IP Trends

IP Trends

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.

Written By: Joshua Solomon(Research Team)

Tiwa Savage IPTLC

Danny Young v Tiwa Savage, Is there a Copyright Infringement?

Recently YouTube took down one of Africa’s biggest female music stars, Tiwa Savage’s “One” music video after alleged copyright infringement claims by a third party. Danny Young, who is also a musician who was most popular in the late 2000’s has admitted to reporting the said video to YouTube. YouTube is known for their strict measures against promoting any form of Intellectual Property Rights violation and in 2018 introduced a new Copyright match tool to stop plagiarism.

Earlier in November 2018, when Tiwa Savage had first released ‘One’, Danny Young had publicly accused her of lifting ‘vital parts’ -which happen to be only a line or two- off his 2008 hit single Oju Ti Won. Danny Young also claims that his lawyers reached out to Tiwa Savage’s lawyers but they were ignored. He also claims that he is ready to file a Copyright Infringement Suite against Tiwa Savage to stop her from profiting off what is originally his.

On his song, “Oju Ti Won”, Danny Young sings in Yoruba:
             “Odun odun lanri orogbo, odun odun lanri awusa. Odun odun lanri omo obi Lori igba My life don better”
While Tiwa Savage on “One” sings:
            “Ododun la ro ro gbo, Ododun la ra wusa. Ododun la ro mo bi lori gba My life don better”

“Odun odun lanri orogbo, odun odun lanri awusa. Odun odun lanri omo obi Lori igba My life don better”

Has there been a copyright infringement??

  1. Copyright protects the expression of artistic and literary creativity giving the owner exclusive right to use the work and authorize others to use it.
  2. Under S.1 of the Copyright Act, Cap C28 Laws of the Federation of Nigeria, 2004, for a work to be eligible for copyright, sufficient effort must have been put into the work to give it an original character and the work would have to have been fixed in a definite medium of expression from which it can be reproduced.
    Originality here therefore infer that sufficient skill and effort must have been spent on the work to give it a distinct character. Fixation means the work has been put in a particular form of expression from which it can be perceived, reproduced or communicated.
  3. This raises two issues
    A. Whether a substantial part of Danny Young’s work can be found in Tiwa’s song so as to appear to be a copy of it.

B. Whether the line in question fits the requirement of Originality.

On the first issue, the mere alteration of a work alone does not excuse copyright infringement. Under Section 6(2) and Section 15 of the Nigerian Copyright Act, there must have been a copying of the whole or substantial part of a work to result in copyright infringement.
This, Copyright Law protects lyrics so far its substantial, unique and creative.
Comparing the lyrics of both songs show they say the same thing.

The main issue however is the second issue. Are the lyrics unique enough to be protected by Copyright law?

It is important to note that majority of the similarity of the two songs is made up of a very popular and old Yoruba saying or proverb.

After Danny Young first accused Tiwa Savage of lifting his lyrics, he faced a lot of backlash for claiming ownership of a popular Yoruba adage, but Danny Young claims that he went through sufficient effort to add a few more words and rhythm to the proverb.
 
The fact that the lyrics are a well used proverb makes them not available for Copyright protection. Based on Section 1 of the Copyright Act, the addition of “my life don better” doesn’t prove creativity, originality or uniqueness.

Thus, while Tiwa May have copied the lyrics , they do not meet Copyright protection requirement. This is similar to the Taylor Swift 2014 case involving her single “Shake it Off”. She sang the phrase,
“the players gonna play, play, play, play, play, and the haters gonna hate, hate, hate, hate, hate” and the plaintiffs sang “players, they gonna play, and haters, they gonna hate”. In assessing the case, the federal judge noted that the lyrics were largely a slang and it was an unoriginal slang.

FACEBOOK SUES BLACKBERRY OVER PATENT INFRINGEMENT

The popular social media platform, has sued BlackBerry for an alleged patent infringement. Facebook claims, in its complaint, filed in San Francisco federal court, that BlackBerry is infringing on several patented processes and technologies surrounding voice messaging, how a mobile device delivers graphics, and the tracking and analysis of GPS data. In total, Facebook is asking for unspecified damages for infringement of six patents.

A patent infringement is a limited monopoly granted to an inventor by the federal government for his or her invention. A patent gives the patent owner (or “patentee”) the right to exclude others from using his patented invention without his or her permission. If a patent is infringed, the patentee may sue for relief in the appropriate Federal court. The patentee may ask the court for an injunction to prevent the continuation of the infringement and may also ask the court for an award of damages because of the infringement. In such an infringement suit, the defendant may raise the question of the validity of the patent, which is then decided by the court. The defendant may also aver that what is being done does not constitute infringement.

In the complaint, Facebook claims that the infringements have “caused and will continue to cause damage” to the company’s Messenger and WhatsApp messaging apps.

It is important, and quite humorous to note that this is coming just months (March 2018 precisely) after BlackBerry sued Facebook for infringing on BlackBerry messaging app patents. The core of BlackBerry’s complaint, which is a sprawling 117 pages, is that the company’s proprietary and patent-protected messaging product, BlackBerry Messenger, known colloquially as BBM, was a cornerstone of modern mobile communications. Basically, BlackBerry claimed Facebook made unauthorised use of its technology in its own instant messenger service, Facebook Messenger, and in WhatsApp Messenger and Instagram.

However, in the present, Facebook has cited infringement of patented technology that improves how a mobile device delivers graphics, video and audio and another that centralises tracking and analysis of GPS data.
Some of these patents include, inter alia

US Patent No. 8,429,231 (acquired from AOL)

Systems and techniques for transferring electronic data include enabling instant messaging communication between a sender an at least one recipient through an instant messaging host.

US Patent No. 7,567,575 (acquired from AT&T)

A method for providing multimedia data from at least one controllable multimedia source to a mobile device includes providing a request path from the mobile device to a mobile service platform, receiving a request from the mobile device, obtaining a device profile from the mobile device, authenticating the identity of a user of the mobile device, and determining a user profile in response to the user identity.

The direction of this lawsuit, and the earlier lawsuit is yet to be determined, but an intelligent guess is that Facebook’s lawsuit against BlackBerry will be brought down if BlackBerry pulls down its suit against Facebook.

REFERENCES.
www.theregister.co.uk
www.smithhopen.com
www.industryweek.com
www.irishtimes.com
Www.techcrunch.com
www.theverge.com

Joshua Faleti is a 400 Level Law student at the University of Ibadan. He’s passionate about Intellectual Property and Space Law