Whether StreamHub Nigeria Limited, as a digital intermediary, can be held liable for copyright infringement caused by third-party users.
It is the Plaintiff's firm and humble submission that StreamHub Nigeria Limited, regardless of being a digital intermediary, is liable for copyright infringement committed by the third-party users.
Meaning of copyright
Meaning of copyright infringement
In the present case, there is no dispute as to the existence of copyright in Ms. Bello’s works. Section 2(1)(b) of the Copyright Act, 2022, recognizes musical works as eligible for copyright protection. Additionally, Ms. Bello’s album, Voices of Harmony, including the hit song Echo of the Savannah, meets all the statutory requirements as stated in Section 2(2) of the Act for protection.
(2)Notwithstanding the provision of subsection (1), literary, musical or artistic work shall not be eligible for copyright unless —
(a) some effort has been expended on making the work, to give it an original character ; and
(b) the work has been fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.
Futhermore, the violation of this right is also undisputed, as third parties in this case unlawfully interfered with the exclusive right of Ms Bello and distributed copies of Ms. Bello’s work to the public without her authorization. This act constitutes a clear violation of Section 36 of the Copyright Act, 2022, which expressly prohibits the unauthorized reproduction and public distribution of copyrighted works. Specifically
36) Copyright is infringed by any person who without the authorisation of the owner of the copyright —
(a) does or causes any person to do an act, which constitutes a violation of the exclusive rights conferred under this Act ;
(c) sells, offers for sale or hire any work in respect of which copyright is infringed under paragraph (a)
(g) performs or causes to be performed for the purposes of trade or business or the promotion of a trade or business, any work in which copyright subsists
Notwithstanding, The core issue for determination is whether StreamHub Nigeria Limited bears liability for the copyright infringement committed by third-party users on its platform.
The plaintiff reiterates emphatically that StreamHub should be held liable.
Section 36 of the Copyright Act, 2022 has expressly stated that:
Copyright is infringed by any person who, without the authorization of the copyright owner—
(a) does or causes any person to do an act that constitutes a violation of the exclusive rights conferred under this Act.
Building upon this Section 9 of the Act, gives Ms. Bello's exclusive right to
Reproducing the work;
Publishing the work;
Producing, reproducing, performing, or publishing any translation of the work;
Distributing copies of the work to the public for commercial purposes, provided the work has not been subject to authorized distribution;
Broadcasting the work;
Communicating the work to the public.
Although StreamHub did not directly interfere with these exclusive rights, it indirectly contributed to their violation.
This is evident in Section 9(i) of the Copyright Act, which prohibits:
Making a work available to the public by wire or wireless means in such a way that members of the public can access it from a place and at a time of their choosing.
Additionally, Section 36(f) establishes that infringement occurs when a person:
Permits, within its premises, the reproduction of a copyrighted work.
By providing a platform that facilitated the unauthorized reproduction, distribution, and streaming of Ms. Bello’s songs, StreamHub played a critical role in the infringement. Without the platform’s involvement, the infringement would not have occurred on such a scale.
Stream hub jointly infringed (akin to contributory infringement in the US) on Ms Bello, which is sufficient to establish liability
Futhermore, Section 36(g) of the Copyright Act, 2022, provides that copyright is infringed when any person:
Performs or causes to be performed, for the purposes of trade, business, or the promotion of a trade or business, any work in which copyright subsists.
In this case, StreamHub operates as a commercial entity, deriving revenue from subscriptions and advertisements linked to the music available on its platform. By hosting and making Ms. Bello’s works available for public streaming, StreamHub effectively caused the performance and distribution of her copyrighted songs in the course of trade and business.
This directly falls within the scope of Section 36(g), reinforcing StreamHub’s liability. The platform’s role in enabling and profiting from the unauthorized availability of Ms. Bello’s works means it cannot claim to be a neutral intermediary. Its commercial benefit from the infringement solidifies its culpability.
More over, the defendant cannot seek refuge under Section 36(4) of the Copyright Act, 2022, which provides that:
Where an infringement is proven or admitted, but the defendant was not aware and had no reasonable grounds to suspect that copyright subsisted in the work, the plaintiff shall not be entitled to damages.
This defense is inapplicable in the present case, as the plaintiff duly sent multiple cease-and-desist notices to the defendant, in compliance with Section 54 of the Act. Despite these formal notifications, the defendant failed to take any action, allowing the infringement to persist for months. This clear disregard demonstrates willful negligence rather than an innocent lack of awareness.
Furthermore, the defendant had a duty of care to ensure that uploaded content was lawfully authorized. A commercially operating streaming platform cannot simply rely on user declarations but must exercise reasonable diligence in verifying copyright ownership. Failing to conduct due diligence amounts to negligence and does not absolve the defendant of liability.
The defendant also argues that it faces challenges in policing millions of uploads. However, this argument lacks merit given the specific circumstances of this case. The infringing song is a widely recognized hit, both nationally and internationally, created by a celebrated songwriter. It is logically inferred that such a prominent track would have received significant streams and engagement, making it highly visible among other uploaded content.
Thus, the defendant cannot credibly claim that it was unaware of the song’s presence on its platform. Its failure to act despite the song’s prominence further underscores its complicity in the infringement.
Columbia Picture Industries v Robinson**:
- The court ruled that **deliberate ignorance** (e.g., refusing to investigate) can count as knowledge.
ISSUE 2: WHETHER OR NOT THE UNAUTHORIZED DISTRIBUTION OF MS. BELLO’S SONGS ON STREAMHUB’S PLATFORM CONSTITUTES FAIR DEALING?
It is the plaintiff’s contention that the unauthorized distribution of Ms. Amina Bello’s songs on StreamHub’s platform does not qualify as fair dealing under Nigerian copyright law.
The fair dealing exception, as provided under Section 20 of the Copyright Act, 2022, must be interpreted strictly and in line with judicial precedents.
The fair dealing defense under Section 20(1) of the Copyright Act, 2022, only applies to specific purposes, including:
(a) private use;
(b) parody, satire, pastiche, or caricature;
(c) non-commercial research and private study;
(d) criticism, review, or reporting of current events, subject to proper attribution;
(e) incidental inclusion in an audiovisual work or broadcast; and
(f) transient and incidental reproductions as part of a technological process.
It is evident from the facts of the case that song distributed on the platform was not use for any of these purposes and as such exceeds the permissible scope of fair dealing
It was not distributed for private use infact it was made widely accessible to the public
It was not transformed or made for the purpose of parody, criticsm or review, the third party users simply uploaded the songs in their original form without any commentary to this effect
And obviously, it was not made for a non - commercial research. Even though the uploads were made by the the third part users and not the stream hub, the third part users cannot agrue that uploaded it without a commercial insight, this is because the distribution occurred In a commercial context
The statute further provides that in determining whether a use qualifies as fair dealing, the following factors must be considered:
(i) the purpose and character of the usage;
(ii) the nature of the work;
(iii) the amount and substantiality of the portion used; and
(iv) the effect of the use upon the potential market or value of the work.
(a) Purpose and Character of the Usage
Ashdown v Telegraph Group Ltd, the court held that the motive behind the use of copyrighted material is crucial in determining fair dealing
The purpose of the distribution was to make Ms. Bello’s songs available for public consumption, not for private use, research, criticism, or any other permissible purpose under Section 20(1)
To make matters worse it was distributed in a commercial platform and safe to conclude that it was used for commercial purposes. It is no new news that platform like stream hub pay a quota of profit to third party users who upload on their platform
In Fraser Woodward Ltd v British Broadcasting Corporation (2005) EWHC 472 (Ch), the court emphasized that where an infringing work is used in a commercial setting, the fair dealing defense is significantly weakened.
(b) Nature of the Work
Ms. Bello’s songs are original musical works protected under Section 9 of the Copyright Act, 2022. The nature of a musical work, especially one created for commercial distribution, weighs against fair dealing. In Football Association Premier League Ltd v Panini UK Ltd (2003) EWCA Civ 1145, the court held that where a work is commercially exploited, the inclusion of the work must not be integral to the infringing content. Since Ms. Bello’s music was not used for commentary, criticism, or incidental inclusion, the fair dealing defense is inapplicable.
(c) Amount and Substantiality of the Portion Used
Lord denning's dictum
The entirety of Ms. Bello’s songs were distributed on StreamHub’s platform without authorization. The court in Hubbard v Vosper (1972) 2 QB 84 held that using the entirety or a substantial portion of a copyrighted work cannot be considered fair dealing. Unlike limited excerpts for commentary or review, StreamHub made Ms. Bello’s songs available in full, thereby exceeding the permissible scope of fair dealing.
(d) Effect on the Potential Market or Value of the Work
Unauthorized distribution of Ms. Bello’s songs on StreamHub’s platform directly competes with her ability to monetize and control the commercial exploitation of her music. The Nigerian Supreme Court, in Nigerian Copyright Commission v Compact Disc Technologies Ltd (2010) 5 NWLR (Pt. 1186) 227, ruled that unauthorized reproduction and distribution of copyrighted works deprive owners of their economic rights.
Similarly in Hyde Park Residence Ltd v Yell and, the court emphasized that fair dealing cannot be used to justify uses that cause economic harm to the copyright owner.
She was not given any royalties for it. Also making it accessible indiscriminately, makes the value of the uninfringed copies go down and it undermine her ability to control the use of her intellectual property
Similarly, in Football Association Premier League Ltd v QC Leisure (No 2) (2012) EWHC 108 (Ch), the court held that unauthorized transmissions that undermine the copyright owner’s commercial market cannot qualify as fair dealing.
By and large, The unauthorized distribution of Ms. Bello’s songs on StreamHub’s platform does not meet any of the statutory fair dealing exceptions under Section 20 of the Copyright Act, 2022
Definition of Copyright
Statutory Authority:
Section 2(1) of the Nigerian Copyright Act, 2022 defines copyright as the exclusive right granted to the creator of a literary, musical, artistic, or audiovisual work to control its use, reproduction, and distribution.
Judicial Authority:
In Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273, the House of Lords held that copyright protects the expression of ideas, not the ideas themselves.
In University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601, copyright was described as protecting original literary works, provided there is skill, labor, and judgment involved.
(b) Definition of Copyright Infringement
Statutory Authority:
Section 9(1) of the Nigerian Copyright Act, 2022 states that copyright is infringed when a person, without authorization, does any act reserved for the copyright owner, including reproduction, distribution, or public performance
Judicial Authority:
In Gramophone Co Ltd v Stephen Cawardine & Co [1934] 1 Ch 450, the court held that unauthorized public performance of a copyrighted work constitutes infringement.
In CBS Songs v Amstrad Consumer Electronics [1988] AC 1013, the House of Lords ruled that facilitating unauthorized reproduction can amount to infringement.
(c) Definition of Fair Dealing
Statutory Authority:
Section 20(1) of the Nigerian Copyright Act, 2022 allows for fair dealing in cases such as private use, research, criticism, and news reporting, provided it meets factors like purpose, nature, and economic impact.
Judicial Authority:
In Hubbard v Vosper [1972] 2 QB 84, Lord Denning stated that fair dealing must be genuine and not conflict with the copyright owner’s market interests.
In Pro Sieben Media AG v Carlton UK Television Ltd [1999] 1 WLR 605, the court clarified that fair dealing requires consideration of whether the work was used fairly for its intended purpose.
Issue one
It is undisputed that Ms. Bello’s works are protected by copyright and that her rights were indeed infringed by certain third-party users. However, the defendants respectfully submit that StreamHub Nigeria Limited should not be held liable for the unauthorized actions of these users.
Section 36 of the Copyright Act provides that copyright is infringed by any person who, without the authorization of the copyright owner—
a) does or causes any person to do an act, which constitutes a violation of the exclusive rights conferred under this Act ;
In this case, StreamHub neither engaged in nor induced any act that violated Ms. Bello’s exclusive rights. The infringement was solely committed by third-party users who uploaded her works without authorization. Holding StreamHub liable merely because it provides the infrastructure for content distribution would be unfair, especially when considering the circumstances of the case.
The circumstances of this case must be carefully considered. StreamHub Nigeria Limited was unaware that the content uploaded on its platform violated Ms. Bello’s copyright. The Copyright Act recognizes situations where infringement occurs unknowingly and provides that a person cannot be held liable for such infringement but may only be required to account for profits.
Section 37(4) of the Copyright Act states:
"In an action for infringement of copyright, where it is proved or admitted that an infringement was committed, but that at the time of infringement, the defendant was not aware and had no reasonable grounds to suspect that copyright subsisted in the work to which the action relates, the plaintiff shall not be entitled to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement, whether or not any other relief is granted."
Similarly, Section 44(3) provides:
"A person is not guilty of an offence under subsections (1) and (2) if he proves to the satisfaction of the court that he did not know and had no reason to believe that the copy was an infringing copy of any work."
Given these provisions, StreamHub cannot be held liable for copyright infringement because it lacked knowledge of the unauthorized uploads.
Until StreamHub was made aware of the infringement, it did not and could not have participated in any violation and once notified, it acted swiftly to remove the infringing content, thereby negating any claim of willful infringement.
The plaintiff contends that StreamHub had a duty to ensure proper licensing before allowing the distribution of copyrighted material. However, StreamHub has exercised reasonable diligence by implementing measures that require users, as part of their registration, to affirm that they hold the rights to any content they upload.
Additionally, the plaintiff alleges that she sent multiple cease-and-desist notices, yet she has not satisfactorily proven that StreamHub actually received them. In the absence of evidence confirming receipt of these notices, StreamHub cannot be held liable based on mere allegations. Even if, without conceding, such letters were sent, there is no proof that they were received.