Abstract

This article considers the actions of the developers of the game—Fortnite—Epic Games, whereby it incorporated the unique dance moves of known rap artists in a version of its game (Season 5, Fortnite released in July 2018), monetizing it, without permission from the artists. Since these dance moves are intellectual creations, thereby invoking intellectual property law issues, the article answers the question whether there is any form of intellectual property that protects dance moves that could allow the rap artists to seek legal remedies. 

The article answers this question in the negative, confirming that although unique dance moves could be afforded intellectual property protections, in this case, there is no such protection, and efforts to seek legal remedies would be futile.

Background

Fortnite through its two game modes  hits the gaming market in October 2017, first on PC, PlayStation 4, and Xbox One, later, it was introduced to the iTunes App store (in April, 2018) . Ever since then, the rest has been history, the game has broken records in the history of gaming including the number of players who have jumped on it, and most importantly, in terms of revenue. For example, in March, 2018 alone, Fortnite made 223 Million USD, and in May, 2018, broke its own record for the highest revenue made by a game when it made 318 Million USD . It should be mentioned quickly that Fortnite itself is a free-to-play game, and requires no purchase, at least to start playing the game. However, progressing through the game requires “Battle Pass”. These “passes” are only obtainable by using what is called V-Bucks—an in-app currency which can be obtained itself by purchasing them with real-world currency—USD, Pounds, Euros etc, or completing certain missions and other achievements, especially in the Save The World Fortnite mode. The V-Bucks can be used to ensure the continuance of playing or purchase of cosmetics (called Emotes), including dance moves for the third-party cartoon character a player is using/controlling in the game. Through these in-app purchases, today, Fortnite is worth 1 Billion USD . 

This article is about the unique dance moves being sold by Epic Games within the Fortnite game. For example, one of the dance moves (commonly known as “Milly Rock”) is being sold at the equivalent of $10. And for a game platform that has 78.3 million monthly players , there are chances that players purchase these dance moves. Importantly, whereas Epic Games had through its representative conferred that the “Battle Pass” that included the “Swipe It” Emote (an in-game rename of the “Milly Rock” dance move) was removed due to season 5 coming to an end and will never be sold or made available again, users who had previously unlocked or purchased the “Battle Pass” will still have access to it. So, in essence, the issue raised in this article is not moot, more importantly, the game still has other unique dance moves of well-known rap artists, including that of Snoop Dogg.

The concern for monetizing (without permission) the unique dance moves of rap artists as 2 Milly (who created the “Milly Rock” dance moves), Snoop Dogg (who created the “Drop It Like Its Hot” dance moves), Bloc Boy JB (who created the “Shooter” dance moves) first visibly came from the another rap artist—Chance The Rapper—in a July 13, 2018 tweet, where he suggested sharing the revenue made from the sale of the dance moves (or Emotes) with the actual artists who created the said dance moves. Of course, Epic Games refused to share any revenue, and the issue just created a lot of reactions online from other game players who most commonly feel the revenue should be shared, or at least that the artists should be referenced. These “mixed concerns” since July, 2018 when the season 5 of the Fortnite game was released have not resulted in players boycotting Fortnite, instead, the number of players has increased. It seems the artists whose “intellectual property rights” have been infringed are expected to pursue their legal actions as the game players do not want to be bothered.

Ultimately, in November, 2018, 2 Milly, one of the rap artists whose unique dance moves—“Milly Rock”—has been monetized without his permission threatens to sue Epic Games for intellectual property infringement, and intends to seek compensation . The question then is, “can Epic Games be held liable for intellectual property infringement in this case?”

Legal Opinion

First, the relevant intellectual property mechanism for protecting a unique dance move is copyright, and the closest type of copyrightable work is “choreography”. The US Copyright Act expressly protects “choreographic works” under its copyrightable subject-matters . So, what is the legal definition of a “choreographic work” ?. The Copyright Act has no such definition, which means the court, legislative history, and/or the Copyright Office might have to offer guidance on the definition or what will constitute a copyrightable “choreographic work”. The US “House and Senate Reports” had averred that a choreographic work has “fairly settled meanings,” and included that, it not “necessary to specify that ‘choreographic works’ do not include social dance steps and simple routines.”  This definition or suggestion is not itself clear, but at least, it is clear that a choreographic work is seen as an ‘embodiment’ which could include social dance steps and simple routines.

However, it must first be noted that prior to the US Copyright Act, of 1976, choreographies were often registered in the US Copyright Office, just not as choreography, rather as dramas. The 1976 Act made choreography expressly copyrightable following a study made to the sub-committee of the Committee of the Judiciary Copyright on IP issues which includes choreographic works . To further seek a definition, in 1952, Hanya Holm the first person to register a choreography for the Broadway musical “Kiss Me Kate” wrote a letter to the sub-committee highlighted above. In that letter, dated January 2, 1960, she made three points, that choreography should be subject to copyright; choreography should be named as a separate category of copyrightable matter; and the term “choreographic works” should include dramatic concert pieces, lyric-dramatic concert pieces, satirical concert pieces, and dance in operas, musical comedies, and revues. (Italic added by the writer). 

Turning to ordinary English meaning of the term “choreography”. Merriam-Webster defines the term as “1 : the art of symbolically representing dancing; 2a : the composition and arrangement of dances especially for ballet b : a composition created by this art”. The American Heritage Dictionary also defines the term as “1. the art of creating and arranging ballets or dances. 2. The art and technique of dance notation. 3. The art of dancing.”

What is common in these definitions is the use of the words art, dance, sequence/arrangement etc. From this definition, it is clear that what the Copyright Act intended is more than a single dance move as argued by the rap artists whose unique dance moves have been appropriated. It is no wonder that in a Circular made available by the US Copyright Office on “Copyright Registration of Choreography and Pantomime”, the Office asserted that “some categories of dance…do not fall within the subject matter protected under the Copyright Act even though they may be unique.” Also, that “individual movements or dance steps by themselves are not copyrightable, such as the basic waltz step, the hustle step, the grapevine, or the second position in classical ballet. The U.S. Copyright Office cannot register short dance routines consisting of only a few movements or steps with minor linear or spatial variations, even if a routine is novel or distinctive.” Finally, “for copyright purposes, choreographic works are a subset of dance and are not synonymous with dance. The drafters of the copyright law also made clear that choreographic works do not include social dance steps and simple routines. Registrable choreographic works are typically intended to be executed by skilled performers before an audience.”

Out of the two requirements for copyright, originality, and fixation. It is obvious that the “originality” requirement which borders on the creativity or the skill/labour expended on a work is the reason why a dance move would not be copyrightable, and this is expected because of the level of creativity required by US Courts in regards to the originality of work requirement . Even in jurisdictions where skill/labour (or “sweat of the brow”) test is the standard for originality , it would be almost impossible to ‘pull’ copyright protection for a single dance move. Clearly, a level of sophistication is expected from a work intended to be registered as choreographic work.

The reasoning behind denying copyright protection in simple dance moves, albeit unique, is reasonable. It would abuse the creativity, effort, and skills expended by real choreographers in an opera setting for example, and every one with a simple movement of hand or body would be able to enforce copyright infringement when another person did a similar body or hand movement—considering that copyright is automatic. Allowing the copyright of a simple dance move would mean a sentence uniquely crafted by a writer would be copyrightable as well, including a whole paragraph, or a whole book written.

Conclusion

An effort to claim copyright infringement by Epic Games is futile and is dead on arrival as there is no copyright infringement. At best, in order to ascend to the level of “originality” presupposed by the law, a simple dance move is just a brick in the wall of what is required, and there has to be a sequence of different moves, expressive patterns that should ultimately culminate into a “choreography”. 

However, another argument could be made that where the unique dance moves are used as a trademark (i.e. used in the course of trade), the argument is taken away from copyright discourse, and to trademark discourse in lieu. The answer under a trademark IP mechanism is also no—a single unique dance move or even a choreography (viable under Copyright) used in the course of trade cannot be trademarked, mainly because it will not perform the primary function of trademark—which is to show the origin of a product or service. This rationale itself is controversial. A dance move can suggest the origin of goods or services, but obviously, not always, and it seems, for this reason, it is not safe to allow the trademark of a dance move. It is however certain that a dance move name itself can be trademarked, e.g the “Milly Rock” name attributed to the dance created by the rap artist “2 Milly”. If Epic Games thus used the name “Milly Rock” in the Fortnite game to describe the dance, then, this would be a trademark infringement. However, Epic Games has precluded this scenario and instead renamed the dance step as “Swipe It” instead of “Milly Rock” to avoid potential liability or intellectual property issues. Aside from this, currently, the dance name itself is only associated with 2 Milly, it is neither registered as a trademark nor is the dance move name used in the course of trade. 

This case shows one of the laxities of intellectual property as often argued by the subject’s critics. A work that does not meet the standard of the different IP mechanisms even though useful or could make millions are being “thrown away”, and others can enjoy a free-ride of it. In an ideal system without copyright, but with intellectual property in place, an appropriation of a unique dance step, monetized, and which contributes to a windfall income for the person who appropriates should attract some compensation or at least the moral right of attribution. 

Epic Games conduct offends ethics in business, but not law. 

References 

 Fortnite: Save The World, and Fortnite: Battle Royale  https://www.google.com/search?q=fortnite+apple+release+date&oq=fortnite+Apple+release&aqs=chrome.0.0j69i57j0.5350j0j7&sourceid=chrome&ie=UTF-8

  https://www.statista.com/statistics/865601/fortnite-revenue/

  https://9to5mac.com/2018/07/19/fortnite-one-billion-revenue/

  https://www.polygon.com/fortnite/2018/9/20/17884036/how-many-fortnite-monthly-players-2018

  https://www.telegraph.co.uk/technology/2018/11/19/rapper-threatens-sue-fortnite-maker-stolen-dance-move/

  See section 102(a)(4), US Copyright Act

  In law, the legal definition of a word as stated in the relevant section of the law, e.g. in the law’s Interpretation Section would ordinarily have preference over the ordinary English meaning.

  S. Rep. No. 473, 94th Cong., 1st Sess. 52 (1975) (hereinafter cited as S. Rep.); H.R. Rep. No. 1476, 94th Cong., 2nd Sess. 53-54 (1976)

  STUDIES PREPARED FOR THE SUBCOMMITTEE ON PATENTS, TRADEMARKS, AND COPYRIGHTS 01′ THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE EIGHTY-SIXTH CONGRESS, SECOND SESSION PURSUANT TO S. Res. 240 STUDIES 26-28 28.

  https://blogs.loc.gov/copyright/2017/08/copyrightchoreography/

  See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340

  e.g. the UK

Gbenga Odugbemi

Having observed the proceedings against the NBA President, on the 18th of December 2018, the charges filed, and the application for transfer already made by the NBA President, judging from the activities of the persecutors/prosecutor, which the case obviously has it’s alleged crime committed in Uyo; AKSG and its officials resident in Uyo. Zenith bank in question is in Uyo. 

EFCC investigations/interrogations all in Abuja office of the EFCC. President’s office is the NBA House located in Abuja. Absolutely no connection to Lagos. I make bold to say that the EFCC engaged in *FORUM SHOPPING* and same is also an abuse of court process. I place reliance on the following authorities;

MOHAMMED v. PETRODEL RESOURCES (NIG) LTD

(2018) LPELR-44197(CA)

ISSUE

ABUSE OF COURT/JUDICIAL PROCESS(ES) : Whether forum shopping is an abuse of judicial process

PRINCIPLE

“the issue of forum shopping is regarded as an abuse of Court process and it is a jurisdictional issue. See Alhaji Muhammadu Maigari Dingyadi & Anor v. Independent National Electoral Commission & 2 Ors. (No. 2) (2010) 18 NWLR (Pt. 1224) 154 at 195, per Chukwuma-Eneh, JSC where the Supreme Court stated as follows: “The term abuse of process connotes simply the misuse of Court’s process and it includes acts which otherwise interfere with the course of justice. Clearly, the acts include where without reasonable ground a party institutes frivolous, vexatious and oppressive actions and also by instituting of multiplicity of actions or is on a frolic act of forum-shopping i.e. seeking for favourable Court to entertain a matter. It also includes depriving the Court of jurisdiction. Arising from such acts the Court has the power to treat the acts as contemptuous of the Court which can apart from resorting to the use of its coercive powers of contempt can also order the action to be stayed (as has been done here in the appeal No. CA/S/EP/GOV/10/2009) or dismiss it as the case may be.” See also the case of Dr. Roy Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218 at 238 per, Eko, JSC, where the Supreme Court re-emphasized the position of the law by stating as follows: “Abuse of Court’s process, admittedly, was one of the issues raised in the respondent’s grounds of appeal at the Court below. It is an issue of law and it is closely related, in the circumstances of this case, to the issue of estoppels per rem judicatam. For instance, as it was held in Yar’adua & Ors. v. Atiku Abubakar & Anor. (2008) 18 NWLR (Pt. 1120) 236 by the full Court of this Court, it is an abuse of Court process for a party to re-litigate an identical issue which had been decided against him by a Court of competent jurisdiction. Abuse of Court’s process simply connotes the misuse of the Court’s process to invoke the jurisdiction of Court. It includes the act of a litigant, like the appellant herein, embarking on a frolic of forum-shopping. That is, by his seeking for a friendly and favourable Court to entertain his matter.” Per ADUMEIN, J.C.A. (Pp. 12-14, Paras. F-E)

Olajide Abiodun Esq

Photo Credit – DNL Legal & Style 

I can distill via the letter of transfer already filled and served, and the proceedings in court on the 18th of December 2018 that the court is towing the lane of being biased and below are authorities to that effect.

KASHAMU v. AG OF THE FRN

(2013) LPELR-22357(CA)

ISSUE

“BIAS” : Meaning of “bias”

PRINCIPLE

“By the Black’s Law Dictionary 8th Edition, page 171, bias means inclination, prejudice or predilection. It may be actual, implied or judicial. This concept of bias has also been judicially defined and/or explained. According to Ayoola, JSC in Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 41 – 42, bias is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the judge so influenced will be unable to hold an even scale. In Womiloju v. Anibire (2010) All FWLR (Pt. 529) 1002 at 1013 – 1014, Muhammed, JSC explained the concept of bias as follows: ” ‘Bias’ generally is that instinct which causes the mind to incline toward a particular subject or course. When a judge appears to give more favour or consideration to one of the parties before him either in his utterances, contention or action which is capable of perverting the cause of justice or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias. But where a trial has been conducted in which the authority of the court has fairly been exercised in consistence with the fundamental principles of justice embraced within the conception of the process of law then there is said to be a fair hearing.” Per ABOKI, J.C.A. (Pp. 57-58, paras. A-A)

CITED CASES

Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 41 – 42.

*There can also be said to exist a real likelihood of bias in the conduct of the proceedings*

I am also relying on the case of CUSTOMARY COURT OF EDO STATE V. AGUELE & ORS.

(2006) LPELR-7627(CA)

ISSUE

“BIAS’ : Definition of “bias”

PRINCIPLE

“Bias has been defined in Denge v. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 233 – 234 per Ndoma-Egba, JCA to mean; “The term real likelihood of bias may not be capable of exact definition since circumstances giving rise to it may vary from case to case, but it must mean at least ‘a substantial possibility of bias’. This may arise because of personal attitudes and relationships such as personal hostility, personal friendship, family relationship, employer relationship, partisan in relation to the issues at stake and a whole range host of other circumstance of a real likelihood of bias may be drawn….. Bias or likelihood of it covers a wide range of circumstances. It may arise if a judge either explicitly or implicitly indicates partisanship in a cause or matter before him by expressing hostile opinion favourable to one party in the controversy he has a duty to settle or has unduly earlier expressed his views about the merits or demerits of a case committed to him for fair hearing and determination. This may amount to the prejudgment of the matter rendering the judge inadequate in the proving minds and eyes of the public, to proceed in hearing and determination on the controversy between the parties concerned on the merits.” Per BULKACHUWA, J.C.A. (Pp.27-28, Paras.C-B)

CITED CASES

Denge v. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 233 – 234.

We are also not ignorant of the fact that the Judge had been in the past working for the efcc before arrival at the bench. Which also embolden one with the case of

KENON & ORS V. TEKAM & ORS

(2001)LPELR-1688(SC)

ISSUE

“BIAS”: Meaning of “bias”

PRINCIPLE

“Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale.” Per Ayoola, J.S.C. (P. 29, paras. C-D)…..

Granted, it is trite that bail is at the discretion  of the Court, however the same court has been advised repeatedly in many Supreme Court cases that such discretion must be exercised Judicially (as  an upholder of Law with pure and neutral mind) *JUDICIOUSLY* ( with wisdom and maximum discreet). 

Evidence Act lists item that can be taken judicial notice of to  wit :

I am in interested in paragraph *j*

. (1) The court shall take judicial notice of the following facts –

(a) all laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore or hereafter to be in force, in any part of Nigeria:

(b) all public Act passed or hereafter to be passed by the National Assembly and all subsidiary legislation made thereunder and all local and personal Acts directed by the National Assembly to be judicially noticed;

(c) the course of proceeding of the National Assembly and of the Houses of Assembly of the States of Nigeria;

(d) the assumption of office of the President and of any seal used by the President;

(e) all seals of which English courts take judicial notice; the seals of all the courts of Nigeria; the seals of notaries public, and all seals which any person is authorised to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;

(f) the existence, title and national flag of every State or Sovereign recognised by Nigeria;

(g) the divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by Act;

(h) the territories within the Commonwealth or under the dominion of the British Crown;

(In) the commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons;

(j) the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, *and of all LEGAL PRACTITIONERS* (capital is mine to create emphasis) 

*and other persons authorised by law to appear or act before it*

(k) the rule of the road on land or at sea;

(l) all general customs, rules and principles which have been held to have the force of law in or by any of the superior courts of law or equity in England, the Supreme court of Nigeria or the Court of Appeal or by the High Court of the State or of the Federal Capital Territory, Abuja or by the Federal High Court and all customs which have been duly certified to and recorded in any such court;

(m) the course of proceeding and all rules of practice in force in the High Court of Justice in England and in the High court of a State and of the Federal Capital Territory, Abuja and in the Federal High Court..

There is NBA the Association of all  Lawyers in Nigeria, top in the hierarchy is Mr President the NBA President. The No 1 Lawyer in Nigeria!!. The Court is enjoined by Evidence Act to take Judicial Notice of NBA President, the No 1 Lawyer in Nigeria, even when bail is discretionary it is not absolute it must be exercised *judiciously*

It is an insult, a slap, a huge embarrassment to this profession for Mr President not to be accorded respect and granted bail on self recognizance, The No 1 Lawyer of the largest bar in Africa.

It calls for a sober reflection.

It is not yet Uhuru. 

The Court has decided.  It is well.

Rafiu Tolani Esq

PU is surely facing his music. He personally took his plea yesterday. However, bear in mind that you also receive professional fees from clients, no matter how small. By the precedent being set in this case, your account could be investigated at any time and the result could be the same, if you do not scrutinize the sources of your fees.

The problem is not that PU is being prosecuted. The problem is the attempt to persecute him. Even if he is not NBA President, an average lawyer should interrogate the fact that charges preferred against a defendant were published in the social and print media up to a week before he got to be served. In other words, he first got notice of his charge and proposed arraignment from the media. 

As if that is not enough, he presented himself in court and EFCC did not come to court with that same charge that was published over a week before. The state rather invited him to come to their office to be served. It does not matter that by so doing, EFCC wasted the time of the court and all the lawyers and persons that attended the proceedings of that day. Note that the said EFCC office is just about 10 minutes’ drive to the court. So a fair-minded prosecutor could have simply sent for an officer to pick it up and bring to court.

The defendant presented himself for service and EFCC delayed him for about two hours before serving him with the charge and proof of evidence. They further delayed him for another two hours and indeed threatened to detain him, despite the fact that the matter was already before the court and the charge duly served on him. Anyway, they released him. 

On the day for arraignment, he expressed the fear that based on the events so far, he did not believe that he could get justice from the judge that was assigned to try him. The judge insisted on going on, pending the CJ’s decision, in defiance of all known authorities to the contrary. The defendant took the plea and was granted bail on stringent conditions. Stringent because, this defendant is a distinguished and SAN, and generally SANs have always been granted bail on self recognisance. There is no record of him not honouring any proper invitation by the State at any time to suggest that he could jump bail. Moreover, he is the NBA President. 

Friday, if these facts, do not bother you as a lawyer, irrespective of whether the defendant is a lawyer or not, an SAN or not, the NBA president or not, I am bereft of words.

Sixtus Onuka

“I think my president should have some Afam soup with periwinkle, right now. The case is over. Let me see how they will sustain the dummy position that PUC didn’t render legal services to Akwa Ibom or that he had a duty to know or dictate to HE Udom the source he should pay election petition fees from, and thereby committed a crime for failing to so direct. I’m laughing in Latin. (Efe Solomon Esq) “

“I think the bail conditions were to harsh!! He should have been granted bail on self-recognition. I mean, for whatever it is worth, whether rightly or wrongly, he is the NBA President.”

“It is a very sad day in the annals of our noble profession.We need to gird up our lines and pray that the “beasts of no nation” (RIP Fela) do not succeed in their quest to debase the legal profession.”

“You must understand that the concept of self-recognizance asa nail condition is not my invention. It’s in the law books. No court has said its unconstitutional or breaches concept of equality before the law. I agree the Judex has a discretion, but don’t forget that the discretion must be exercised “judicially and judiciously”. If chief olanipekun applied for bail on self recognizance and the prosecution did not oppose it, the court should not have refused it and prefer more stringent terms without giving reasons.”

It is pertinent to observe that this invasion started with a “sting operations” at the residence of their Lordships. Recall that the Bench were opportuned to protect itself through the landmark Judgement.Today, it is the President of NBA so be assured that no member of the profession is immuned. What a pity !!!! (Emmanuel Essiet)”

“The devil has lost the battle, imagine the monumental embarrassment to the BAR if these agents of darkness had succeeded to haul our president into prisons.I was already developing high BP while the proceedings was going on. The NBA must do something fast against this insult on the legal profession. The presiding Judge who did not grant bail on self recognision need to face NJC, it was a discretion not judiciously and judicially applied in all ramifications, my humble veiw.”(Olatunji Dawodu).

“*FRN VS USORO- PURPORTED MONEY LAUNDRERING CHARGE, THE EXISTENCE OF EFCC AND TO WHAT END*


Corruption is a cankerworm that has eaten deep into the economic fabric of the nation. Establishing the EFCC to fight this menace is a welcome development. That is why well-meaning Nigerians gave kudos to the administration when the EFCC was signed into law. But if you take a poll of Nigerians today on whether they supported the administration on the establishment of EFCC, opinion will be divided. This is because the powers that be has turned the EFCC into a willing tool in their hands to wage real and imaginary war against its perceived enemies using the EFCC as the hatchet man. EFCC has no real autonomy; it takes instruction from some cabals. 


The head of the commision is behaving as somebody that is above the law, not respecting people’s rights to a fair trial. He sees himself as a judge and accuser at the same time. He tries the accused on pages of the newspapers, in the process boosting his ego, and condeming the accused before their appearance in the law court. It is so unfortunate that the EFCC can be used to settled some personal grudges that are unfounded which are so unfortunate and unreasonable to discuss on. Why should I be persecuted for asking for my professional fees??Which law says i must ask my clients where they made their money from?


We all understand that what we can ill afford is the halfhearted, insincere and selective prosecution that is being practiced by the EFCC under the manipulation of Aso Rock. Unless you want to be economical with the truth, you cannot say unequivocally that the present admin is not using the EFCC to pursue vendetta against its enemies. How did PU become your enemy? Was it because he asked for his fees or there are more to it? To achieve real progress in the fight for the eradication of corruption, government must give the EFCC true autonomy and let the commission pursue its duties without let or hindrance. Only then can we say the EFCC is living to its billing.


*WE SAY NO TO THIS INTIMIDATION THAT WAS STATIONED AND TUTORED TO BRING THE BAR INTO DISREPUTE, (OLATUNJI M. D. ESQ). 

It must be pointed out that the attitude of some of our colleagues towards the present Nigerian Bar Association, NBA administration is an ill wind that blows no one no good. The war of words,  law suits without substance and good cause of action only with the intent to embarrass the NBA leadership,  connivance with EFCC to prosecute NBA leadership for charging a corporate client a high professional fee when the client has not complained;  thereby making the little fear the security operatives used to have when dealing with a lawyer to stand the risk of being eroded,  among others are reactions from certain quarters since the inception of the present NBA regime.

Permit me to make reference to what a resource person said at Johannesburg,  Republic of South Africa in March 2001, almost 18 years ago, when I attended the first conference in my life outside of Nigeria. A female resource person said in her paper that ” you don’t know a man by his actions. Actions are pre arranged. You know a man by his reactions.”

During the electioneering campaign we saw the actions of the opposition camps against Paul Usoro SAN. We saw his reactions. He never attack any personality. He only addressed issues. By such reactions from Paul Usoro SAN we knew him as a good statesman, with maturity, mutual respect, exposure and self control. 

 When Paul Usoro SAN won the NBA presidential election we now have the opportunity to see their reactions. If one may venture into doing a comparative analysis of the reactions of Paul Usoro SAN and that of his opponents one may not be wrong to say that Paul Usoro SAN was indeed a better material for the job. 

When we consider the recent suit of Ernest Ojukwu SAN against NBA and his reliance on the Freedom Of Information Act, I can’t help joining Mr. President to ask: “Why now?”  Even the holy  bible says there is time and season for everything under the sun. Even if there could have been a need for such a legal action against NBA, it has been overtaken by events, having recourse to recent reforms and restructuring of NBA by the present NBA national leadership.

NBA is advancing and moving forward in financial accountability and transparency. Even the NEC of NBA comprising of not only national officers but also branch chairmen, secretaries and NEC representatives passed a vote of confidence on the present NBA national leadership. 

NEC emphasized the need for financial

transparency, accountability and

prudence in the management of the

Association’s finances and commended

Paul Usoro-led administration for its

stringent and prudent spending and

financial management policy. 

The present NBA leadership needs encouragement from all well meaning members. Any action that distracts or is aimed to make them lose focus should be condemned in all its ramifications. Most law suits against the NBA lack merit both in form and in substance.

Politics at the micro level of NBA is different from politics at the macro level of the larger society.

Indeed a strong opposition at the macro level of politics creates a balance of power. It checks excesses. According to the old adage: “Power corrupts and absolute power corrupts absolutely. ”  At the micro level of NBA, it must be understood that NBA is the only pressure group of lawyers in Nigeria. Considering the terrain where we are where lawyers are being slapped or detained by security operatives for wanting to have audience with their clients. Security operatives disobey court orders with impunity. Even in the days of military regime, the NBA national leadership under Alao Aka Bashorun used to challenge the military dictatorship. Until in a public gathering Military President Ibrahim Babangida referred to him as “my colleague president.”  So was the sanctity of the office of NBA president respected. The respect is not just for the occupant of the office. It is for the legal profession. If the reverence for the office is jealously guarded and a lawyer is being maltreated, abused or dehumanized by security operatives, an intervention by the NBA can save the situation for the lawyer. But when lawyers themselves from within the NBA strengthen the hands of security operatives and remove the reverence for the sacred office of the president of NBA how safe are lawyers in a hostile terrain like Nigeria. After two years, the regime of Paul Usoro SAN will be over. There is no second term. But the effect of the negative reactions of some of our colleagues may take a long time before it is erased. Prevention they say is better than cure.

The present generation of lawyers and indeed the future generation of lawyers have no other pressure group than the NBA. We should arise and defend it. We should not only be intelligent. We should be wise. We should not only look at the immediate. We should consider the future of the Bar. God bless the NBA! 

Emmanuel Etietop Esq

Have you ever experienced the scenario described above? 

What did you do? 

After working so hard to deliver to a client and the client cancels the order for your goods or services at the last minute, how are you compensated for the time, effort and resources already expended on the order? . 

You can achieve this by simply informing your client before hand of your cancellation fee. A cancellation fee is a sum of money you must pay if you cancel an order after the cancellation deadline. .

You can introduce a cancellation fee into your agreements as it will go a long way in compensating you if your client changes their mind. 

@AOC.Legal/Instagram 

TECHNOLOGY STARTUPS AND DATA PROTECTION: AN EXAMINATION OF THE REGULATORY AND LEGAL FRAMEWORK OF DATA PRIVACY IN NIGERIA

Over the last two decades the world has witnessed tremendous advancement in technology. Technology continues to influence our daily activities. The improvement in that sector has also led to the increase in the establishment of technology startups that eventually scale to larger businesses. From commute to communication we resort to a device or service to make our lives easier.

What then is a technology startup? Techopedia defines startup as “a company in the early stages of business development.”  Therefore by extension, a technology startup is a startup whose main focus is on innovation and providing technology-based products or services. Startups are designed with the aim of solving a particular problem or servicing a particular need. 

The prevalent use of technology also led to an increase in the amount of data being shared. Personal details such as our names, email addresses, telephone numbers, credit/debit card details, etc. are processed and stored in servers. Oftentimes technology startups require such data to offer better services to their customers. This gives rise to issues such as the appropriate use of data and its protection from unauthorized third-party interference. 

The recent Facebook – Cambridge Analytica scandal, which involved the harvesting of data of millions of Facebook users without their prior consent by Cambridge Analytica, has brought about an increased concern for how one’s personal data is used. In the same vein, data and identity theft have given users of technology reason to be concerned with the protection of their data. Concerns for privacy of information can lead to users resorting to “self-censorship” as a means of protecting themselves. 

The above give rise to the question of what data privacy regulations technology startups in Nigeria are required to comply with while carrying out their drive for innovation.

In spite of the widespread adoption of technology in the country, the data privacy regime in Nigeria is still evolving and thus far has been unable to match the dynamic nature of the technology industry. 

Unfortunately, there is no specific data protection legislation as is obtainable in other jurisdictions such as the United Kingdom that has the Data Protection Act 2018. 

The protection of data in Nigeria begins with Section 37 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides for the right to privacy. It states as follows:

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

Section 37 of the Constitution appears to provide a broad protection of privacy in Nigeria, however given the currently level of improvement in technology, it can be argued that this provision would not be sufficient. Improper handling of personal data exposes the individuals concerned to immense harm. For example, in April 2018 Facebook disclosed that over 271,000 Nigerians were exposed to the Cambridge Analytica data breach.  However, given the lack of data protection legislation in Nigeria it would be a difficult task for authorities in Nigeria to demand an explanation for these breaches. 

Therefore there is need for there to be legislation that specifically protects data privacy in Nigeria. The presence of data protection legislation can go a long way in protecting the fundamental right to privacy that Section 37 of the Constitution provides. 

NITDA Guidelines

The National Information Technology Development Agency (NITDA) is an institution that was established by the National Information Technology Development Agency Act 2007 (NITDA Act). NITDA is an agency that responsible for the development and regulation of information technology in Nigeria. One of the means through which the agency does this is by developing guidelines as demonstrated by Section 6(b)-(e) of the NITDA Act 2007. It states:

“6. The Agency shall:

…

(b) Provide guidelines to facilitate the establishment and maintenance of appropriate (sic) for information technology and systems application and development in Nigeria for public and private sectors, urban-rural development, the economy and the government.

(c) Develop guidelines for electronic governance and monitor the use of electronic data interchange and other forms of electronic communication transactions as an alternative to paper-based methods in government, commerce, education, the private and public sectors, labour, and other fields, where the use of electronic communication may improve the exchange of data and information.

(d) Develop guidelines for the networking of public and private sector establishment.

(e) Develop guidelines for the standardization and certification of Information Technology Escrow Source Code and Object Code Domiciliation, Application and Delivery Systems in Nigeria.”

In line with its functions, NITDA developed the National Information Technology Development Agency Guidelines on Data Protection (NITDA Guidelines). Although these guidelines are currently being revised, they give a good idea about what technology startups embarking on business in Nigeria should consider when handling personal data. These guidelines apply to all persons who are based in Nigeria and also to persons who are based outside Nigeria if they are involved in the processing of personal data of Nigerians and persons resident in Nigeria.

A data controller can be defined as any person or body that decides the purposes and means of processing personal data. This function can be done alone or jointly with others. Therefore in relation to personal data, a technology startup oftentimes positions itself as a data controller. 

Under the NITDA Guidelines, data controllers have the duty to inform persons about the reasons why their data is being collected and the purpose for collecting personal information must be lawful and reasonable. The notice containing the purpose for the collection of data should be clear. 

Usually the purpose for which the data is being collected is stated in a privacy policy published by the data controller. The privacy policy provides detailed information such as the type of personal information to be collected, how such information will be used, and confidentiality rights. The consent of the person in question must first be obtained before the data controller can collect any information on them. The privacy policy also makes provision for what constitutes consent. 

However, data controllers should not be at liberty to collect all information on a person. By virtue of the guidelines, a data controller shall collect only the data that is needed. Thus a technology startup should collect only the information that would enable them to provide functional products and services to consumers.

In the event that data has to be sent outside Nigeria, the following criteria need to be satisfied:

1. There should be data protection guidelines or legislations in the country that is receiving the data.

2. The transfer of data should form part of a contract that contains terms as to data protection between the data controller and the receiving party.

3. The consent of the owner of the data must have been sought and obtained.

The GDPR and Its Significance for Nigerian Technology Startups

Earlier in the year the General Data Protection Regulation (GDPR) came into effect to protect European Union citizens (EU Citizens) from breaches to data privacy. The GDPR applies to data controllers who process data of those residing within the European Union, irrespective of whether these data controllers are within the European Union or not. By virtue of this increased territorial applicability, Nigerian technology startups that intend to handle the data of EU citizens must take note of this important regulation and ensure that they comply with its provisions.

Conclusion

The aim of this article was to highlight data privacy regulations Nigerian technology startups should consider before embarking on business activities. Technology presents itself as a promising means through which business and development can be fostered. In the 21st century, data has become an important commodity that must be protected given the increased security concerns that accompany the sharing of such data. On account of this, efforts must be made to develop proper data protection legislation in Nigeria and ensure a stricter enforcement of the NITDA Guidelines. The technology industry is a dynamic one and as such the law has to be ready to match up with its dynamic nature to facilitate efforts at maintaining freedom and protection for Nigerians and residents in Nigeria.

References
1. “What is a Startup?” – Techopedia Accessed on December 7, 2018.


2.  Beck, Julie “People Are Changing the Way They Use Social Media” < http://www.theatlantic.com/amp/article/562154/ > Accessed on December 7, 2018


3. Anuforo, Chinenye “Over 271,000 Nigerians affected by Facebook data breach” < https://sunnewsonline.com/over-271000-nigerians-affected-by-facebook-data-breach/ > Accessed on December 12, 2018

4. Aderibigbe, Ngozi “Nigeria Has A Data Protection Regime” Accessed on December 4, 2018.

Judy-Vallery Imasuen is a legal officer at the Committee for the Defence of Human Rights who has an interest in Alternative Dispute Resolution, intellectual property law, corporate law and information technology.

Posted on LAWYERS IN NIGERIA (Facebook) on On 13/12/2018

I never supported the candidature of Paul Usoro, I was an unrepentant fan of the renowned, amiable and proficient Teacher; Prof. Ernest Ojukwu. That, however can not blind my sense of reasoning or lure me into dancing around the truth in the recent fiasco between the NBA president (Usoro) and the EFCC. 

That EFCC is on an errand to harass, intimidate, disgrace and cow the person of Paul Usoro and by implication the entire NBA, is beyond any dispute. Those whose mission EFCC is carrying, are not comfortable with the man’s readiness to always stand for what right, fair and just. 

The most unfortunate part of the story is that some lawyers are calling for his resignation as NBA president. This is not just callous but pitiful. This is a clear case of conviction even where no arraignment was done. For any lawyer called to the Nigerian bar to hold so, is to “create a monstrous situation whose manifestation can never be appreciated until fully illustrated” 

What happens if the President resigns and his guilt was later unproven? Will he be reinstated to the position after his acquittal? Will his resignation not be an admittance of the alleged offence he has told the whole world he is innocent of? Does he owe any duty in law to prove his innocence or its the duty of EFCC to prove his guilt? 

If we allow this, there may not be any NBA president that will complete his tenure as frivolous allegations and charges will now become a sword in the hands of all opposition to the sitting President! 

Are we saying the courts must investigate the source of funds of persons who pay fines as options for imprisonment? So lawyers should, after charging their clients, get clearance from EFCC that the funds are not proceeds of crime? Is there limit to which a lawyer can charge his professional fee? The answers to this mind-bugging questions may help me align myself with your position. 

I am not in anyway saying that Paul Usoro should not face his trial but must, while doing so, be allowed to enjoy the privileges donated by the 1999 constitution to a person standing criminal trial. Presumption of innocence,….! 

Very soon religious organisations will be asked to investigate the sources of funds their members bring as offering, tithes or donations. 

We must not allow this dangerous precedent to be set, otherwise, we all will suffer it. 

My opinion, please! 

D.M. Eyyazo Esq. ACIArb (UK)