#101 SERIES: Dear Nigerian Blogger - Avoiding Intellectual Property Pitfalls

Two days ago, I came upon some reports  that a journalist, Aye Dee, successfully got Google to takedown infringing content on the popular Nigerian blog lindaikeji.blogspot.com. (Linda Ikeji, in case you don’t know, is a Nigerian blogger, whose blog page  is among the 10 most visited sites in Nigeria.

Apparently, there has been some backlash against her on social media- as indicated by comments and other reports. It is difficult not to wonder how much of this is due to disapproval of what some feel she represents, what some might call “beef” and how much of it is really concerned with the issue at hand i.e. copyrights and related infringements.

Yesterday, Linda, in her characteristically un-fazed manner, responded to the issues in a long rebuttal. Her reply may be summarized as follows: 

• She did not infringe on Mr Aye Dee’s rights because she has never been to his site.
• 1.       The real reason Aye Dee & co are raising this claim is because they are  “haters”  trying to take her blog down_ because
  she is a success,  in the "Top ten".
• Their first approach to doing this was to spam her site, which led to Google once taking down her ad sense (not her site) not because of copyrights infringement but because of too much spam.
• Recently, after she published news of her newly acquired range rover, this same people decided that plagiarism would be an easier option for taking her down on blogger( forgetting, according to her, that she could move from blogger to her own site.
• She admits that she takes content from other sites but goes on to say Bossip.com, Daily Mail & Co do so too.
• Then she alleges that Aye Dee is a shady character and a cyber squatter, based on an investigative report published on africamusiclaw.com.
• She is glad this happened as it will push her to get more hands, get an office and take her business more seriously.

From the backlash that came upon her, following the accusations, the accuser is now being accused of cyber squatting, not to talk of slander and defamation.

This post is does not attempt to take sides (the jury is still out). This post is about IP and blogs, I only highlight the above to contextualize the advise I would give to a Linda Ikeji (and other bloggers, of course).  I would advise as follows.

• First of all beyond IT, a lot of this is about IP: It’s about Copyrights, Moral Rights, and other related rights, such as right to privacy.
• Everyone is doing it will not cut it as IP Laws evolve:  there are many other top Nigerian blogs that are clearly and potentially infringing copyrights. It is true that some of this may be attributed to lack of initiative and originality, this is prevalent in online  News & Entertainment media- I can’t count the number of times I have searched for a report on something and find 10-20 blogs reporting it in exactly the same words. Yet a lot of infringement is due to ignorance. Furthermore, with all the sharing, retweeting, reposting, and tagging going on in the world, there is a good chance that a larger percentage of us have, infringed on someone’s copyrights knowingly or not- we only care about this issue because you are popular; and the reason we make a big deal out of this is because you are a big deal. Still “everyone’s doing it”, won’t work.  Yes Bossip.com, Daily Mail, E Online appear to be doing this, but do you know the legal arrangements that allow this? You will find that in some instances some of those companies have the same mother companies. Note: as IP Laws eveolve they are usually tested on the "Top Ten" first.

• Understand how the blogosphere is evolving:

      The blogging industry has come a long way; from where we only had Yahoo! Mail,    Google search and information websites. Blogs were the pioneers of original content on the internet; the first step to people creating their own personal space. Then people posted stuff they saw, within their limited community of people; like listening to a new cd you got with your neighbors.

      Then came MySpace, Facebook, Twitter, Instagram e.t.c.  Now there are all kinds of blogs from travel blogs, to family, creative writing and company blogs. Some blogs, became so big that businesses were willing to put money in (as I’m sure you know). Then the dynamics changed, the ones who were grateful that you were sharing their stuff with their friends are now riled that you are not sharing all this money with them.  What was formerly publicity is now piracy or worse still, invasion of privacy.

The dichotomy between blogger and reader is disappearing. The amount of information sharing is increasing, and so is the infringement of copyrights. Blogging has become a minefield of intellectual property issues, particularly for popular income generating blogs.

• Develop greater awareness of the laws which guide your business:

Even though ignorance of IP Laws may be driving infringements; ignorance of the law is never an excuse. I may try to argue that the law is currently ignorant of trends in blogging, i.e. trying to catch up, but it, in this case it won’t hold much water.

For those who use blogger for example, note that your blog  is hosted by Google, an American company, thus your blog is being governed by American Copyright Law.

The primary law is the Digital Mellinium Copyright Act  (DMCA) which provides protection from copyright infringement lawsuits for service providers -like blogger.com (your service providers), wordpress and other content publishers. This protection provides immunity from being sued for infringement, as long as they take reasonable and swift action to remedy an infringement once they are notified.  They usually always comply.

•  Yes, reconsider your business structure

It includes your legal structure; there is no one size fits all structure; do you set up as an LLC where you can protect yourself from personal liability but expose yourself to greater regulatory compliance requirements and scrutiny or  do you set up as a business venture or sole proprietorship, or do you outsource the publishing of your brand name and blog content, and let the publisher and editor deal with all the other lT and IP issues, so you can just  focus on blogging (even from home) 

Owning your own blog is fine, but not as a shield from the Digital Millennium Copyright Act, it may have only given you more control and more time, before the enforcement of the takedown.  I would advise, you launch your own website, not merely to replace but to replicate the current blog and to increase your control options. We are living in a trans-media world.

Please get familiar with these eight words and phrases:

• Credits: Always Endeavour to give credit where it is due. I would like to repeat this particular advice to Generation X or is it Y, (because THEY, don’t seem to get it) “IT IS IMPORTANT TO GIVE CREDIT”.
• Copyrights: A form of legal protection, for original works of authorship fixed in a tangible medium of expression.
• Copyrights owner: the person who owns  the copyrights and has the right to make copies of the work, distribute the work, by sale, licensing, permission , and the right  create new works based on the original (which sounds like what a lot of bloggers do
• Defenses to Infringement Claims: These may include defenses based on fair
   comment, fair use, public domain doctrine, ownership issues, status of copyrights
  registration. E.t.c. The most complete defense against an IP infringement claim,
  is “Independent Creation” that is to say, Originality.
• Fair Comment: While this is not directly related to intellectual property, I highlight it because it is relates to a personal right and to one of the major complaints against blog sites like yours- defamation and slander. According to businessdictionary.com, Fair Comment is a “Defense to an action of defamation, that the statement in question was based on the speaker's or writer's honest and impartial observation or opinion about a matter or subject of public concern or interest”.
• Fair Use: This is the use of copyrighted material in a “transformative” way for the purposes of commenting, criticizing and parodying. It is another defense, available to you. Even though it’s limits are sometimes difficult to define.
• Permission: It is the consent that you receive to use the work of a copyright owner based on your request to do so. It is ok to ask for permission, especially when you are in doubt. Just do it.  To address your challenges with the time needed to get permissions, you can check out the creative commons licensed content for material that might be less time-wasting to get.
• Plagiarism: Simply put, this is taking credit for someone else’s written work. Not fair. Please cite sources, use quotation marks and please try to be as original as you possibly can.  Reposting entire articles (especially without giving credit, like many of your fellow bloggers do) is a no-no!
• Public Domain: Works in the public domain are not covered by intellectual property law. They include government documents. Do not assume that just anything that is out in the public domain is up for grabs. The fact that you ran a search on Google and an image came up doesn’t mean it is free for you to use. 

 Finally, retain competent legal counsel: This last piece of advice cannot be over-emphasized. I would have said that this shouldn’t cost more than a fraction of some of your recent purchases, but I don’t want to be mistaken for a hater; so I’ll just leave it at that. 

--

Ese Oraka is a Lawyer and Business Designer. He has extensive knowledge and experience in IP and Business Law, Innovation Management and Business Model Design. He is a founding partner at Adelphi Consulting. You can find him on - Twitter: @eseoraka, Facebook: /ese.oraka.9, or email info@adelphionline.com