texts, pictures, music videos, movies etc have all suffered and continue to suffer from the infringing activities of both innocent and criminal users, especially pirates. Of course, with the social network revolution, copyright owners now have over billions of potential violators on the Internet all around the world to worry about![1]

One of the issues that arise in relation to copyright protection and the Internet as a means of publication of copyright works is whether the Internet is a print medium like a newspaper or a broadcast medium like a television broadcast? The Internet with its multi-media technology combines the qualities of both broadcast medium and cable programme. Thus, a web material may contain film, music, pictures, text, speech and a collection of diverse works each of which may be subject to copyright.[2]                                              

Secondly, what amounts to publication on the Internet? The Act provides that a work shall be deemed to have been published if copies of it have been made available in a manner sufficient to render the work accessible to the public.[3] It is submitted here that making a work available on the Internet amounts to publishing the work. Authors who create their works and disseminate it via the Internet are eligible to enjoy copyright protection of their works, subject to satisfying the criteria of originality, fixation and connection.

According to Clive Gringas:

“…publication takes place not in the place of receipt of a copy but where the publisher invites the public to view the copies…”[4]
In effect, the relevant place of first publication is where the Internet server is located among the millions of computer networks making up the Internet. Publishing works on the Internet looks very easy and attractive at first sight. One of the reasons behind this is that authors can get to a wide range of audience all over the world, often at minimal or zero cost. This opportunity affords many authors and creators the ability to spread their works on a global scale. It is therefore reasonable for the copyright owners to seek legal protection of such products of their intellectual sweats, particularly the pecuniary interest in the published works as compensation for their expenditure of time, skill and effort.[5]

Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright does any of the prohibited acts set out under the law.[6] The End-User, in the context of this work, is any person who is a registered user of a social networking site. Upon sign-up, the end-user is entitled to an online account which enables him to access the network and enjoy its services. The relationship between the end-user and the social network is binded by a contract agreement upon sign-up or registration.                                  
A contract agreement exists between an end-user and the social networking site. As a binding contract, the End-User License Agreement[7] serves as the social network’s first line of defense where claims arise from aggrieved end-users. Often labeled the site “Terms of Service” or “Terms of Use”, the EULA provides the terms and conditions of the use of the social networking service.[8]                                                                                                              
The means of presenting the Terms of Use to the end-user is very important, both from the commercial and legal point of view. Most EULAs rarely involve formal registration processes because it is understandably considered to be too intrusive and technical. The risk of such option is the deterrence of potential users from completing the registration process. Of course, this is considered as not providing the social networking site with any competitive edge above others as visitors to the site require a reasonably fast and easy sign-up. The popular option among most social networking sites is to require intending users to provide full contact information on a registration page and to affirmatively click “I agree” only after being visually presented with all the terms of the agreement.                                   
Since it can be reasonably presumed that the registration of an end-user in a particular social network is a condition precedent to founding secondary contributory and vicarious infringements, let us briefly consider the nature of the EULA. In construing the EULA and deciding on whether it is binding or otherwise, the courts will consider, inter alia, whether the site’s registration process includes a conspicuously displayed agreement as part of the steps for sign-up.  Many sites, such as Facebook for example, choose the means whereby assent is obtained by simply asking users to acknowledge that they have read the Terms of Use. The Term of Use referred to are however available to the intending user for review.  

Having considered the nature of most EULAs, lets leave the legal implication for next week, shall we?                                                                                                                       

[1] Supra
[2] S. 51 of the Copyright Act interpreted cable programmes in a manner that encompasses or embraces the Internet: “Cable programmes” means visual images, sounds or other information sent by means of a telecommunication system otherwise than by wireless telegraphy – (a) two or more places (whereas for simultaneous reception, or at different times) in response to request by different users; or (b) for presentation to members of the public.
[3] S. 51(2)(a) of the Act
[4] Gringas C., 167 cited in Yusuf A. O. 54
[5] Adedeji A. M., International Journal of Contemporary Studies, 172
[6] S. 15(1)(a)-(g) of the Nigeria Copyright Act states these prohibited acts which under s. 16 of same attracts action for infringement of copyright.
[7] Hereafter the “EULA”.
[8] The fundamental essence of EULAs for social networking sites and end-users is perhaps better appreciated when one considers the recent case of United States v. Drew, No. 08-CR-582 (C.D. Cal. Nov. 26, 2008). It was a criminal trial involving Lori Drew, who was accused of creating a fictitious MySpace account (a social networking site). The account was used for the purpose of harassing Megan Meier, her 13-year-old neighbour, who allegedly committed suicide as a result of Ms. Drew’s cyber-bullying. Consequently, Drew was charged with conspiring to violate the terms of MySpace’s EULA. The EULA prohibits both the creation of fictitious accounts with false information and the use of the web site’s services to harass other members of the site. Drew was convicted by a federal jury on three misdemeanor charges of computer fraud for accessing a computer without authorisation.
[9] Viscounty P. et al, “Social Networking and the Law: Virtual Social Communities Are Creating Real Legal Issues” Business Law Today (2009) 8.

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Nigerian Law Today

NLT’s mission is to take legal-content writing to the next level in Nigeria by leveraging legal expertise and technology. We publish fresh, original, and insightful articles on areas of law we cover.

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