Are Social Media Platforms Responsible for Intellectual Property Infringements?

Tuesday, December 7, 2021 / 11:27 a.m. / By Davidson and Raphael from AELEX / Header image credit: AELEX

introduction

The past two decades have seen an increase in the use of the Internet in general, and social media in particular. For example, in the United States, the the number of internet users has grown from around 241 million in 2011 to over 302 million in 2021 with a projection of around 321 million by 2025. Likewise, Internet use in Africa increased by around 12,795% between the years 2000 and 2021..

This increase in the use of internet services can be linked to the introduction, use and growth of social media platforms such as Facebook, WhatsApp, Telegram, Instagram, Twitter, TikTok, YouTube and many more. .. Over the past decade, social media has become a viable tool through which communication is effected, entertainment is created and promoted, goods and services are advertised, and transactions are concluded. With social media, people can communicate with each other wherever they are and at the same time share content like photos, images, videos and even voice messages. Indeed, social media keeps the world connected!

Social media platforms as intermediaries

Social media platforms act as intermediaries between parties who access their platforms. Given their structures, users can develop content and download that content for other users to access. These activities can be carried out due to the ease of access to social media platforms. However, one of the main pitfalls of this ease of accessibility is the possibility that it offers to use the platforms for illegal and unscrupulous activities such as identity theft, fraud and theft. intellectual property.

Some of these activities also involve violations and violations of intellectual property rights (IPR) which include the illegal use and distribution of content (such as text, videos or photographs), patent infringement and the misuse of trademarks. These IPR infringements have affected several businesses that use social media to promote and advertise their brands, products and content.

This has become a huge challenge for these companies, as they are pressured to deal with the rigors of enforcing their rights, when they are violated on social media. To complicate matters, very few countries have specific laws aimed at preventing IPR infringements on social media.

In Nigeria, except for the provisions of Section 15 of the Copyright Act under which a person can be held liable for a secondary copyright infringement when exhibiting in public any article for which the copyright has been infringed, there is no stand-alone legislation regulating the infringement of intellectual property on social media.

This lack of regulation suggests that owners of social media platforms have the power to determine how to deal with any IPR infringement that occurs on their platforms. Instagram, for example, in order to control and fight against infringements of intellectual property on its platform, has included in its terms of use provisions prohibiting content “illegal, deceptive or fraudulent or for illegal or unauthorized purposes ” and gives Instagram the right to delete or terminate an account that displays such content. TIC Tac and Twitter have similar terms in their terms of service.

While these provisions and measures are laudable, it is instructive to note that they do not specifically address the liability of these social media platforms, where despite the provisions prohibiting their users from infringing any person’s IPR, a violation or a violation occurs.

The relevant question at this point is to what extent are these social media platforms responsible for the intellectual property infringements that occur on their platforms? The following paragraph of this article deals with the scope and extent of their responsibilities.


Liability of social media platforms

As previously stated, social media platforms serve as internet / online intermediaries for their users. According to
tOrganization for Economic Co-operation and Development (OECD) Internet intermediaries aggregate or facilitate transactions between third parties on the Internet. They provide access, host, transmit and index content, products, and services created by third parties on the Internet or providing Internet services to third parties’. This suggests that in using the internet they serve a very important and profitable purpose. Therefore, it can be argued that they should be held accountable for the illegal activities that occur on their platforms.

There are generally three approaches to the liability of Internet intermediaries for any intellectual property infringement occurring on their platforms. These are:

  1. The strict liability model.
  2. The Safe Harbor model.
  3. The broad immunity model.

Under the strict liability model

Under the strict liability model, intermediaries are totally and unconditionally detained responsible and responsible for the usergenerated content. From where, they or they are required to monitor content and ensure its compliance with the law.

In this model, in the event of illegal activity, intermediaries are held responsible and would not benefit from any form of exception.

Under the safe harbor model

Here, social media platforms, as intermediaries, enjoy conditional immunity. This is, however, provided that they comply with certain requirements specified by law.

Instructively, this model includes “notice-and-takedown” procedures to be put in place by intermediaries. Intermediaries may also be required to have content filters. This is to prevent the hosting or transmission of illegal content.

Under the broad immunity model

In this model, intermediaries benefit from a broad, but sometimes conditional, immunity from liability for user-generated content. Here, a social media platform as an intermediary is not obligated to observe or monitor user generated data for illegal content.

Currently, it appears that the broad immunity model is the most commonly used model. Indeed, in the absence of any regulation, social media platforms regulate their interactions with their users. Some of them go so far as to provide exclusion clauses which exclude them from any liability in the event of a malfunction or the carrying out of an illegal activity. Nonetheless, it is important to note that regardless of the accountability model adopted, social media platforms, acting as intermediaries, may be mandated to remove illegal content when asked to do so through legal procedures.

Conclusion

In Nigeria, the broad immunity model is the model most commonly applied by these internet intermediaries / social media platforms. Much of this is because, as noted earlier, the intellectual property laws in force in Nigeria do not regulate the activities of Internet intermediaries. However, it is instructive to note that the Copyright (Repeal) Bill 2015 (“the Bill”) contains provisions governing the infringement of intellectual property rights online.and provides for orders / withdrawal requests in the event of an online infringement. Although it does not specifically provide for the scope of liability of Internet intermediaries, unlike the current Copyright Act, the bill obliges Internet intermediaries to take into account the orders or requests of persons. whose IPRs are violated, on their platforms.

The bill also provides for the suspension of the accounts of regular offenders / offenders. While these are notable developments, it is relevant to note that this bill was drafted in 2015 and has yet to be passed. The government must understand that this bill must more than ever be adopted into law, and even updated, given the recent technological and media developments which have seen many IPR infringements on the Internet.

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Footnotes

1. Joseph Johnson (“United States: number of online users 2010-2025”, August 4, 2021, https://www.statista.com/statistics/325645/usa-number-of-internet-users/ )

2.Internet World Stats (“Internet user statistics for Africa” ​​May 20, 2021, https://www.internetworldstats.com/stats1.htm)

3. Facebook is currently the world’s largest social media platform, with over 2.4 billion users.

4. Section 15 (1) (c) provides that copyright is infringed by the laws of Chapter C28 of the Federation of Nigeria.

5. https://help.instagram.com/581066165581870

6.Tiktok (“Intellectual Property Policy, June 7, 2021 https://www.tiktok.com/legal/copyright-policy?lang=en)

7. Anjana Viswanath (India: Liability of Intermediaries for Intellectual Property Infringements, 3e March 2020, https://www.mondaq.com/india/trademark/899230/intermediary-liability-for-intellectual-property-fringement)

8. It is also instructive to note that this pattern is followed by the EU Directive on Electronic Commerce, the Digital Millennium Copyright Act of the United States.

9.The Nigerian Copyright Commission (“The Copyright Bill 2015”, http://graduatedresponse.org/new/wp-content/uploads/2016/02/DRAFT_COPYRIGHT_BILL_NOVEMBER-_2015.pdf)

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