If the recent pronunciation by a court in a copyright suit by Hip Hop artiste Hubert Nakitare, alias Nonini, against Japanese company Syinix Electronics Ltd and influencer Brian Mutinda, does not ring alarm bells for corporates and corporate influencers, concerning intellectual property, then what will?
In the ground-breaking suit, it does look like a precedent was set for corporates and the influencer economy. In the suit, Syinix Electronics Ltd and influencer Brian Mutinda were castigated and found liable for infringing on the intellectual proprietary rights of the famed rapper when they used a popular hit song by the singer, without his permission, in a video seeking to market one of their products. The court held that the appropriation of the hit song, without the permission of the maker, amounted to an infringement of the copyright, and proceeded to award the singer KSh 1 million in general damages, alongside the orders to remove the infringing content from all of their platforms, pay the cost of suit, and pay interest at the court’s rate.
Ease of access: An ever-pressing challenge?
The use and application of copyrighted material, particularly text and image-based materials, music, and video content is becoming increasingly intense and pervasive in the corporate world today. This has permeated even into entities without strong research divisions. Employees use and share valuable information from print and digital databases for practically every component of their jobs.
From research, public relations, and product or service management to marketing, employees are increasingly embracing ideas from these sources to meet their deliverables. Modern-day is characterised by a fast-paced world and technological advancements have exacerbated the access to information and data, and promptly, individuals are now able to access information and data, including copyrighted material, as a precipice to innovate, collaborate and stay ahead of the curve.
Corporate entities rely on various forms of content ranging from scientific and technical information and data, statistical information presented in graphs and photographs, business information and insights, photographs and images, videos, and other works of the creative industry to journals and magazines.
Access to these forms of content can be typically gained through desk research, subscriptions from publishers or agencies of various types including document delivery and press-clipping agencies, and corporate intranets and the internet. Notably, the ubiquitous nature of information and data on the internet has made it even extremely easy to gain access to information, including copyrighted material.
The tide of copyright compliance
For starters, the tide of copyright compliance is that has and will never settle. Creative and innovative content is being developed by the day, and access to such content is becoming easier, in the same vein, due to advancements in technology. More importantly, these questions exemplify that fact: how does an employee approach a task or assignment where he or she needs to share a scientific article, blog, photographic or video graphic content, or statistical information among others? How do they discern whether such material is copyrighted, and who is the owner of the copyrights? Who do they seek expert opinion and advice from, within the company, to guide on copyrights and even guide the process of getting permission?
Data from the World Intellectual Property Organization (WIPO) website points out that although copyright awareness is higher among employees than it was five years ago, the Achilles heel of insufficient awareness of their duties and responsibilities under intellectual property (IP) laws, particularly when it comes to sharing digital content, still remains largely existent.
A huge chunk of the global employee population believes and assumes that data or content readily available on the internet can be appropriated, shared, or used without seeking permission from the owners. They harbor an underlying assumption that data, information and content from platforms they subscribe to can be forwarded without permission. They also are unaware of whether they need to or even how to seek permission to use such content.
The dualistic mix of low awareness of copyright and the ease and fast access to information, content and data, has made the tide of copyright compliance even bigger for corporates today. As such, corporates today have found themselves either struggling to cope or responding to the challenge of copyright risk management. Notably, even for corporates that have in place measures to ensure corporate compliance, difficulties arise in permission-obtaining ventures.
The process of obtaining permission from copyright holders can turn out to be a cumbersome and time-consuming exercise, more so where unclear, inefficient and inflexible licensing premiums are used. Corporates bear the task of identifying the works that uniquely fit into their specific goals to use them, locate and find the right holders or where applicable, licensing agencies, and subsequently gain permission to use, appropriate, or rely on such copyrighted material. This task revolves around the resources of time and money. Moreover, obtaining the information and permission means interrupting normal business workflows, making the scale of copyright compliance enormous, once again.
Navigating the tide and entrenching compliance culture
The vantage point amid these tides is that there are solutions to controlling and navigating the tides. The World Intellectual Property Organization (WIPO) has developed a “copyright compliance toolkit”. This toolkit summarizes the approach into three fundamental concepts: (a) education, (b) information, and (c) efficient licensing mechanisms.
Corporations also have products and services which they hold copyrights over. As such, it is safe to say that they appreciate the value of protecting copyright together with the financial and reputational risks that are likely to come into play upon infringement. Accordingly, it is fundamental that corporates ensure that their employees have access to sufficient, appropriate, and ongoing education on copyright matters.
Training, in-house or external, is the mechanism for doing so. It is important that such training is tailored to internal audiences and responds to their nature of business. From a broader perspective, corporates can have in place a copyright policy that embodies copyright education and even have a copyright compliance officer whose sole duty is to ensure company-wide adherence to copyright law, and by extension other ambits of intellectual property.
Information sources are fundamental. It is an undisputed fact that corporates thrive on information, and as such, they need to put in measures to insulate themselves from relying on information that is copyrighted without permission. To do this effectively, corporations can either work out ways to obtain permission from the owners of the copyright-protected content or rely on a single licensing broker to obtain licenses collectively.
Such brokerage companies have proven effective as they have simplified not only the access to copyrighted material but also made the process of requesting permission quick and easy, as they have a blanket or repertory type of license which is more popular among businesses.
(c) Licensing Mechanisms
Mechanisms that minimize the risks that come with copyright infringement are fundamental. Corporations need to balance their needs and use of content and ensure that they have in place a cost-effective licensing mechanism in place that allows them to access content as and when needed, while also minimizing the risks associated with copyright infringement. It is important to highlight that the choice and subsequent application of a licensing mechanism is a matter of shared effort between the intellectual property (IP) right holders and persons or entities who would like to use the IP-protected content
Ordinarily, corporate entities and businesses solidly thrive through collaboration and the exchange of knowledge. This requires access to, use, and appropriation of copyright-protected information and material. Ignoring the rights that accrue from copyright-protected content and data will result in reputational and financial risks for corporates. Entrenching a culture of compliance that revolves around employer education, licensing, and working on licensing mechanisms are life jackets for corporates to navigate these tides. Corporations can have in place a copyright policy that outlines simple and effective solutions and insulates corporations from the copyright compliance challenge.