Some weeks back on Netflix’s Instagram page, it was announced that Homecoming was due to release on April 17th, and it left people speculating what it could be; some guessed that it could be linked to the Queen of Pop’s 2018 Coachella performance, others thought it had to do with Spiderman. However, it concerns the former. This article will focus on the Intellectual Property Assets in the project.
The copyright protects the artistic or
literary expression of a creative work of a person, in this case, an artiste.
It empowers the artiste to economically benefit from his/her work which must be
original, fixed and on which sufficient effort has been expended. Copyright
gives exclusive rights to the artiste over such work to the exemption of
others. Nobody has the right to reproduce the song without the prior license of
the artiste. This is also referred to as Mechanical Licensing. Beyoncé has the
exclusive right over the songs, together with every other artiste that
contributed to the album.
Section 10(4) of
the Nigeria’s Copyright Act provides thus: “in the case of a
cinematography film or sound recording, the author shall be obliged to conclude
prior to the making of the work, contracts with all those whose works are to be
used in the making of the work“.
The contracts referred to in that provision of the law include Spleet sheet and Cue sheet. They are explained in the subsequent paragraphs.
a.) Split Sheet: This
is a document that stipulates the proportion of royalty due to the people that
took part in the production of a song, from the producer to the songwriter to
the artiste. Simply put, it is a short document that details which songwriter
owns what percentage of a song. This means that the percentage of one of them
might be more than the other. In the US, in the absence of a written agreement,
each co-writer automatically owns an equal share in a song. The importance of a
split sheet is to make co-writers of a song to agree in each’s ownership. It is
written down in white and black
Now, to the Homecoming Album – it has 37 original tracks, and 3 others from other artistes which were modified, totalling to 40 tracks. In these songs, although there are solo tracks, there are others that have other artistes in them. How then does the split sheet come in? The split sheet will help each of the songwriters on a song to know the percentage of royalty due to him or her based on his or her input to the song. Hence, for example, the split sheet will stipulate how royalty from songs between Beyoncé and other artists like Jay-Z, Solange, Ciara amongst others would be shared or allocated.
b.) Cue Sheets: They
are the primary means by which performing rights organizations track the use of
music in films and TV without which it would be almost impossible for composers
and producers and publishers to be compensated for their work. If the creator
or producers of a song are more than one, the royalties will be divided other
than equally but in a way that reflects each’s contribution to the song. Hence,
for the Homecoming album, Beyoncé and any of the artistes featured in any song
on the album would be entitled to royalties if any of their songs is an
underscore in any movie or TV series.
To start with, synchronization means when a song is played in the background of another work such as; games and adverts. To use any artiste’s song as a background song, the artiste must have licensed such other person. Thus, for any of the songs on the album to be used for synchronization, it is a prerequisite that a license must have been obtained. Failure to obtain a license can lead to a legal suit.
For the documentary, Homecoming, Netflix has exclusive broadcasting rights. What this means is that only Netflix has the sole authority to broadcast the documentary and no other broadcasting corporation has such right. Netflix had to pay 20million dollars to acquire exclusive broadcasting rights. Broadcasting rights generate a whole lot of royalties for both the artiste and the licensee.
THE ARTISTIC DESIGN
The album cover has the lettering
written in capital letters with a lot of Greek symbolism which makes it
distinct from any random wording or title irrespective of the fact that there
are a couple of books, movies with the title ‘Homecoming’. The album also has
the portrait of the Beyoncé putting on a jewel-laced hat which is also
symbolic. However, research does not reveal the artist who created this work as
they were not credited for the design of the album cover. This may be because
the artist has probably been assigned the work, having transferred their right.
In conclusion, where these IP assets are
infringed, the potentials of a big judgment credit or settlement are high
considering how much work was put into its creation.
The English Premier League is unarguably
the best league in the world when it comes to sports business. This can be
easily traced to the massive amount of money realized by football clubs and
players from endorsement deals; sponsorship agreements between clubs and big
companies; sales of goods bearing the Premier league club’s Logo; whooping sums
paid to acquire exclusive rights to broadcast matches to fans across the globe.
The terms, “Brand Endorsements, Sponsorship, Merchandising and
Broadcasting in relation to the English Premier League are discussed below.
Sponsorship simply refers to how companies
provide financial support for a particular competition so as to promote the
sales of their products or for people to request for their services. In the
English Premier League alone, about 9 football teams are being sponsored by gaming
companies such as Defabet, M88, W88, Man BetX, SportPesa, Betway. These
companies pay the football teams huge amount of money to have their trademark
in form of logos or names on the team’s kit. For instance, Manchester United
has the biggest sponsorship agreement as they are paid £47m per season to wear
the Chevrolet logo on their kit.
Recently, the English Premier League signed Coca Cola as its
official soft drink sponsor. In the words of
Sports sponsorship expert Nigel Currie, “My view is that Coca Cola will
have seen what PepsiCo have done with their Champions League sponsorship, which
they have used to promote different brands they own into different geographic
territories….. the Premier League has a very similar reach in terms of
popularity around the world, and Coca-Cola will be thinking they can do the
same as Pepsi has done.”
The Main IP right involved in sponsorship
is the trademark which is simply a name, logo, or symbol used to identify
particular goods or services. In the case of Chelsea football Club which is one
of the teams in English Premier League, the name “Yokohama Tyres” is plastered
in front of the Club’s jersey as the Japanese tyre Manufacturer pays about £40 Million,
just to have the name in front of the jersey.
It is noteworthy to mention that the
term “Endorsement” does not have an unequivocal definition. It means
so many things depending on the context in which it is used. According to
Investopedia.com, the term in relation to football deals refers to “a
public declaration of support for a person, product, or services.” An
endorsement deal is a contract which involves a form of advertisement involving
a famous footballer who has a high degree of trust, recognition and respect
among football fans. In the English Premier League, famous footballers such as
Eden Hazard, Paul Pogba, David De Gea, Vincent Kompany, Kevin De Bruyne, Mesut
Ozil among others all have endorsement deals.
Hence, Companies believe that such
endorsement will influence fans to buy their products, leading to profits for
the companies. It suffices to say club sponsorship and player’s endorsements by
corporations are useful strategies to communicate with consumers. In February
2019, Harry Kane signed for the razor’s firm Harry’s to become the
branded face of the brand. Another
footballer in the Premier League who boasts of big endorsement deals is Mesut
Ozil. The Arsenal star surely has the
influence to expand his endorsement footprint with almost 10 million Twitter
followers and over 28 million Facebook fans. This shows that Ozil has a huge
social media presence and with this, he has endorsement deals with brands like
Adidas and Mercedes Benz.
The Intellectual Property rights
involved here are the patent and image rights of players as some of these
endorsement deals involve players endorsing a new and useful process, machine,
manufacture or any new and useful improvement such as quality of a new boot
made by sportwear giants. For example, Chelsea’s Eden Hazard who has an
endorsement deal with Nike for a long time now (since 2012) helped in launching
the Nike Mercurial Ultra Flyknit Vapor in 2018.
Merchandising is often used as an
effective tool to attract sponsorship for special events. It is common for
organizers of football matches or football teams to authorize sponsors to
manufacture and sell merchandise bearing the Football team’s or Competition’s
trademark or symbol. Hence, football teams in English Premier League make a lot
in terms of selling products with their names and logo on. Examples of such
products are the scarfs, jerseys which are commonly worn by fans of different
Premier League teams around the world.
The main Intellectual property right
here is the trademark and industrial design or design patents. According to a research
conducted by World Trademark Review in 2018, for the third year in a row,
Manchester United boasts the most trademarks of any club in the English Premier
Broadcasting rights are very important
as they help to protect broadcasters who pay huge amount of money to acquire
the exclusive rights to broadcast major sporting event live to audience across
the globe from making a loss in their business.
The Premier League’s last deal for
broadcasting rights agreed in 2015 and which runs till 2019, was worth £5.14bn.
Also, according to a report by the British Broadcasting Corporation, “the
rights to show Premier League games from 2019-2022 have been sold for £4.464bn
– with two live packages still to be sold…Sky Sports have won the rights to
four tranches – 128 live matches – while BT Sport have one, comprising 32
The dominant IP right here is the
related rights which can be relied upon by companies such as Sky Sports, BT,
DAZN, TSN among others. In effect, it helps to protect broadcasters who pay
huge amount of money to acquire the exclusive rights to broadcast Premier
league games from making a loss in their business as there exist the related
rights which can be invoked to prevent other companies from rebroadcasting their
work or recording and selling videos of it without their permission.
it is clear that the relationship between the English Premier and other
companies seeking to develop their brands through brands endorsement,
sponsorship, merchandising, and broadcasting is a symbiotic one – a win-win
situation for both parties. As EPL fandom increases, and the scope of IP
continues to widen, it is no gainsay that EPL’s place as the biggest league in
the world has come to stay – just as much as the indispensability of IP to
sports will be gaining traction.
Blockchain is an incorruptible digital ledger of economic transactions that can be used to record data exchanges.
In actual fact, the concept behind the Blockchain was conceived as far back as 1979 by Raiph Merkel who used a peer to peer network to verify data structures but Blockchain was popularized in 2008 with the emergence of Bitcoin cryptocurrency.
Blockchain is not the same as cryptocurrency or Bitcoin. It only happens that few cryptocurrencies like Bitcoin and Ethereum make use of the blockchain system.
With the prospect of blockchain hitting industries like banking, insurance, entertainment, it may lead to legal issues in financial regulations, data privacy, security and intellectual property.
Faith Obafemi is a digital lawyer whose practice area revolves around legaltech, cryptocurrency, blockchain, STO, ICO and smart contracts. As a Founding Partner at Lex Futurus, an international blockchain law firm, Faith helps her clients illuminate and navigate the crypto dark maze. She has spoken on the intersection of blockchain and law at events within and outside the country. When she’s not decoding the law for her clients, you can find her learning to become a Smarts Contracts programmer or watching Korean series. She is simply extra, a tripartite combination of a lawyer, writer and a geek.
Be it in hype or substance, blockchain is a phenomenon everyone is learning to become familiar with as heralding the dawn of the fourth industrial revolution. Beyond the financial services industry, enthusiasts of the Distributed Ledger Technologies (DLT) are adopting blockchain for virtually one new use case daily, from agriculture to zebra-crossing Smart Cities. A survey by Deloitte showed that the future of blockchain is one filled with myriad opportunities for which individuals, companies and governments are trying to position themselves. Almost half of the executives surveyed said they would be investing at least $5 million in exploring blockchain this 2019. It can be expected that these investment in R&D (Research and Development) would result in innovations that need to be protected under Intellectual Property Rights (IPR).
Intellectual Property (IP) for something like a car or solar-powered fan is easier to manage than digitized IPs. If I paint you a landscape and sell to you, no one else would a copy of the landscape, except you. By the way, that’s a P2P (peer-to-peer) transaction, they are facilitated without a middle-man. Where the problem arises is when we go digital. Let’s assume I take a photograph of a beautiful sunset with my digital camera and sell to you. Since it’s a digital photograph, there is no guarantee I won’t sell the same sunset photograph to another, or even upload online for millions to download. Wouldn’t it be amazing to have a solution where, when I send you the digital sunset photograph, I will no longer have a copy, but you will. To solve this “double spending” problem for digital assets (including and especially money), the blockchain was born. From the above, we can connect the dots to a two-sided approach to blockchain and IP. On the one side of the coin, innovations involving blockchain-based solutions can be protected under IP. On the other side of the coin, IP can be better protected using the fundamental features of blockchain like time-stamping, transparency and immutability.
What is Blockchain?
First things first, bitcoin is not synonymous to blockchain. Blockchain is like electricity, bitcoin is like a bulb. Blockchain is to bitcoin what electricity is to a bulb. Without the blockchain, there would be no bitcoin. And, just like lightning bulbs is not the only thing electricity can be used for, so also, crypto is not the only thing a blockchain can be used for. There are a thousand and one use cases already developed or being developed worldwide.
In simple terms, blockchain is a digital record or a digital database which is replicated on several computers. Data, information and transactions are permanently recorded on the blockchain. It is distributed because the nodes (computers) that make up the blockchain network are scattered around the world. It is decentralized because it is not controlled by any single entity, rather decision s are reached via a consensus algorithm. It is immutable because once new data is entered, it cannot be changed, deleted or altered. It is unhackable, because hacking the blockchain will be an expensive and time-consuming task.
What is IP?
Whether you are reading this on a phone, tablet or PC, the fact is, these devices are all products of human imaginations. You can hold the physical devices, but you cannot hold the imaginations that resulted in their production. Intellectual Property is thus the ownership of human imaginations. To guarantee ownership, these imaginations need to be expressed, either in written words, drawings or artistic forms. It is the expressions that are protected. Thus, even if you have dozens of book ideas like me, you can’t claim copyright, until you actually write a book and publish it. IP is protected under different categories such as patent, trade secrets, copyrights and trademarks.
Here, we will look at how innovations involving blockchain-based solutions can be protected under IP.
When you write a book, no one else can publish the same book in their own name or sell the book without your permission. This is because you own the copyright to your book. Similarly in the tech world, when a software programmer writes codes for an application or whatever, he or she owns the copyright to the code. This means, another cannot simply copy and paste the codes and sell or use it. However, it is possible for the owners of the books or code to make their work freely available for anyone to copy and use for whatever they like, or even to contribute to the work, by adding paragraphs to the book or more lines of code to the software. For books, this is called creative commons, while for software, this is called open source. Blockchain, at least the public/permissionless ones are usually open source. Meaning, anyone can download the software and begin using it, make reviews and suggestions, or even make changes to the software and release as their own work. Satoshi Nakamoto, an unknown entity known as bitcoin founder, made the Bitcoin blockchain codes open source.
Interestingly, even though the first popular DLT (Decentralized Ledger Technology: blockchain) is open source, individuals, corporate entities and governments have all been rushing to patent blockchain-based technologies, most of which are a spin-off from the open source. The financial services industry saw the first application of the blockchain technology. No surprise then that the first set of blockchain related patent filings were made by banks and other financial institutions. Some have been pushing for making all blockchain-related innovations open source. In the alternative, others have suggested creating a patent pool. All in a bid to kick against IP trolls who seem to have found a new vibrant territory. In fact, for this very purpose, the US Chamber of Digital Commerce set up the Blockchain Intellectual Property Council (BIPC) whose sole duty is guiding against blockchain patent trolls.
A patent pool is a consortium formed by at least two industry players who each agree to grant license to other members under a cross-licensing agreement. Cross-licensing means for example, I have a patent for the seat belt, you have for the side mirror. I give you license to use my seat belt in exchange for using your side mirror in building our respective cars. To facilitate growth and development, instead of working in silos, blockchain industry players can create patent pools that allow for cross-licensing of blockchain patents to participants in the pool. Examples of such are the Blockchain Intellectual Property Council (BPIC) and the Open Invention Network (OIN). I will now take a short break before we proceed to analyze the other side of the coin: protecting IP with blockchain.
What informed your decision to study law as a young girl? Have those reasons in anyway changed or modified?
As a young girl, that sounds like eons ago. To be candid, I don’t even know why I read law. I simply picked it because it aligned with my interests then…being literature. On second thought, I also picked it to be rebellious, I always loved traversing the road less travelled. My mom teaches maths, my dad teaches STEM. All my siblings are in science careers. I’m the only odd sheep. Taking the road less traveled is also how I ventured into blockchain law practice.
In Maths we trust
Here, we will consider the ways in which IP can be better protected using the blockchain. This is based on the premise that math is a more reliable oracle. We are now in the digital age where other people’s work can be copied and disseminated to millions with just a click and without the owner’s permission or knowledge. Current Digital Rights Management (DRM) measures have been largely ineffective due to the internet providing the tools for unauthorized infinite reproduction of people’s intellectual property. Blockchain technology will enable creators to directly interact with their fans, track sales and conduct private auctions.
Smart IPRs and IP Registries
Currently, IPRs are recorded in traditional centralized registries, making it vulnerable to issues like tampering, manipulation and a fertile ground for IP trolls to operate. Registering IPRs on a decentralized ledger like the blockchain will instantaneously convert it into a smart IPR, facilitating easy transfer of ownership and licensing. Flowing from the above, such registry would be a smart IP registry. With smart IPRs embedded in smart contracts, the blockchain can be used to ensure real time payments to IP owners and the enforcement of IP agreements. Creators can now have direct access to their audience, without the middlemen labels that milk them dry.
Combination of smart IPRs and smart IP registries means issues regarding first to apply, first to register, first to use in trade and so on, would be things of the past. A transparent record that is time-stamped and immutable would make for easy proof, audit and tracing of the life cycle of an IPR. Time-stamping simply means stamping an entry with the time it was entered. Your messages on WhatsApp for instance are time-stamped.
Digitization of assets on the blockchain, in this case, intellectual property, by assigning a unique string of alphanumeric characters to it, is what tokenization is all about. Tokenizing IPRs would unlock their previously illiquid state, making transfer easy.
Proof of Authorship
As regards Copyright which isn’t necessarily registrable right in most jurisdictions; Blockchain would play a prominent role as evidence in proof of authorship as simply placing such work on the blockchain resolves any controversy before it even arises.
Proof of Originality
Counterfeiting, piracy and unauthorized use are some of the challenges IP owners battle with. This is especially rampant in industries that are IP-sensitive, like manufacturing, supply-chain, pharmaceutical and publishing. By adding elements of scanable RFID tags and storing the data of products on the blockchain, it is possible to verify the authenticity of goods, right from sourcing of raw materials until it gets into the hands of the consumer. This would be of great help to custom officers at the border, retailers and consumers.
With the blockchain, we can now have a digital footprint for IPRs. Technology is constantly advancing, blockchain as we know it today might be different in two, five or ten years time. However, one thing is sure, that as globalization continues to permeate every nook and cranny, we can expect blockchain’s fundamental features of transparency, traceability, time stamping and immutability to be the bedrock of whatever system wins tomorrow. Amidst all these, IPRs will be created and protected.
Question: With your experience in the field of legaltech, how would you advise a young lawyer to carve a niche in blockchain technology?
Follow these steps if you wish to build a career in blockchain;
Learn. Take online courses on blockchain and crypto, there are free and not so expensive ones available.
Build an online presence where you share with other what you’re learning. Inevitably gradually building a reputation as an expert.
Attend and speak at blockchain, crypto and general tech events. Network with others and ask questions where you need clarifications.
Find an opportunity to apply all you have learnt.
Keep up to date by staying on top of the latest happenings.
While this is stated specifically for the blockchain practice area, it can be adopted for any other practice area.
The bottom line is “get known, increase your visibility.” Online and offline. Give value and be visible. I for example, come up first on the list after the ads for “blockchain lawyer Africa.”
Ways to get known;
Endeavour to put out content that is relevant, omnipresent and interesting. Relevant means, if for instance, you have presented yourself to your audience as a real estate lawyer, 90% of content from you should be about real estate. And not Monday cybersecurity, Tuesday abortion laws, Wednesday election petition and so on. Your audience could get confused and have no idea what you should be known for.
That takes us to the omnipresent. Your content should be everywhere. Best way to achieve that is by being consistent. The most obvious benefit of being relevant and omnipresent is TOMA – Top Of Mind Awareness. You are the first person that comes to mind when people think of referrals in that practice area. I’m painfully aware that being consistent is really though, but it gets easy when you have a constant flow of content ideas. Here are ways to get a stream of content ideas;
Searching related hashtags on LinkedIn and Twitter
Also, your content does not necessarily need to be in lengthy forms. Short twitter-like content would do, so far it is something that adds value to your audience. But of course, you should also devote time to long-form pieces.
It is no secret, today’s audience have a very short attention span, to keep them engaged, you have to be interesting. And no, you are not obligated to crack jokes. Passing across your message in simple terms, using every day, familiar analogies is sure to be found interesting. Remember ROI and you will surely see a ROI. By the way, your content could be text, image, audio or video, whichever works for you. You also do not need your own website before you can start putting out content. You can use LinkedIn, Pulse or Medium.
On speaking at events. They do not have to be events solely devoted to your practice area. For instance, in July 2018, I spoke about cybersecurity at the African Women in Tech Conference which held in Nairobi. At the end of the day, there were discussions on cryptography and securing one’s private keys. So, you see, we still came around to my practice area.
Here’s a tip to getting speaking opportunities. I recently gave a colleague this tip and he has reported success trying it out. Search for events that catch your interest online (Eventbrite, Meetup) and offline. Contact the organizers and ask for the opportunity to speak on related legal aspects. Usually, they don’t have such topics on the agenda. And most times, you will get a favourable response. Also, be on the lookout for calls for speakers’ application.
One more thing I would like to mention; learn to program smart contracts. My fascination with smart contracts was how I got involved with blockchain. This led me down the path of taking a programming course (android and java) and other more blockchain-programming-specific courses. A lawyer who can code smart contracts will be indispensable in the nearest future. In fact, for lawyers in the tech niche, we owe our clients the duty to be bilingual, fluent in law and fluent in tech. https://www.law.com/legaltechnews/2018/12/05/mediators-need-to-become-bilingual-to-resolve-smart-contracts/. Even before landing on the smart contracts moon. Once can begin wetting their feet by automating legal documents. My best platform so far is OpenLaw. Please, check them out and play with resources on the site. I recently automated a simple hire purchase agremement.
The big secret of succeeding in blockchain: you have to learn before you can earn.
There are usually two cohorts every year, in February and September. At your successful completion of the course, you will be issued a certificate which will be recorded on the blockchain and verifiable anywhere.
As my last words in this lecture, I would like to address a question many of you might have, most especially young lawyers. Whenever I give this kind of lecture, I get asked in various ways, but same question, usually privately. It goes; “how safe is it to have a career in blockchain?” Here’s my answer: yes, things are uncertain at the moment concerning blockchain and cryptocurrency. However, one thing that is certain is change.
There is no such thing as a safe career for life. It’s all about developing marketable skills that give you a competitive edge. Develop skills that are manifold. Skills that make you valuable in multiple industries, multiple countries and multiple careers. Moreover, I have listed over ten blockchain pairs. You can never go wrong with any of them. So, rather than asking, “is a blockchain career safe?” You should be asking, “how do I future-proof my career?”
Question: Your practice in blockchain technology law seems to be hitch-free because of some flair for science and maths. Is it possible for a lawyer that is poor at this to succeed in the practice?
Let me tell you a secret, I hate maths! But of course, one can learn anything they put out their mind to. What’s important is being determined. Whenever I chat with people, they say Faith, you’re so techy. I laugh. I have spent countless hour watching online courses on different tech related topics, from cyber security, to introduction to computer science, etc. Most times, I understand almost nothing, but in future, I keep seeing references to something I once watched and never understood, and suddenly, I get an epiphany and clarity. So, what I will say is, you can do anything, whether you know maths before or not. Just be determined.
Question: Could you give some materials for further reading on smart contracts and technology licensing?
Sure, I have a google doc of curated links on smart contracts.
Closing remarks: Wishing you all a bright career in law. Exciting things ahead, please position yourself properly!
Image Rights in IP Law: Limits to Product Advertisements
It’s almost a requirement these days for barber’s shops around to have an image of either Obama or Ludacris in or outside their salon. This gets really confusing, especially when you hear that someone like LeBron James is on a 1billion dollar lifetime endorsement deal with Nike, so what unique endorsement are these small corporations running on. In Intellectual property protection, this borders on image rights.
Image rights have been defined as the expression of a personality in the public domain, also as those rights that individuals hold to the representation and commercialization of their persona. As a general rule on image rights, it is accepted that the use of a person’s image to create the false idea of the person’s endorsement, is an infringement on such a person’s image rights, under torts law, this referred to as passing off. In the case of Robyn Rihanna Fenty & Ors v. Arcadia Group Brands Limited & Anor, where the defendants were selling copies of T-shirts with an image of Rihanna on it without getting authorization from the artiste. The court recognized that with regard to the circumstances surrounding the incident, the use of that particular image created a false idea of Rihanna’s endorsement of the product and the court further held in favour of the claimant(Rihanna) as the action was regarded as an act of passing off.
Does this mean that salon beside your house with an image of Nicki Minaj on it’s banner has infringed on her image rights?. Well, let’s see.
One of the first things to be considered is whether or not the person or corporation using the image actually has appropriate rights to use the image. It is worthy of note that the fact that an image is in the public domain, say on Instagram, does not mean the general public has the right to freely use those images. A user needs permission from either Instagram or the owner of the image as the case may require. However, at the same time it is not necessary that a person gets permission from the person represented in the image before the person can be said to have rights to use it. In most cases, the photographer owns the rights to the picture, except where he was hired. An example is in the earlier mentioned case between Rihanna and the fashion retailer. Here, the fashion retailers purchased the picture from a third party photographer who actually had rights to the picture. The court recognized that as regards this, the retailers actually had the required rights to make use of the image.
Another issue to be considered here is whether or not the use of the someone’s picture is to represent the person’s endorsement of the product or brand, where such endorsement does not actually exist. In the case, Jordan v. Jewel Food Inc. the court held that the stores tribute advertisement to Michael Jordan created the idea of an affiliation between the two parties whereas there was none, this was regarded as an infringement on his rights.
Furthermore, laws of the US provide for the Right of Publicity. The Right of Publicity is the right of an individual to control the commercial use of his/her identity by preventing unauthorized commercial use by other parties. This right prevents unauthorized persons from making profit off the identity of another. In the earlier mentioned case between Michael Jordan and Jewel Food Inc. the court held that the tribute ad formed commercial speech i.e. it was meant to promote the brand, thus helping to improve their profits using the athlete’s reputation. Where the image or representation does not have commercial benefit attached, it can be permitted through the fair use doctrine, where it meets the requirements.
Presently in Nigeria, there aren’t many laws on the protection of image rights, however, Section 37 of the 1999 Constitution(as amended), provides for the Right to Privacy. Asides this, where Nigerian statutes and case laws fail to adequately provide rules on issues like image rights, Courts in Nigeria could apply case laws from other jurisdictions like Britain on deciding such cases.
The question on whether that small business beside your house is legally permitted to use that celebrity’s image on it’s poster, depends firstly on whether or not they have the required ownership rights or license to use the image. Then, does the use of that person’s image project the person’s endorsement which would boost the corporation’s commercial gain. It is at the discretion of the court to determine whether a barbing salon using Obama’s image on it’s poster is falsely implying his endorsement for their commercial gain.
When next you see that startup business in your area designing a wonderful poster with Naira Marley’s face in the middle, you might want to ask whether they have the required rights to make use of that picture.
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: //www.linkedin.com/in/oluwasegun-samuel-a784b8179
What’s the probability that your screenshots aren’t an Infringement on Copyright?
Maybe ½. Remember Probability in math? Alright. In a class of 10, 5 students took screenshots of website pages, 2 of movies, 1 of a video game and another of a blog post. What is the probability that a screenshot picked at random does not violate copyright? Easy peasy, but I won’t answer it (winks). And not to worry, we aren’t having a math test. Let’s delve into screenshots (also called screen grabs) and copyright for a bit.
Screenshots are so common and so helpful. Still, imagine getting sued for the last one you took on your device. Anyway, let’s paint a scenario: Williams is a photographer and he has just posted a picture he took. An admirer of his work screenshots the picture and posts it on social media. He should probably be happy his work is gaining traction right? He is (well, consider also that he might be a big time photographer that makes big bucks from every shot) . Plus, don’t forget he has a copyright over that picture. So you can’t always assume that a copyright holder would not object to your use of a screenshot. That goes for various contents we find on the Internet, not just pictures. But before you think this whole copyright thing is getting extreme, it isn’t that deep.
On the use of screenshots, as with various other uses of copyrighted materials, there is a thin line between copyright Infringement and fair use. That’s right, the doctrine of fair use is what saves most of us, but it is so far-reaching that it has been described as “one of the most unsettling areas of law”. Thus, there is no one-size-fits-all kind of principle on this, Courts have to decide each case on its own merit. Whether or not one’s use of a screenshot is an Infringement depends on how much it can come under the umbrella of fair use. Fair dealing, same as fair use, is recognized as an exception to Infringement in section 5 of the Copyright Act. The exceptions that come under Fair Use are set out in the 2nd schedule of the Act. Unfortunately, the Act does not define fair dealing, nor does it set out guidelines to determine what fair dealing is.
There are four factors to consider in order to determine fair use, as provided by section 107 of the Copyright Act of the U.S: 1)Purpose and character of use; 2)The nature of copyrighted work; 3)The amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4)The effect of the use upon potential market for or value of the copyrighted work
For the first factor, if the purpose for reproducing the copyrighted work — in this case, as a screenshot — is for education, research, news reporting, scholarship, criticism and comment, it would pass. This probably covers most blogs, news outlets, personal websites, school materials. As to the nature of copyrighted work, it’s pertinent to consider how original and creative the work is. If the work leans towards being more factual than creative, fair use might avail. On the third factor, there is no defined rule as to the maximum content of a work that can be copied. If a work is 2,000 pages, and one reproduces a paragraph, it’s probably not an Infringement. If the work is just a paragraph and it is reproduced in its entirety, that’s more likely to be an Infringement. For screenshots, highlighting a part of the whole or transforming it would probably pass as fair use. The fourth factor, which is probably the most important, has to do with money! If you’re making money from or using the screenshot commercially, the umbrella of fair use will more readily be blown away. If you’re affecting the revenue or in any way tampering with the pecuniary interests of the rights holder, a defense of fair use will most likely not avail you. So, for instance, if you’re not affecting Williams’ money, he might not come after you.
Don’t get too comfortable though! Because the content of a screenshot is copyrighted, making a screenshot of it means reproducing it. Again, remember, copyright gives the holder exclusive rights to authorize its publication, distribution, usage, reproduction, performance and preparation of derivative works from the original. So, technically, making a screenshot would probably amount to an Infringement regardless of what it’s used for. Way out? Ask for permission… where you can. Some sites put up contact information for getting such permission. Others tell you the extent to which you can go with the copyrighted material. For instance, Oracle’s official website specifies the limits to the use of screenshots derived from their content/work.
Now you know that if you’re making a screenshot of any content – say movie, picture, game, write up, website, anything at all – for personal use without sharing it, generally, no one will come after you. Also sharing it in such a manner that does not affect the revenue (most importantly) of the Copyright owner will probably not attract raised eyebrows, takedowns or a law suit. Nevertheless, the act of taking a screenshot at all, can by all means be deemed an Infringement. Using screenshots for commercial purposes without due permission will definitely leave a whole lot of suits in your trail, with the doctrine of fair use proving to be a feeble defense in that regard.
Quick question. Where do you think a tailor who screenshots outfit styles, sews them and makes money from it falls?
The Intersection between Intellectual Property protection and the Anti-Hate Speech Bill
The debate about the Anti-Hate speech bill is one of the most controversial topics in Nigeria in recent times. The bill, which has garnered a lot of negative criticisms due to its provisions which seek to put a limit on the fundamental freedom of expression as enshrined in the Nigerian Constitution has been shelved again for the second time within a year as at November 2019. The backlash essentially sprouts from the restriction that would be placed on the freedom of the Nigerian populace to express their opinions from the fear that such an exercise might be deemed hateful by some people. The bill is also believed to be a means of clamping down on the propagation of ideas, opinions and information, thereby affecting the rights of citizens to enjoy the freedom to produce, protect and distribute intellectual works such as literature, paintings, music amongst others. From the lens of an Intellectual Property Rights enthusiast, here are the intersection between Intellectual Property protection and the Anti-Hate Speech bill.
To start with, the bill defines hate speech as when a person “uses, publishes, presents, produces, plays, provided, distributes and/or directs the performance of any material, written and or visual which is threatening, abusive or insulting or involves the use of threatening, abusive or insulting words or behaviour commits an offence if such person intends thereby to stir up ethnic hatred, or having regard to all the circumstances, ethnic hatred is likely to be stirred up against any person or person from such an ethnic group in Nigeria”. With this definition in mind, it can be derived that the bill becomes contradictory to the Constitution of the Federal Republic of Nigeria which provides in section 39(10) that, “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference”.
In essence, the bill will clamp down on the freedom of people to express, protect and distribute their ideas as a seemingly innocent work by a Yoruba author who innocently writes about his opinion on the perceived Igbos’ love for money might land such author a jail term if such work is reported for hate. With the fear of prosecution in mind, the populace will fear expressing ideas that may be deemed hateful and thus put a restraint on how people express themselves. This will consecutively affect the world of intellectual property rights as works that have been criminalised cannot be protected under the same judicial system. The copyright of holders would be forfeited and trademarking a name, logo or motto that can be tagged as festering hate will become difficult, thereby leaving such work open for exploitation.
Apart from hindering intellectual property rights owners and holders from enjoying their works, the anti-hate speech bill, through its provisions also seek to make criminals out of those intellectual property rights holders. The situation becomes dicey in the court of law as the words of the bill are ambiguous and open to several meanings. This confers the power on the court to determine what constitutes “threatening, abusive or insulting” material as well as the extent to which such person would be punished if found guilty; bearing in mind that the severity of punishment under the bill range from fines of up to ₦10 million to life imprisonment and death by hanging for works that cause the death of another.
At this point, it is pertinent that the pros and cons of this bill are carefully examined before the bill is passed into law as it can be used as an instrument of witch-hunting and persecution. Section 5(2) of the bill allows for the perception of the person harassed to be factored into the case while determining whether conduct is offensive. This subjectivity among other examples sprinkled throughout the bill is too dangerous for a bill that seeks to limit a fundamental aspect of human lives; freedom of expression.
Moreover, apart from imposing a restraint on the right to express ones’ self, the anti-hate speech bill will also affect some other fundamental human rights which are closely knitted with intellectual property rights such as the right to private and family life as enshrined in section 37 of the Constitution of the Federal Republic of Nigeria which states, “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected”. The anti-hate speech bill will infringe on such right as the correspondence of ideas between two individuals, say an author and an editor or publisher, might be used as evidence against the parties if such idea(s) is reported as hate speech.
Thus, the anti-hate speech bill is a potentially dangerous tool against the protection of intellectual property rights as well as a likely instrument of terrorism against critics and opponents of government as it is a normal occurrence in Nigeria to see people pen down articles or make cartoons/animations to express their grievances against the government. Such instances include works decrying the actions of the government appointing people from a section of the country to occupy top positions in the administration of the country. It also includes works produced to condemn the ills of an ethnic group or religious sect against other groups in the country. Such group or sect could report the creator of such work at the National Commission for the Prohibition of Hate Speech and institute an action against a copyrighted work.
On another note, the bill could serve a positive purpose as it would ensure that people do not misuse the power of the pen and other means of information communication to persecute other people and spread hate. The provision of the bill will ensure that intellectual works are scrutinised before the creator of such could protect and benefit from a piece that can be harmful to others. This is, however, a double-edged sword as there is the possibility of a more strenuous means of registering intellectual properties as such works have to be checked against hate speech and more.
In conclusion, the essence of the National Commission for the Prohibition of Hate Speech Bill (the anti-hate speech bill) is questionable primarily on the basis that the bill has no provision to solve any real problem in Nigeria. Also, there are several laws already in place to cater for many of the offences the bill seeks to address and these laws include the Cyber Crimes Act and the Anti-Terrorism Act. Both laws are already being used to infringe on Nigerians’ freedom of expression. A new one will only make the noose of the authorities tighter on prospective opponents; therefore, before the anti-hate speech bill is passed into law, Nigerians must ensure that all the necessaries are done such as total compliance with Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR)
Yusuf Aisha Olabisi is a 200 level law student of University of Ibadan. She has interest in Intellectual Property, Technology and Medical law. She enjoys all forms of art.
Intellectual Property VS. Football: Mapping out the Intersection
Seven years ago, a classmate went home with a badly torn shirt because he called me the son of a goat. Fast forward to 2020, everyone is struggling to outclass contemporaries, to be called GOATS. Did I hear you say irony? Indeed! The debate on who’s who among footballers is way amusing. Today, I descend into the arena, with my Greatest of All Time. His name is… Ronaldo.
Ronaldo de Assis Moreira! Sorry to burst your bubbles if that sounded strange. You could refer to him as Ronaldinho Gaucho, for convenience purposes. Ronaldinho is famous for having won all the most important trophies a footballer can dream of, including clinching the Champions League trophy once and the Balon D’or twice. He is also a one time World Cup winner (Messi and CR7 fans cannot relate, can they?)
Beyond doubt, Ronaldinho’s life and career is a fitting topic for a class on Intellectual Property. This is notwithstanding that Messi has 76 registered trademarks including his name which was registered in 2011 – I hate to admit but Messi may be more of a Goat than his contemporaries in this regard, especially with the beards. Gosh! The blonde beards.
Coming back to our discourse, in 2004, Ronaldinho secured the trademark right to the domain www.ronaldinhogaucho.com subsequent to a WIPO decision (Disclaimer: The website ran down with Ronaldinho’s European career, sadly). During his sunshine moments, Ronaldinho was an “ambassador” for several companies including Nike, Pepsi, Coca-Cola, Gatorade, and EA Sports. Particularly, in 2006, he earned over $19million from endorsements only. For this Soccer-Intellectual Property class, we will refer to such deals as Branding, an important aspect of trademarks.
Moving forward, Ronaldinho’s skills as a footballer cannot and should not be overlooked, today nor in centuries to come. Most notable of the skills traceable to him is The Ronaldinho Gaucho Elastico aka Snakebite (Entertain yourself a little with a snippet of Ronaldinho performing the Elastico in a world-class style: https://youtu.be/w3Wptt0v29w/). While there are claims that the skill may also be traced to Rivelino and Zidane, Ronaldinho popularized the skill. The question now is, can the skill be registered as intellectual property in favour of Ronaldinho, Zidane or Rivelino? Or to broaden the scope, can a soccer skill be registered in favour of its inventor?
For the records, intellectual property rights popularly include copyrights, patents, trade secrets and trademarks. Copyrights and patents are undisputedly out of the discourse seeing they protect only literary/artistic work and technological inventions respectively. Trade secrets too! The snake bite is all over YouTube and can be watched every weekend on streets and mini-stadia in Lagos so it does not rank as a business secret. Does that mean they can be trademarked? Not exactly!
A trademark is any sign, word, design, letter(s), number(s) or shape that may be presented graphically and which distinguishes a good or service from another. This means that an application to register the move as a graphically presented logo will most likely be approved. David Beckham had years ago trademarked his famous Free kick move as a logo.
However, such a move cannot be registered as a skill. This is hinged on the failure of the skill to fulfill the conditions for a trademark: it must be graphically presentable, distinguishable, descriptive and non-derogatory. Moreover, “trade marking” the skill will give the originator the right to use it exclusively. This, you know, is not good for the football we love.
On a final note, skills may be used by any footballer anywhere and while they are necessarily a product of talent, they cannot be protected from exploitation; at the very best, moral rights in terms of ascribing the skill to its originator. On the flip side, name initials and jersey numbers like CR7, NJR can and have been trademarked. Graphically represented Celebration styles can also be protected and leading this trend is Jesse Lingard with his JLINGZ celebration style. These and many more tell us that the aim of IP in football is to serve as a medium for expansion and not unnecessary restriction.
A case for Intellectual Property Rights in the Internet of Things
The Internet of Things refers to the interconnection via the internet of computing devices embedded in everyday objects, enabling them to send and receive data. A common example of an Internet of Things is an arrangement of smart lightening, smart speakers as well as smart doorbells that all communicate with each other in order to perform functions automatically with little or no human effort. It is called the internet of things because it has the ability transfer data over a network with zero human input. An Internet of Things (IoT) ecosystem consists of web enabled smart devices that use embedded processors, send and act on the data they acquire from their environments. Now, this entire process involves a cluster of intellectual properties that span from the devices and their designs to the computing software embedded in them. IoT has been rightly described as the next step in the evolution of the internet, well, it probably also follows to describe it as the next step in development of intellectual property law, considering the complexities and challenges it brings to intellectual property as we know it today.
The IoT industry is still very much in the early phase, more so in Nigeria. And just like every budding industry that shows promise, IoT attracts quite a number of patent applications from companies trying to secure a cut in the industry and this causes a problem. You see, in order to successfully operate with other systems, IoT devices from different manufacturers would have to be able to work together using standardized technology (interoperability). With several competitors trying to patent this technology, there is bound to be clash of patents making things quite messy and most likely hampering the growth of IoT. As such, the need to maintain cohabitation between Intellectual Property rights Protection and interoperability is a major concern for the IoT industry.
Furthermore, IoT devices as a matter of necessity must capture data in order to carry out their functions, and this data is often enormous and managed by databases. The organizational structure of these databases can typically be protected through copyright in Nigeria, to the extent that they are original. The content of the database can also be protected through the database sui generis right awarded to the database maker (that is, the person who shows that there has been qualitatively and/or quantitatively a substantial investment in either the obtaining verification or presentation of the content). The data sui generis right is however not recognized in Nigeria and therefore cannot be enjoyed.
The software in an IoT device is also an object of intellectual property protection and this can be done through copyrights; copyright here protects the exact codes used in making a software program to ensure that they are not imitated. However, copyright is a narrow protection in terms of software as it will not suffice as sufficient protection if an entirely different code is used to make a software that performs the exact same function the protected software was designed to perform. As such, in some cases, a software patent might be considered a better option as it protects the utility of the said software.
In addition, if anything has been learnt from the smartphone industry, it is the importance of design protection. Moving away from the functionality of IoT devices, their appearances are also intellectual properties of great importance to their various brands. Thus, the overall physical appearances of these devices can be protected through the use of design patents.
Finally, technology keeps developing at a fast pace and in order to keep up, intellectual property laws must be flexible enough to match this development. It is thus necessary that IP law in Nigeria is constantly reviewed in order to avoid the inapplicability of laws to developing IP issues as can be seen in the case of the IoT industry.
The IP sector is heavily related with other sectors such as Technology and Economy, which are all sectors that are not static and fast paced. Probably as a result of these affiliations or due to the fact that IP itself is based on innovations, the world of IP constantly changing. So as an IP enthusiast, you need to keep abreast of what is going on in the sector. I am going to be telling you about 5 things I feel you should be aware of right now in this fast paced world.
1)E-commerce as a solution to counterfeits: Counterfeits are the worst! Just bad business to be honest. I feel like every established brand’s worst nightmare is a counterfeit product making use of their brand and flooding the market with these counterfeit goods. Not only does it destroy goodwill, it also drives down the price of the product. How? By flooding. This is a situation whereby the supply of goods is more than its demand and at lower costs too.
So what are we doing about counterfeits? I mean, they really are a menace. It seems now that e-commerce is proving to be a very good and feasible solution to counterfeiting problems. We now have brands and e-commerce platforms working together to prevent the sale of counterfeit goods. Amazon, for instance, has created a way to remove counterfeits of a registered trademark globally in seconds! That’s just amazing!! It is hoped that this will be replicated in a physical market.
2) China is re-branding its image: We know what we all think when we see a product that reads ‘Made in China’: that it’s most probably something counterfeit or sub-standard. Certainly, over a long period of time, this has been the case. China is very well known for exporting products that violate the IPR’s of other parties. And up until recently they still faced heavy sanctions from the Trump-led Administration.
However, you should know that China has heavily invested in and is constantly developing its IP infrastructure, which is very laudable as it is one of the largest markets in the world. The country now has up to three specialist IP courts and has developed a customs system that prevents the exportation of counterfeit goods. So go ahead, don’t be scared to buy that ‘made in China’ product.
3) Commercial Licensing is the future in Tech: Early in the year, it was a scramble for wireless technology and why not? Wireless Tech is what we all want. Nobody wants to have to sit next to a socket for three hours just because they want to charge their phones. Companies were in a rat-race to develop and patent new wireless tech. There was talk of 5G wireless networks, and no doubt in better climes, people already use some of this tech.
We do however need to take a step back and re-focus. Of course patents are good and nice, but the goal is not to create a monopoly. What patents do are that they are meant to serve as a form of incentive to innovators. We still need to aim at providing a free market where all players can operate. Imagine an ocean where 70% of the ships are crewless and transporting cargo. It would be most unfair if all of these ships are produced by the same company just because that company is the only one with rights to make use of the technology.
Commercial licensing still provides revenue for the innovator. In fact, there are now companies that do not produce anything but just develop new innovations and license them out. Encourage licensing without any form of bias today!
4) Block chain: Everyone is talking about blockchain. It’s the perfect way to store digital information. Blockchain could store information about copyrights telling you when it was created, and who the creator is. And so you’re not hindered from using a work because you’re not sure if it still enjoys copyright protection or not. And also, moral rights of an author are forever protected.
A blockchain also helps performance rights agencies secure their clients royalties because the blockchain records every time the work of that client is played and they can easily get paid with a smart contract.
5) Pursue a risk-free approach: Particularly for IP counsels, do not heavily depend on litigation, make sure your IP is well protected and due diligence before any acquisition or registration of IP is very important. Try as much as possible to avoid litigation or any action that could bring about disputes. You sure don’t want to be a victim of global turbulence.
Patents are the part of intellectual property law which protect inventions and innovation. They grant exclusive rights to an invention to the owner of the patent, as a means of promoting human innovation.
Applying to critical areas like medical innovations, the issue of patents is a delicate one. It has been recorded that in the last three decades, medical technologies have improved the treatment of various diseases like HIV, that were previously ‘untreatable’. As a result of the delicate nature of the subject, policy makers have set certain criteria to be met for an invention to be regarded as patentable, in order to truly protect and promote innovation.
It is generally accepted that for an invention to be patentable, firstly, it must be novel. It must be a new innovation, different from whatever might have been before it. In recent times, there has been a rise in devices using wireless charging technology. In 2015, Qualcomm Technology Inc. patented it’s innovation that eliminated an obstacle facing wireless power, as its wireless charging technology for the first time ever was able to work with metal devices.
It is also required that for an innovation to be patented it must be Inventive. Sometimes referred to as non-obvious, it means that it must be a leap forward from whatever was already in existence, being born out of creativity or research. In December 2018, Apple was granted a patent for their development of devices that could transfer power to other devices wirelessly. This was a remarkable advancement from the existing wireless charging technology. Furthermore, for an invention to be patentable, it must be Industrially Applicable, to put it simpler, it must be useful. It is necessary that every patented invention should actually have specific use, solving a particular problem. A common example of an invention that wouldn’t meet this criterion is a perpetual motion machine, and such cannot be patented because it can’t work, hence lacks utility.
On a final note, it has become necessary for there to be regulations guiding issues like patents, because for there to a constant flow of innovation in a society, then rights to the innovation must be protected.