Abstract: This work examined the legal impacts of the emerging digital age on copyright protection in Nigeria with a view to suggesting ways forward. A cursory look at the level of technological advancement will reveal that new technologies are pushing the older ones into extinction,which has been witnessed in every sphere of human endeavor. It is observed that unauthorized users are assailing protected work with impunity, hence no corresponding legal sophistication to keep to the pace of the advancement in Nigeria. This work adopted a descriptive and analytical design of which reliance was placed on primary and secondary data. It has equally exposed the inadequacies of the extant copyright law in Nigeria with a view to determining if the present legal regime can effectively address the emerging issues accompanying the emerging digital age. It is revealed that the Nigerian government has refused to pay deserved attention to its creative industry which has adverse implication on the economy because aspiring creators will always look up to incentives.

Keywords: Digital age; copyright protection; Digitalization; Copyright regime; infringement

Garner (2009, p. 361) defines Copyright as an intangible incorporeal right granted by statute to the author or originator of certain literary or artistic productions whereby he is vested for a limited period with the sole and exclusive privilege of multiplying copies of the same, publishing and selling them.According to Adegoke (2011, p.19) copyright means the exclusive right of ownership conferred on the creator of a copyrighted work. Intellectual property is in two major aspects, the first one is the Industrial property which comprises Trademarks, and Patents and Designs,while the second category is the Copyright.

Digital age is that time when most information is in a digital form especially when compared with the time when computers were not used. There was an epoch known as the stone age that if you must write then you can only write either on the stone or on the wall but later mankind moved to the paper age when you can write on the paper but most recently and suddenly we are today in the highly sophisticated electronics global village. Digital age is a period that is characterized by wide spread use of digital technologies. On the other hands, digitalization refer to the use of equipment principally computers that can accept and interpret digital data and encompasses computer hardware and software, internet or any other machine that has the ability to read works in digital forms (Arpad, 1993, p. 1). Digitalization has made production, circulation of copyright contents very easy by simple clicking of buttons.

The jurisprudence behind intellectual property protection is upon the background that a labourer deserves his wages. It is possible that lives may be lost, injuries sustained and resources expended on the course of creativity which makes it imperatives that originators be made to receive their dividends if creativity must continue. Actually a lot has been done by the present legal regime but little has been achieved. Digitalization has made immense contribution in Intellectual creativity; however it has also increased intellectual property vulnerability to a lot of digital abuses.

The present legal and regulatory mechanisms in Nigeria have been disorganized by digitalization and the need to catch up with the pace of technological growth becomes imperative. If these gaps are not bridged the economy will be adversely affected because the zeal to create will be on the decline as the originators may not be certain that the resources and energy expended in fixing their works will be recouped.

Indigenous literatures on copyright in Nigeria are very scanty unlike in developed countries which informed the observation made by Niki Tobi, Justice of the Supreme Court of the Federal Republic of Nigeria as he then was in the case of Ferodo Ltd v Ibeto Industries Ltd (2004) where he opined that case laws relating to copyright in Nigeria are counted by the fingers, however some relevant foreign and indigenous works were reviewed in this work.

Faga and Ngozi (2011, p.16-18) in their article wrote that Nigeria copyright Act contains a lot of contradictions. They were of the view that the obsolescence nature of the Act contributed majorly to the failure of the present Nigeria Copyright System because according to them this present copyright regime has not done enough in addressing the contemporary digital challenges and so on. The same ambiguity accounted for the reason why digital technology was not expressly mentioned anywhere in the present Nigeria Copyright Act apart from inference that one could draw from the Act. They held further that the skeletal nature, manifest ambiguities and contradictions contained in the Act accounted for the inadequacies of protecting digital innovations under the present copyright regime.

Longe (2006, p.11-12) held the view that the radical shift in the ability to produce and distribute digital contents has led to gross copyright abuses by infringers. He maintained that the consumption of various digital products depends on a complex and sometimes conflicting elements of law, public policy, economics and technology which must be kept relatively in a balance in the light of today’s accelerating digitalization.

Adegoke maintained that actually Nigeria has a legal framework but there is a problem with the enforcement mechanisms despite their active participation in international arena. He also attributed some of the lapses to over dependency on colonial developed models without considerable variation (Adegoke, 2011 p.19)

Besek (2004, P.4) opined that no technological protective method could be effective in the absence of a serious legal sanction against circumvention because the technological able must definitely brake whatever technological protective method (TPM) you might use and such tools will definitely be distributed to the nations with less technological sophistication

The European community (EC) Software Directive, (OJL 122,17th MAY, 1991 Software Directive) on the legal protection of computer software held the view that differences in legal protections measures will not help matters. They envisaged that such differences in legal protection would be detrimental to the smooth functioning of the internet market. It was consequent upon the above position that the union harmonized the copyright laws of their members, overses issues such as, the requirements for originality, ownership, exceptions, and exclusive rights available to right holders.

Cristiano (2015, p.167) in his article stressed the need to strike a balance between copyright owners and users that have continued to create problems which must be addressed. He aligned himself with the medieval wisdom that it is necessary to stand on giants shoulder to make knowledge. This paper agrees with the writer because the trade-off between extreme exclusivity of rights and generation of technological knowledge had been a long standing controversy. Reconcilling the two conflicting issues is alwas a serious problem confronting intellectual property protection in general.

It was the printers that sensitize the need for copyright protection considering the speed with which information were circulated through the printing machines during that period (Sola, 1983, p.15). The first world known copyright Statute was the Statutes of Anne of England. It came into force in 1710 and titled “An Act for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies during the time therein mentioned” The statutes of Anne accorded publishers of books with legal protection for the period of 21 years. The Act did not conferred protection on any other work other than literary and artistic work because of the fact that it was only literary and artistic work that was recognized as protectable under the copyright law then.

Before the 1710 Statute, the only recognized copyright resemblance on Earth was the early “privileges and monopolies” principles which were accorded to printers of books in both England and France respectively. Copyright was then known as ‘privilege’ in England and called “monopoly” in France. History has it that prior to the invention of the printing machines; the only means to copy a written work was by manual copying. The major concern of copyright then was particularly books unlike today that copyright has covered vast areas such as cinematograph, broadcast, sound recording. Privilege in England secured only two years’ protection. During that time, they do not grant that their privilege to all these categories of works that copyright protects today but privilege was granted to those that discover some essential commodities like salt, wines, and so on to enjoy exclusive ownership for the period of two years only.

After the expiration of the first 21years protection conferred by the first copyright Statute which is the Statute of Anne; copyright protection came under serious problem ranging from who will take over the ownership of all those works that had lost its protection as a result of the expiration of the rights conferred to them by the statutes of Anne. There were a lot of copyright cases in England as at then in respect of the protected books that had lost its protection which consequently fell into public domain such as Midwinter Vs. Hamilton (1743-174) and so on. Lord Camdein also at that period gave a note of warning to the Lords to the effect that “Knowledge and science are not supposed to be bound in a web chain simply to ensure that copyright owners reap the dividends of their works, meaning that the progress of creativity should be prioritized over copyright ownership (Deazley, 2006, p.14).

Later in 1911 another copyright Act emerged to replace its predecessors in England. Nigeria continued to be regulated by the English Act of 1911 and the Common Law of England till the emergence of the first indigenous Nigeria Copyright Act in 1970. It was this first indigenous copyright law in Nigeria that overturned and repealed the English Act of 1911 though a military degree which expressly provided that rules of common law dealing with copyright has been repealed in so far as they are applied to Nigeria. The Nigeria copyright Act of 1988 replaced the copyright Act of 1970. The 1988 copyright Act was marred with series of amendments within few years of its emergence. It witnessed its first amendment in 1992 and secondly after seven years in 1999, till the current copyright Act known as the Nigeria Copyright Act Cap C28 (LFN) 2004.

In the International level the first copyright treaty was the Berne Convention of 1886, which recognized and conferred protection to only authors of literary and artistic work, In one of the conferences to revise the Berne convention precisely the Brussel conference of 1948 three stake holders, the producers of sound recording, performers, and broadcasters agitated for a copyright protection of their works under the Berne convention. At the end of their struggle they were not successful because there was confusion then as to whether any of these groups could be regarded as an author of a literary work or an artistic work. The reason was because the only recognized areas of copyright that had secured protection at that period were literary and artistic work.

2.2 The Negative Impacts of the Emerging Digital Age on Copyright Protection in Nigeria

Digital innovation has led to the presence of some electronics such as printers, photocopiers, cameras that has changed the landscape of virtually every thing in Nigeria. Digital sophistication gave birth to digital convergence which means that now different categories of works and data such as texts, sound, pictures and moving images, which earlier is used to be produced and used independently, can now be compiled in one single medium of fixation such as CD and DVD (Oyewumni , 2011, p. 81). In the early 90 phone calls are only available in the cities after very long queue but today mobile phones has made available many platforms that can enable one communicate, send SMS messages, use the internet to access mails, facebook pages, twitter accounts and so on. With some smart phones whatsapp applications can enable you present these messages in diverse forms and distribute them to as many recipients as possible especially in a wifi enabled environment. Therefore, reception and re-distribution of messages and information has become easier than ever before as a result the availability of all these platforms. It is ironic that these innovations that were designed to benefit mankind are threatening the very purpose of its existence.

This software facilitates the direct transfer of file between or among individual users. There are many softwares available such as cinutella, eDonkey. Circumvention of restricted work via this software is very easy and very difficult to control or apprehend the infringers because this direct transfer from one individual to the other must have bypassed the central servers which would have been the first point of check. Where those files that are being transferred cannot be verified then infringing copies could be shared through this medium. Analyzing issues surrounding such circumstances it is obvious that in a normal internet transaction, a user will first connect to the internet with a website to access information or transact business. In computer transactions the consumer is considered the “client” and the computer that hosts the web page is the server however in peer to peer distribution network the information available for access does not reside on a central server but goes directly from individual to another thereby bypassing every available points of regulation Goldwyn-Mayer Studio Inc vs Grokstar Ltd (2004) Therefore the existence of the peer to peer sharing software increases the vulnerability of restricted works to digital piracy

Our present copyright Act did not expressly make any imposition of crime on any other person other than a direct infringer. The term service provider means a provider of online services or network access, or the operator of facilities and includes an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received. Under our present copyright system, some of the internet service providers may knowingly and upon reasonable belief that infringements are taking place, allow and facilitate the exchange of files through uploading and downloading in their systems.

These operators should be made responsible when they detect or have reasonable belief that an infringing copy is hoisted in their system and refuse to remove it. The objective test of reasonability should be used against them to determine their liability. The only likely exception shall be where the service provider is just doing the needful that should be done to facilitate the functioning of the internet.

In one of the U.S. case of Sega Enterprises Ltd.Vs Maphia (1986) liability was imposed on parties that were not directly infringers but the roles they played in carrying into effect the act of the infringement were considered and they were held liable. Such decision stems from the principle that one who directly contributes to another’s infringement should be held liable. In Sega’s case, Mr. Sherman who is a service operator knows that those operating his BBS were carrying out copyright infringement and did not take any action to discourage it rather he was helping the infringers in copying a restricted video game files and consequently he was held in a contributory liability. The same issue came up for determination in the case of Fonovisa Inc Vs Cherry Auction Inc. The U.S. Supreme Court in 2005 in MGM v. Grokste (2005) considered whether the operators of file-sharing networks could be held indirectly liable upon distribution of copyright protected works to users on their online services. Notwithstanding the potential non infringing uses of such services, it was held that one who distributes a device with the object of promoting it’s use to infringe on copyright as shown by clear expression or other affirmative steps taken to foster infringement is liable for the resulting acts of infringement by third parties.

There is need to develop easy legal and regulatory mechanisms to handle the insensitivities and some adventurous unscrupulous commercial activities of some Internet service providers (ISPs) in Nigeria. The story is the same in our telecoms service providers where the service operators will deduct from you and fail to deliver such as in delayed calls ,non delivery of written massages, fraudulent high tariffs plans, sales promotions that have not been subscribed for thereby, leaving the victims with either facing the rigorous processes of enforcement or forget about it. For there to be a valid contractual relationship between two parties, there must be an offer, acceptance, consideration and meeting of the minds of both parties.This paper argued that telecom service operators simply make offer on the one part and accept on behalf of the other party. They only left the offeree with the option of either remaining in the already concluded contract or opt out, the literacy level of their targeted costumers notwithstanding.Some of their costumers are at the mercy of these service operators and needed to be addressed.

5. Content Platform Owners are Encouraging Unauthorized Share of Restricted Works

It is very clear that content platform owners cherish the sharing of information in their platforms under the pretence of simply promoting free flow of knowledge and ideas. The protest carried out by Wikipedia in March 2019 is a clear indication that content platform owners have some skeletons on their cupboards as it relates to facilitating online infringement. Benwodecki On 21^st March 2019 reported that several Wikipedia’s European websites were shut down for 24 hours to protest against the new European Union’s copyright directive which is expected to be approved by the European parliament in the next one week. The version of the Wikipedia websites that were affected includes the German version, Danish, Czech and Slovak. The said directives were contained in Article II and 13 of the said (EU) directive to the effect that content platforms and apps like “You tube”, “facebook”, twitter and so on shall henceforth require holders to obtain a license before they can post materials in the internet.

The said Article requires a license to enable any of the content platforms owners to post even the simplest stories. Wikipedia argued that such directive if allowed could undermine and significantly affect the freedom of expression, press and art. They argued further that they will create a situation whereby knowledge flow will be disturbed.The United Nation Human Right Expert David Kape also warned that these articles will force internet platforms into monitoring and restricting users’ generated contents even at the point of upload. He opined that pre-publication filtering is needless as it is neither necessary nor proportionate response to copyright online infringements.

Another question that comes to the fore is the possibility of all of the content platform owners to afford the installation and maintenance of content filtering technologies because it will be costly. Therefore this paper agrees that content providers have been encouraging unauthorized sharing of some restricted files by users which might be the major reasons why they always fix the social media share button below many of their materials.^.

The internet environment is a very wide business space that could create serious difficulties in policing. Technology now provide marketing and selling devices capable of reaching a considerable number of citizens, consumers and buyers whereby producers can set up electronic shops and information resources for selling of goods. There are electronic shops such as Amazon the online bookshop offering books, CD and others for sales and one can still book for busses or airlines online. There are online auction sites where goods are auctioned to buyers, therefore the development of buying, selling and concluding contract electronically has also open up now challenges to the law (Hector, Charlotte, Graeme and Abbe, 2011). Most of all these electronic shops are not doing any legitimate business because most of the copyright owners of the exhibited works are not aware that their works have been sampled by fraudsters for sale online.

7.1. Passage and Signing into Law of the Draft Nigeria Copyright Bill of 2015:

Serious legislative approach is imperative for a robust creative industry in Nigeria considering the fact that our present Nigeria Copyright Act is moribund. Under the present copyright Act, there is no specific provision made for protection of works in digital form. However, this paper agreed that the Act covered digital innovations from inference drawn from section 1(1), section 7 and section 8 of the Act which conferred protection to innovative products like cinematograph films, sound recording and broadcasting including computer software.

The present Nigeria copyright Act can no longer keep to the pace of the fast growing digitalization. The legislative rational for the Draft Nigeria Copyright Bill of 2015 is like a palliative measure to address the emerging digital age that has revolutionized the creative economy as production and dissemination of creative works became more accessible and became issues of global exploitation beyond national boundaries. The global intellectual property communities have responded to these challenges by adoption of a number of unique solutions, including domestication of international treaties but in Nigeria the need to move upwards from where we stand has been underestimated.

The said Bill can handle the upsurge of digital revolution in Nigeria if signed into law. which is evident from provision of section 44 of the Bill which made provisions as it relates to circumvention of technological protection measures to the effect that

· No person shall circumvent a technological protection measure that effectively protects a work under this Act. Secondly the Act moved further to provide that

· No person shall manufacture, import, sell, offer to the public, provide, or otherwise traffic in any technology, product, service, device, or part thereof, that

a) is primarily designed or produced for the purpose of circumventing or is capable of circumventing protection afforded by a technological measure that effectively protects a work under this Act;

b) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a work under this Act.

As it relates to falsification, alteration or removal of electronic rights management information, the Act provides further that nobody shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement provide copyright management information that is false. Therefore, under the Bill, it is an infringement for one to remove or alter any electronic rights management information without the consent of the copyright owner. It is also an infringement to make an importation, distribution, sale, broadcast or communicate to the public, works or copies of works knowing that its electronic rights management information has been removed or altered without authority, knowing, or having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this Act.

The 2015 Bill also recognized the need to involve the internet service providers in the fight against copyright violation. As it relates to online contents, the Bill made provision for a copyright owner whose work is being infringed online to issue a written notice to the concerned service provider. The notice is a request to the service provider to disable access to any infringing contents or link hoisted in his system.

It is important that a special Intellectual property tribunal that will be composed of experts be established for a more effective adjudication on copyright matters in the face of today’s digital revolution. Therefore the adjudication of copyright matters in Nigeria should be left in the hands of those with requisite expertise. Copyright like other branches of Intellectual property law is a hazy legal concept which is not unconnected to the fact that it is an area of law that regulates intangible property of the mind. Intellectual property rights generally have been beclouded with inherent conceptual complications which make it difficult for mostly non-lawyers to understand.

Even amongst lawyers, some view itas a concept that is purposely to promote the progress of knowledge and learning, others see it as just an idea to protect authors against those that would want to tamper or steal the fruits of their labour. While some of the copyright owners are not well informed about their property rights, some of the copyright infringements occur as a result of ignorance. For instance those websites that you visit, shoots of still pictures that you take from the screen, all belong to someone and as such could make you liable in unauthorized dealings in them.

On considering the nature of Intellectual property protection, Drahos (1996, p. 153) looks at some of the incidences of intellectual property law which derive from the fact that it is regulating the ownership and infringement of what he refers to as “abstract objects. He opined that in Intellectual property cases judges are faced with two major problems, first is identifying the abstract object and drawing a boundary between two abstract objects and in the event of an infringement action, one of the objects is alleged to have overlapped on the other.

The use of technologies in controlling access to copyright works in digital form such as the use of Digital Right Management technologies is discussed here. Digital rights refer to the copyright and related rights over digital contents such as words, sound or visual images streams in digitized form. Meanwhile, there is a lot of digital right management technologies that could be used to track users behaviors in the internet environment. The level of advancement in Digital Right Management technologies (DRM) has moved to the stage that it has the capacity to track the length of time a user might spent online or offline. Therefore the online secrecy of users can not be guaranteed

Encryption system is based on formula whereby a secret key is used to access a message and the secret key is sent from the sender to the recipient securely. The secret key will be used to access the work by authorized users. However some encryption softwares can be weak that it could be decrypted by unauthorized user who might even send or transmit to additional users without authorization except if the work is governed by a sophisticated digital right management (DRM) system.

This software enables content providers to give authorization and control access while ensuring that only subscribed or authorized users can access the contents of their work thereby making the content available after verifications. Therefore if access to a concealed work is managed by content providers whereas the content itself can only be streamed or accessed when authorization is verified then unlawful use of protected work will be minimized. It is submitted that decryption of an encrypted material should be meted with stiffer punishment. It is not arguable that digital management technologies definitely will create a slight privacy threat however, the technology is determined to control proliferation of digital contents and also to ensure that the dividends of creators are secured.

Digital watermarking is a security system that is used to envelope a content that is streamed in digital form so that permission is sought and obtained before authorization granted to access a protected work. Watermarking has been tested as an effective technological mechanism for copyright protection in digital contents more especially as it concerns audio files. A watermarked work is basically an enveloped massage designed to be difficult to access without authorization. When a work is concealed, the technology will indicate as such thereby helping you to determine if the original has been tampered with (Beseck, 2004, p.3). A watermarked file could be likened to a file that is covered by a copyright notice. It facilitates easy access to the copyright owners for those genuine users that would want to reach the original copyright owner.

Copyright piracy like terrorism is a trans-border problem. Therefore, co-operation amongst nations must be emphasized. Facts are there that the recent increase in piracy in Nigeria is traceable to the tightened the copyright policies of some of her neighbouring countries. The influx of pirates into Nigeria is due to our large market and again because Nigeria is a conducive location for them to carry out their illicit copyright piracy. Consequently, it is advised that harmonization of copyright policies globally could help in assuaging the menace.

10. Creation of Related Agencies to Compliment the Functions of the Nigeria Copyright Commission

The work load on the Nigeria copyright commission is much that such functions should be re-distributed to about two or more related commissions to be established for a more successful result. For instance, the public enlightenment campaigns by the commission have been very poor considering Nigerian population. It is a truism that many literates Nigerians today can not differentiate among copyright copy left and plagiarism etc due to poor public awareness campaigns which falls within the functions of the Nigeria copyright commission.

The emergence of the Nigeria copyright commission in 1996 was with the rational to equip the Commission for a more effective Copyright administration in Nigeria. The commission as a body responsible for administering all matters relating to copyright has embarked on series of initiatives to reduce the upsurge of digital piracy but nevertheless piracy is still in the increase despite the above strides,

Nigeria is among the countries that depend on importation of software which led to the reason for treating intellectual property issues with little concern but it should be noted that the wealth of every nation cannot be measured without its intellectual property. United state of America in 1988 signed into law the Digital millennium copyright Act in response to the threatening digital revolution. This country has a Draft Nigeria copyright Bill submitted to the National Assembly since 2014 by the Nigerian Copyright Commission. However, the bill is still receiving input till today. It is obvious that the growth of technological advancement is geometrical while the pace to tame the tide is arithmetical. It is advised that Nigeria government be stricter in their administrative and enforcement of copyright policies.

In Nigeria from the first indigenous copyright Act of 1970 till date different copyright regimes have existed yet none of these regimes lived up to their statutory obligations. Some contained very weak criminal sanctions; some had little or no legal deterrent against piracy, while some made no provision for imprisonment.

From the fore going, it is imperative that a proactive and pragmatic legislation like the Draft Nigeria Copyright Bill of 2015 that has the capacity to respond to the prevailing digital challenges be signed into law.

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[1] Principal Partners, (Odoh Nwodoh & Associates), N0 101 Enugu Road Nsukka, Enugu State Nigeria, Corresponding author: Odohfabianekele@gmail.com.

[2]Lecturer, Faculty of Law, Enugu State University of Science and Technology (ESUT), Enugu State Nigeria, E-mail: godeme77@gmail.com.

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