The news is everywhere that Google took down Linda Ikeji’s blog on allegations of plagiarism. Here are four important legal lessons we can take away from it on how to protect ourselves and businesses in this digital age:
1. Know your Rights – Trademark Issues
Knowing one’s rights and taking appropriate actions to safeguard them can make a difference between protecting one’s business and having others take undue advantage of one’s labour. Before the recent development in Ms Ikeji’s legal battles, I had been wondering why she still hosted her blog, as big as it is (was), on blogspot; why she didn’t have her personal domain name. Yesterday however, I learnt that the people who filed reports to Google against Ms Ikeji did so out of malice because she had been reluctant to pay them the money they requested for the domain name they registered using the blogger’s name – Linda Ikeji; a case of cybers-quatting.
While the internet is the greatest invention in recent history, it has also provided opportunities for people to outwit and take advantage of less knowledgeable people through questionable practices including cyber-squatting. Cyber-squatting is defined in the United State’s Anticybersquatting Consumer Protection Act as registering, trafficking in, or using a domain name with bad faith intent to profit from the goodwill of a trademark belonging to someone else. The law was enacted to counter the practice where unscrupulous – or savvy, depending on how you view them – businessmen register a domain name using the trade names of popular companies and brands who have yet to register their domain name, and subsequently force the companies to pay them outrageous sum of money when the companies want to use their tradenames to establish an online presence. For example, before the law was enacted, if Coca Cola hadn’t done so, anybody could register cocacola.com, maintain it, and then wait to make money off the multinational company, who will have no choice than to buy the name from them, when they eventually want to register the domain name.
In Ms Ikeji’s case, it would have been prudent of her to register a domain name with her name, Linda Ikeji, once she saw that her blog was getting traffic and was making money. That would have prevented cyber-squatters from doing that first and trying to extort her now as they are doing.
Even now, Ms Ikeji can start to do some damage control. Although I doubt Nigeria has a similar law as the United states against cyber-squatting, the Nigerian tort of passing off, illustrated in the case of Niger Chemists v Nigerian Chemists should be sufficient for Linda to sue the people who are unjustly misappropriating her name for damages. Passing off prohibits a person from holding out his or her goods or services as having some association or connection with another when this is not true. Since passing off can be used to enforce unregistered trademark, it can be especially useful for Linda since it is unlikely she registered her blog with the Corporate Affairs Commission as a business in Nigeria. Most people who google Linda Ikeji do so with the intention to get to her blog. So anybody registering a domain name with her name has no good intention but an ulterior motive to take advantage of a brand she has single-highhandedly built. Alternatively, Linda can take the high road and ignore her detractors by using a different name to start a new website and subsequently conducting her business within the bounds of the law.
So the first lesson to take away from Ms Ikeji’s current legal battle is to make effort to take the extra step to protect one’s business and brand especially when there is a likelihood they would be a success. If it is a business, register it with the Corporate Affairs Commission. Besides protecting one’s business name, if registered as a limited liability company, one’s private funds and investments are kept safe if there is a liquidation of the business. If it is an online venture, buy a domain name with the name of your business. And if you don’t have the resources put the TM mark on top of your business name to alert potential users that you are laying claim to exclusive use of the name.
2. Know Your Responsibilities Towards Others – Copyright Issues
Having a right comes with a corresponding obligation to respect other people’s rights. For example, a factory owner has the duty to keep his plant safe from hazards for his employees and visitors. Same goes for a landlord. A trader has the duty to make sure his wares are fit for the purpose for which a seller buys them, etc.
In the case of intellectual property, it is the law that people who use their intellect to create intangible works should be allowed to benefit from them and not have others gain unduly from them; otherwise, there will be little motivation for creativity. Intellectual Property law therefore protects intangible creations of the mind including literary, musical and artistic works. To help protect such rights, companies like Google are required by law to take appropriate steps to take down contents infringing on other people’s rights. And I believe before Google took down Ms Ikejis’ blog, they must have at least found prima facie evidence that she did engage in some plagiarism. While it is hard for a celebrity blogger to produce original content all the time, it is important to note what is permissible and what is not when one lifts content from another website. The concept of Fair Use dictates the extent one can go. For example, while it may be okay to report a news one saw in another blog using one’s own words since facts are not protected rights, it is wrong to copy and paste a story the exact way it is written in another blog. Again, while using just an excerpt or quote is in order (with due credit given), copying an entire page isn’t. Moreover, where re-posting something posted by another will divert traffic from the person’s site to yours, the defense of fair use is not available to you.
Particular mention must be made of pictures as I have noticed that people often use them without authorization from the source. The same way one has a copyright to any article they write (except of course they are a journalist in the employ of a company in which case the right lies with the company) is the same way they have a right to any picture they take. For example, I understand that the right to the now popular, probably most tweeted selfie ever, taken at the Oscars at the behest of Ellen DeGeneres actually belongs to Bradley Cooper merely because when the selfie was taken, Ellen gave him the phone to take the picture because he was in a better position to capture everybody in the picture. Unless of course Bradley assigned the rights to the Academy.
While we may not put much value to intangible property in Nigeria, we must realize that intellectual property is highly treasured in developed countries. For example, paparazzi make money each time a picture they take is used on TV or in a magazine. Adequate authorization is given before such use and anybody who fails to do so risks paying much more in damages. So lifting pictures from other people’s websites without authorization puts one at risk of being sued by the copyright owners.
And a tip for other bloggers who need pictures to illustrate their posts – Gettyimages offer some pictures for free to bloggers. Using those pictures can be a way to keep yourself out of trouble and from using ones with price tags on them.
3.Hire an Attorney – Let Him Do Your Thinking for You
The best advice one can give to any successful entrepreneur is to get an attorney. Although the restriction on attorney advertising limits litigation in Nigeria (unlike in the US where people are inundated with advertisements from attorneys who engage in ambulance chasing teaching and reminding them of how others have wronged them), every entrepreneur must now brace for some legal disputes as Nigerians gradually become more aware of their rights. Having an attorney, even if one cannot employ him full time makes a difference between seeing and avoiding potential pitfalls litigants can rely on to sue one, and falling blinding into them and losing one’s hard-earned money to a costly suit that could have been avoided if one had worked within the law on the advice of his attorney. As unethical as TMZ is in their business practices, one would think they get into legal trouble often for torts including defamation and invasion of privacy, but they don’t. The reason they don’t is that they have an in-house counsel who go through every material before publication to ensure they carefully walk the fine line between freedom of speech and committing tort against others.
People in high-risk business especially need an attorney as they are prone to constant legal battles. Having a full time in-house counsel is highly recommended in such cases. Though Google can be a handy resource for a quick research, the difference between researching on your own and working on the guidance of an attorney is analogous to the difference between self-medicating and seeing a physician. So why not pay your attorney to worry about your legal battles while you concentrate on the important task of building your business?
4. Get an Insurance – For the Rainy Day
Having an insurance can make the difference between watching all of one’s sweat go down the drain with one costly lawsuit that ends against one and another that lets one be in business because they pay a little premium to an insurance company that takes care of such liabilities. While paying for insurance may sometimes seem like waste of money, the headache it saves one on a rainy day more than makes up for the premium paid. And that is why physicians and attorneys insure themselves against malpractice.
On a final note, I do hope the people who came after Linda weren’t solely prompted to act by malice and envy merely because of the 24 million naira car she recently added to her garage. If that is the case, then it is reprehensible. If they understand that there is enough room at the top for everybody, they will be better off spending their time and resources climbing the success ladder than pulling others down; doing the latter doesn’t help them make any progress in their own journey to success.
Disclaimer: The above is not a legal advice. Please consult your attorney for your legal problems. While the author made diligent effort to present the current state of the law, jurisdiction, subsequent changes in law and the peculiarity of your case may account for some differences that can only be made known to you by your attorney following a comprehensive research.
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