Posts in category: Blog

Copyright Protection for Text and Multimedia Messages over Social Media

The 21st Century came with a great deal of potential intellectual property issues. From patents for artificially intelligent machines to trademark licensing for transnational corporations, IP stands central to human interactions. Social media and its attendant instant messaging is also one of the best gifts of this age to mankind. According to recent statistics by DataReportal, 3.8 billion people actively use social media. That is approximately half of the world’s population and 63% of the world’s population old enough (13 years and above) to use social media. Apparently, with this multitude of people texting, tweeting and “captioning”, there cannot be a want of intellectual property concerns. Put perspective into proper perspective, are messages shared over WhatsApp, Messenger or Telegram, for example, copyright protected? Or do tweets and captions on the other hand enjoy copyright protection?

In the past centuries where personal letters were the main medium of communication, these letters enjoyed copyright protection as they fulfilled all requirements –they were intrinsically creative/original and were fixated. This rule is more complex than we imagine when social media is involved. The general rule for instant messaging is that there is a possibility of copyright protection provided the text, irrespective of how short, satisfies the presence of original content. The author of such text should normally hold the copyright but in instances where the originality of the text is conversational and dependent on response from the other party, it is proposed that copyright be jointly owned. By implication, the author(s) have the right to use, reproduce and gain commercial benefit. It is understood however that messaging occurs within apps and social media platforms and these platforms have Terms of Use or Privacy Policies which determine who owns copyright and how the content may be used.

WhatsApp, the third most used social media platform has a strict privacy policy that ensures security of conversations from third parties – including WhatsApp, and Facebook. In essence, WhatsApp determines that you own copyright to original texts you put out in a conversation or otherwise on a text status update and they will not be shared to others on WhatsApp or Facebook or third party apps and individuals. WhatsApp’s terms of service however provides that you grant them “a worldwide, non-exclusive, royalty-free, sublicensable, and transferrable license to use, reproduce, distribute, create derivative works of, display… information that upload, submit, store, send or receive on or through our services”. Your fears are allayed as this legalese simply means that you grant WhatsApp limited rights to hold your content (text and non-text) for smooth running of WhatsApp operations like delivery up of your text and multimedia messages, putting up of your profile picture etc. With regards to Intellectual Property generally, WhatsApp frowns at the infringement of their intellectual property and those of other users. Infringers risks termination of their accounts. However, the general public can use or share your original texts under the fair use doctrine or where such is used with your permission.

The same rule for text messaging applies to Instagram and Facebook. Nevertheless, it is important to know that once you sign up for Facebook and Instagram’s services, you license to them basically all your right to text and multimedia content you post publicly (non-exclusively). This means that they do not claim ownership of your content (that’s indispensably yours) but you grant them permission to use it; a very wide permission. Instagram is owned by Facebook and Facebook’s Data Use Policy enables it to share your data with other companies that Facebook owns. Again, you are solely responsible for the content you put out on these platforms. It is against their terms of use for you to post content infringing another’s IPR (copyright or trademark). You could be asked to take down the offending content once an Intellectual Property Infringement report has been made. For repeat offenders, their accounts may be suspended. There is also a provision to report Intellectual Property Infringement on WhatsApp.

Author: Ibukun Adisa-Simon

MESSI v RONALDO: THROUGH AN IP LENS

It’s been so long the world watched a live football match from the top European Leagues so much that people don’t sound like themselves anymore. Who would have thought that “abstinence” from football can give withdrawal symptoms? If you don’t mind, let us bring back some football vibes – that’s all we are left with too.

Football is a powerful game and we quite agree. It’s the biggest sport in the world; a four billion fan base is no joke, you know. And if you ask any true football fan, this game is currently ruled by two men, who for several years have sparked debates as to who the true king is. You guessed right, Messi v Ronaldo (you can tell us your GOAT in the comment section).

At this point, we will discuss some points at which football and IP intersect, while comparing these two on those points, with the aim of helping to discern who is truly the G.O.A.T IP-wise. You ready? Then let’s kick-off this match-up, with a little IP concept called Image Rights

WHAT ARE IMAGE RIGHTS?

Image rights refers to the rights of certain bodies or organizations, to use the elements which come to constitute the likeness of a particular person for commercial purposes. That is, it is the right to use a player’s image, voice, catchphrase, and other things associated with that player’s likeness, for commercial gain. This is often done through endorsement, or sponsorship contracts. Image rights represent in this modern age of football, a huge source of income, especially for top footballers, as various companies will be looking to exploit the fan base of people like Ronaldo and Messi, to market their products.

VERSUS: when it comes to number of companies tapping into his image rights, Lionel Messi is currently said to have about 9 brands on his back, with a notable lifetime contract with Adidas, and other sponsorship deals with brands like Pepsi, Gatorade, MasterCard, and so on. However, in this round, the clear winner with a knock-out is Cristiano Ronaldo, with a shocking number of 31 endorsement deals, with a number of companies like Tag Heuer, Armani, his own life contract with Nike, Dolce and Gabbana e.t.c. This makes Ronaldo the most marketable football player on the planet.

TYPES OF IMAGE RIGHTS

Image rights as it relates to footballers comes in two forms. The first, Personal or Individual capacity; in which contracts are made with a player in his individual capacity alone. Hence, any representations by an endorsing company made will not incorporate the elements of his club or team in their marketing. Second is Club capacity; where contracts and advertisements made will be made through the player’s club and will involve the club’s identity in it, e.g Chivita CO’s advert involving Paul Pogba, Juan Mata and De Gea, all players of Manchester United.

VERSUS: Sometimes, there can be clashes in the negotiation between the two different forms. For instance, Cristiano Ronaldo holds a lifetime agreement with Nike, however, both his former and present clubs, that is Real Madrid and Juventus, are both sponsored by Adidas. Lionel Messi on the other hand, also holds a lifetime contract with Adidas, but his club Barcelona, has been sponsored by Nike for the past 20 years. Such arrangements are potentially harmful to the clubs considering that their respective sponsors are competitors.

HOW ARE THEY STRUCTURED

Image rights could be declared ordinarily as part of a player’s earnings. However, they will be taxed at a normal rate along with the rest of the person’s income, and in case you didn’t know, the tax rate for millionaire footballers is quite high; a whooping 45%. So what do players do to escape this tax encumbrance? They enter deals with IRCs. IRCs or Image Right Companies are companies created by footballers to which their rights are transferred to. The company takes ownership of the player’s rights, and exploit it commercially on his behalf. The result; the company which now holds the rights is taxed instead of the player, and they are taxed just corporation tax; at a mere 19%.

VERUS: In 2015, Cristiano Ronaldo sold his image rights to Singaporean billionaire, Peter Lim, who owns Mint Media to serve as an IRC for him. However, this author has found no evidence of Lionel Messi setting up an IRC for himself. Hence, this round awards points to Ronaldo for going a step further in protecting his IP.

TAX TROUBLES

While for footballers, IRCs represent a nice way to convert their earnings to dividends which are taxed at a lower rate, for others, especially the authorities, they simply represent a lacuna in the law which allow evasion of tax. However, problems arise, when players don’t even declare their income at all

VERSUS: Lionel Messi has, rather disappointingly been convicted twice for tax fraud. In 2016, he was convicted of tax fraud and sentenced to a 21 month imprisonment term, after discovering his evasion of over €4 million in tax. Ronaldo on his own end is no saint, as he had to pay a €19 million settlement fine to the Spain Finance ministry, after being found guilty of evading over €14.7 million in tax on Image Rights earnings. There will be no winners in this round, as this author will not award points to law breakers.

TRADEMARK PROTECTION

Footballers are very popular people. As such, a lot of products are sold in their name, and they might seek to protect their brand, hence the importance of getting their brand trademarked.

VERSUS: When it comes to Trademark protection, Cristiano Ronaldo doesn’t seem to be doing too badly, with 47 registered marks globally (for marks using his name or the phrase CR7). However, the winner of this round without much argument, goes to Messi, who leads the game with 76 active registrations, for registrations using his name, logo, signature, and stunningly, he holds a trademark for his son.

CONCLUSION

The final whistle has been blown, and the results are in. When it comes to Trademark protection, Lionel Messi leads every player in the world, and making over 27 million Euros annually from his endorsements is not bad. Ronaldo on the other hand, may not be the leading trademark protecting player, but when it comes to the worth of his Image Rights, makes over 47 million Euros, almost double that of Messi, plus he has an Image Right Company. And so the winner is;….. completely up to you of course. It would perhaps amount to injustice for this author, to project one player as better than another, when both of them have an IP game almost as spectacular as their game on the pitch.

Author: Chiziterem Ogbonna

Extended Reality Technology; Sit in and Stay out

Extended reality is an advanced technological development which was introduced by Paul Milgram. The basic concept of this technology is to enable people to experience the physical and virtual environment through immersion rather than observation. That is, through technology people are immersed into a world which they are in actual fact absent from. Extended reality technology is quite advanced and is gaining grounds in aspects such as real estate, entertainment, marketing, etc. This technology brings to life the reality of the whole world being one small whole and through the power of digital technology, there is the possibility of meeting up with appointments around the world from the comfort of your home.

In the light of modern day reality, and at such a time as this when almost the whole world is on an automatic shut down due to the Corona virus pandemic, it would be impossible for one took away from the goodness of extended reality technology. While its inculcation may prove to be a strain on the budget of any nation (Nigeria especially), the benefits and interests definitely outweigh whatever cost may be incurred.

Let’s take our educational system for example; one thing is it’s a great medium for all students who get to sit at home to still get the feel of school and be immersed in just the right environment for learning from the comfort of home. Imagine being connected with all your buddies from school and learning like all is fine with the world around you, with no fear whatsoever that the person right next to you may sneeze the next moment. Now that’s something the government of any nation ought to give a thought to; immersed class sessions!

Moving on, though the global market for extended reality technology is still in its infant stage, ER technology is like the future on your finger tips. Teleporting and transacting around the world from the comfort of your home. This technology development holds a promising future for businesses most especially real estate, as a prospective buyer need not be present to examine property but can do so with ease and from the comfort of wherever they are around the world. Though the initial implementation costs may be huge, its foreseeable benefits are tremendous and it very well yields faster and timely productivity.

In conclusion, extended reality technology promises the world a future where all can truly be one; fit together in a tiny globe of technology; and at such times as we are in, it would not hurt for top world investors to give it a trial.

Author: Sandra Attoh

The Subtle Danger in Big Trademarks

Could a trademark ever become too big for its own good? Yes. Well that depends largely on the territory of the trademark (trademarks are territorial rights). So a trademark in Nigeria could probably never become too big for it’s own good but in the United States and Europe, yeah, that’s a thing. Is it a good thing? I think it is and I’ll try to explain why I think it’s a good thing shortly.

Before I go into what it means for a trademark to become ‘too big’ in my opinion, I will explain what it means for a trademark to be big. And what is it for a trademark to be big? There is such a thing as well-known trademarks in the IP space, and well-known trademarks enjoy a lot of benefits over other not-so-well-known trademarks. One of the benefits well-known trademarks have is that, in some countries, even when a certain mark is not registered but it has gained enough reputation i.e is well known, such mark is still protected. Another major benefit for well-known marks is that Article 6bis of the Paris Convention basically states that no member state of the convention should refuse to register a mark which is already well-known in another member state. Remember the Tesla story in 2014? No? Okay. Basically, Tesla was about to introduce its products in the Chinese market but first, they needed to register their TESLA mark but they then found out that someone else had registered the mark, without use, in 2006 which was three years after Tesla first registered in the United States. Eventually, using Article 6bis, the United States was able to get China to invalidate the registration. So yeah, when you’re big, you’re big.

So what then is too big? Section 14(3) of the Lanham Act of the United States provides that a mark can be cancelled at any time such mark becomes the “generic name for the goods or services, or a portion thereof, for which it is registered”. What does being generic mean in respect to a registered mark? Elliott v. Google where the plaintiff filed to have the defendants trademark, Google, cancelled because according to them, it was common knowledge that the act of internet searching was now often referred to as ‘Googling’. Which is quite true because I’m pretty sure that everyone reading this has once said or hear someone say “Let me google this”, or “I’m going to google that”. This is of course because Google is undoubtedly the most popular internet search engine all around the world (except maybe in China?). So is Section 14 of the Lanham Act trying to say “Okay, you can have your trademark but make sure you don’t get too popular”? No. Not at all.

In the same case of Elliott v. Google, the Appeal Court, ruling in favour of Google, held that using the word ‘google’ as a verb to mean to search the internet does not automatically constitute generic use. Also, a claim of must be made in relation to a particular good or service. Moreover, when Congress amended the Lanham Act it explained that, “A trademark can serve a dual function—that of [naming] a product while at the same time indicating its source. Admittedly, if a product is unique, it is more likely that the trademark adopted and used to identify that product will be used as if it were the identifying name of that product. But this is not conclusive of whether the mark is generic.” What all of this basically means is that a verb use of the mark does not make it generic and until the act of using other search engines, other than Google, to search the internet is referred to as googling or other search engines begin to refer to themselves as googles, the mark is not generic. And you may think that is impossible but it has, as a matter of fact happened before to THERMOS, ASPIRIN and CELLOPHANE.

Back to Nigeria, according to the Trademark Act of 1960 (why we still apply laws from 1960 to regulate trademarks in 2020 is a question for another day), a mark can only be invalidated if it was registered on grounds of fraud or where such trademark is deceptive, scandalous, contrary to law or public morality. Why do I think our trademark laws need to be amended and should include a provision that a mark can be invalidated when it becomes generic? That’s pretty simple as I think it’s the same reason the whole concept of genericness is a good thing. A trademark should be distinctive and not descriptive. When a mark, any mark grows beyond that and gets to a point where it is used to refer to other products, which should ordinarily have their own marks, that mark is no longer distinctive.

In a Nigeria where such provision was in our trademark laws, we might have seen suits to challenge the validity of marks such as Close-Up, or NEPA – if it was a mark. And although I do not know, as a matter of fact, if these challenges would be successful or not, I know that they will be good for the health of our trademark laws and put it in a Tyson Fury shape as opposed to the Wilder shape -after his fight with Fury- it currently is in (this reference is based on their second fight only).

Author: Joshua Solomon

The Advent of 5G: The Impact on our world and IP

You thought 4G was fast, well, 5G is mind-blowingly faster and more speed means, it will burn your data. The transition from 4G to 5G this time is not just about small difference in internet speed, 5G is going to impact everything, changing the world as we know it and of course, IP is not exempted.

5G refers to the 5th Generation of cellular network technology. It explores a frequency spectrum higher than what has been used by previous generations and this gives it much better internet speed making it at least twenty times faster than the previous generation, 4G. Speed tests done at MTN’s 5G Demo Launch in Abuja show that a 2GB movie that would have taken 5 minutes to download on 4G, would be downloaded under 19 seconds using 5G and as for streaming, well, 5G might just be the end of video buffering. 5G also gives much lower latency rates, latency rate is the amount of delay between sending and receiving information. Human reaction time is about 200 to 300 milliseconds, 4G takes about 100 to 200 milliseconds to respond and 5G, does it in a millisecond, 400 times faster than the blink of an eye.

Asides watching and downloading movies, how will these mind blowing speeds affect our world? With such low latency rates, autonomous driving will fast become a reality; self-driving cars will respond to information around them and send information to other cars and objects around them faster than it would have taken a human to respond. With such reduction in time delay, remote interactions can be done in almost real-time, this means that online virtual reality simulations involving different people at different locations will be much more accurate. Also, remote surgery (which involves a specialist doctor performing a surgery on a patient from a different location) would now be possible and actually effective. 5G will enable more devices to be connected to the network and enable them to communicate and share data with each other – an internet of things. 5G is bound to bring new technological innovations to every sector of life. And then, there’s Intellectual Property.

To start with, it is common knowledge that behind every big technological innovation, there is or most times, there are a mass of patents trailing behind. 5G is a big technological innovation and of course behind it is a long trail of patents. According to IPlytics, the patent race for the 5G innovations have been on since 2012 and presently, big tech companies like Huawei, Samsung and Qualcomm lead the race for more intellectual property rights on this money train.

One thing that can be agreed on is that 5G is going to take the world to the next level of digital technology. When the Internet was first developed and became widely used, there was a need for intellectual property policies and practices to be developed to meet the new issues that came with the arrival of the internet. So also, with the rise of new technologies with 5G, there is a need for adaptable intellectual property policies and practices, to be able to answer the questions that come with the new innovation. For instance, as 5G speeds up the use and creation of the ‘Internet of things’, as defined earlier, questions like who would have ownership rights to the data stored and shared on and by these devices are bound to arise and new policies or new interpretations for existing policies have to be made to meet this new demand.

A new age of wireless technology also paves way for a multitude of new technological innovations. One of the goals of Intellectual Property Rights protection is to promote innovation and ensure innovators reap the rewards from their creations. As 5G brings new innovations, it also brings business on intellectual property rights protection in form of licensing, consultation, dispute resolution etc. The arrival of 5G will bring a new set of licensing disputes and intellectual property conflicts both on the use and development of the 5G technology itself and on new innovations that rise from its use.

5G generally underscores the use of the digital space and has a much larger network capacity than previous generations, this means that with the development of the 5G network, a lot more interactions would be done online and much larger mass of data would be saved and transmitted on the internet. This creates a potential risk because hackers with malicious intent would be looking to tamper with or steal some of this information stored or transmitted on the network, this means that effective digital security systems have to be developed to prevent data theft. This fear of data theft is what caused the United States and other countries to prevent the tech giant, Huawei from developing their 5G network, and truly in the past, there have been multiple cases of China-based companies being accused of Intellectual property theft like stealing trade secrets causing large corporations to crash.

Intellectual Property is key to development and though the 5G network is set to make innovation thrive, it also creates a risk of innovations being stolen in 5G speed. 5G is still on its way and there are still many hurdles to surmount before it becomes a reality. Though the blazing internet speeds might not be good for your data cap, with the rise in innovation 5G brings, IP might just have struck oil.

About the Author

Samuel Oluwasegun is a 200 level law student with avid interest in Intellectual Property law as well as Fintech law. He is interested in the use of Law and Technology to impact society.
He can be reached on
Twitter – (@I_am_Shegun)
and
Linkedin: https://www.linkedin.com/in/oluwasegun-samuel-a784b8179

SMART CONTRACTS

Nowadays, every item seems to be getting a smart counterpart (many perhaps not worthy of the tag). We now have smartphones, smart watches, smart lighting, smart fridges, smart TVs and now we even have houses that are called smart homes. Against this backdrop, it should come as no surprise to anyone that we also have smart contracts. In actual fact, the concept of smart contracts is not particularly new, albeit, with a relatively recent implementation. The concept was first developed in 1994 by Nick Szabo, a cryptographer. Szabo came up with the idea of recording contracts in the form of computer codes which would be self-executing, thereby dispersing with the need for trusted intermediaries. Of course, the idea could not be implemented at that time because there was no Blockchain Technology, neither was there an alternative system of making irreversible transactions on the internet. Thus, the first implementation of smart contracts came with the development of Bitcoin in 2009, which not-so-incidentally was also the first meaningful application of Blockchain Technology. So just what exactly are smart contracts?

Smart contracts are self-executing contracts with the terms of agreements between parties being directly written into lines of code. The code and the agreements contained therein exist across a distributed decentralized blockchain network. The implication of a smart contract being based on the blockchain is that it is stored on a public database and cannot therefore be changed. Evidently, two distinctive qualities prove themselves indispensable to any discourse about smart contracts: its self-executing quality and its irreversibility; the former forms the core distinction of smart contracts from their traditional counterparts. Smart contracts are self-executing because they work on an If-Then premise, that is, certain terms are set, stating certain conditions or events that must occur to trigger execution, upon such occurrence the contract is executed (mostly a transfer of value) and is thus settled. This way, parties are not dependent on one another for fulfillment of obligations, neither are they dependent on any ‘trusted’ intermediary to secure execution. This is particularly useful in that, parties unknown to each other can easily enter into a contract without anxiety, since the trust needed in the contract is invested in the system rather than in each other.

It is important to state that while smart contracts are indeed based on the basics of a traditional contract, it would be grossly misleading to view them completely in the same light. The two types of contracts differ with respect to execution as already explained above. Also, a valid traditional contract is deemed a legal agreement, on the other hand, the codes in a smart contract embodying the terms of the agreement are not automatically endowed with such recognition, although this might be possible under certain circumstances. In order for smart contracts to be accorded considerable legal recognition, many techno-legal questions still have to be resolved.

One fact remains quite clear, smart contracts do have several benefits which are only possible as a result of the separate position it occupies from traditional contracts:

First, smart contracts afford parties a considerable degree of transparency as the terms and conditions with respect to an agreement are laid out bare in absolute detail, to be thoroughly checked by parties before agreeing to them. Furthermore, the lack of intermediaries in smart contracts ensures that efficiency is not lost due to communication gaps. Also, Smart contracts, as a result of their online nature, can be completed at incredible speeds, thereby saving precious time. With this speed comes a new dimension to contract-making in various fast-paced industries as well as bringing about a convenience that a traditional contractual process would struggle to attain. Smart contracts, when implemented correctly, have been said to be able to provide a greater degree of contractual security. In addition, with smart contracts, every agreement, every process, task and payment can have a digital record and signature that could be identified, validated, stored and shared; thereby, making for a better data storage.

The possibilities made foreseeable by the advent of smart contracts are so wide that they cannot be comprehensively exhausted in this article, however, in order not to create a misleading utopian image of smart contracts, it is necessary to shed light on some of its limitations:

The premise upon which the usefulness and potentials of smart contracts seem to be based, is that it is minimally plagued with problems. While this might be true (to an extent) in the present major use of smart contracts, that is, crypto currency; it is hard to imagine that this level of smoothness would continue to be maintained as the use of smart contracts breaks into other industries as has been projected. Smart contracts, not being very much endowed with legal recognition, do not have a dispute resolution structure comparable to their traditional counterparts. Thus, the efficiency of smart contracts largely rest on the lack of disputes, that is, an ideal setting, which of a fact would not be the case 100% of the time. In fact, it is not difficult to imagine some problems that would make situations very much unideal, for instance: some smart contracts are completely written in lines of code, one of the parties to the contract might not be well versed in interpreting the code and might end up entering into an agreement substantially different from what he intends, what would be the remedy in such a case? There could also be a misrepresentation of goods and since smart contracts can be completed online, what would be the remedy for the buyer in such an executed contract? Also, who would be held responsible for coding errors which render a smart contract utterly different from what is intended? What about the issue of jurisdiction in smart contracts completed between multiple nationals? All these are questions that come up and without a doubt, there are more. An examination of the development of contract laws in various countries reveal complexities that make contracts much more than simply parties, agreements and terms. It is therefore obvious that smart contracts are far from perfect as they do not yet have a satisfactory response to these possible (and in fact expected) complexities.

Indeed, smart contracts have quite the bag of potentials, however, it remains important that we do not get ahead of ourselves. In this vein, there is a need for the creation of some requisite framework that takes into account the peculiarities of smart contracts, as this is the only way through which the idea of smart contracts can be reasonably enjoyed without the positives being outweighed by the negatives.

Fabarebo Victor is a 300 level law student at the University of Ibadan. He takes interest in technological innovations and loves learning about multiple perspectives to issues.

Victor can be contacted through:
LinkedIn: https://www.linkedin.com/in/fabarebo-victor-a9a047157
Email: ayodejivictor938@gmail.com