Podcasts and the Law
The internet as well as technological advancements have introduced new ways of creating digital content and creatives have taken advantage of the endless opportunities technology offers. Podcasting is one of the ways through which digital audio content may be created. Now more than ever, podcasts are becoming popular, and Nigerians have gotten actively involved in creating content tailored after the needs of Nigerian audience. As at 2019, there were 700,000 podcasts on apple podcast directory- iTunes. In 2018 alone, it was estimated that an average of 575 podcasts were launched every day, which equals about one podcast every three minutes.
Podcasters are constantly thinking of ways to monetise their podcasts in order to recoup the money expended in its production. The extent to which they can derive financial benefits from their podcasts is largely dependent on the extent to which the law protects podcast as a form of intellectual property. The first thing to determine is if podcasts are known and protected under the Nigerian law.
Are Podcasts Known to the Nigerian Law?
Well, nowhere in the Copyright Act are podcasts mentioned, but this is because the law rarely uses words whose meanings are restricted. Rather, what is used in the law are broad nomenclatures that can accommodate items/subjects falling within a certain class. So, for example, rather than use the word ‘cars’ in a law, the word ‘vehicles’ may be used , so as to include all forms of automobiles.
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Copyright and the Protection of Musical works
A podcast is protected as a sound recording under the Copyright Act. Section 51 of the Copyright Act defines a sound recording as the ‘first fixation of a sequence of sound capable of being perceived aurally (through the ears) and of being reproduced’. A podcast on the other hand has been defined as ‘a digital audio file made available on the internet for downloading to a computer or mobile device, typically available as a series’.
It has also been defined as an audio recording of a discussion on a topic or an audio programme like a talk show. In essence, a podcast is a fixation of sound in accordance with the definition of a sound recording under the Copyright Act. A podcast comes within the meaning of sound recording provided for under the Copyright Act and is therefore eligible for copyright protection.
Also, a podcast by its very nature is fixed in a definite medium of expression, from which it can be aurally perceived, reproduced or communicated to the public. It is expected that a podcast be original, because a mere regurgitation of another’s work will not qualify a podcast for copyright protection.
The author of a podcast is the person authorised by law to do any of the acts covered by copyright. By virtue of the provisions of section 51 of the Copyright Act, the author of a podcast is the person who made the arrangements for the making of the podcast. This is usually the person who conceived the idea of the podcast and who makes practical efforts to bring the podcast into existence (egthe person who conceived and developed the idea, the person who booked and paid for the studio session, the person who wrote the script or procured a script for the podcast, etc.).
Upon the creation of a podcast, copyright will subsist in the work. Copyright in a podcast confers on the owner of the copyright the right to control the direct or indirect reproduction, broadcast or communication of the whole work or a substantial part of it either in its original form or a form recognisably derived from the original to the public.
The owner of copyright in a podcast also has a right to control the distribution of his/her podcast to the public by way of rental, lease, hire, loan, online streaming and downloads. When a podcaster willingly makes his/her podcast available for download and listen on public platforms such as Spotify, iTunes, etc, he/she has given consent for the work to be distributed to the public.
The Use of Copyrighted Works in a Podcast
In the making of a podcast, a podcaster may desire to use other copyrighted works in his/her podcast, for example, playing a music softly in the background, using it as the signature tune or theme of the podcast or using a song for a music break, etc. The use of copyrighted works in a podcast has legal implications, especially when copyright rules are not complied with.
The unauthorised inclusion of a musical work or any other work protected by copyright in a podcast amounts to an infringement of copyright. This is because the reproduction of a copyrighted work or its communication to the public amounts to copyright infringement. This is irrespective of whether any of the unauthorised acts was done in relation to the whole or a (substantial) part of the work.
The fair use/fair dealing defence will not avail a person who wilfully uses the copyrighted work of another, if the use does not fall under the recognised exceptions of fair use. Consequently, unless a podcaster can show that the use of the copyrighted work was for research purposes, private use (since the podcast is usually in the public domain, it does not amount to private use), criticism or review or the reporting of current events, then the defence of fair use will fail. So, a podcaster cannot plead fair use, even if he used less than ten seconds of a copyrighted work.
Where it is impossible to obtain a mechanical license or the express permission of the copyright owner, music beats can always be purchased online or signature tune recorded for the purpose of the podcast. Think about it for a second, if a license has to be obtained before including a copyrighted music in a cinematograph film (movies), why do you think the law will exempt you from obtaining a license, just because yours is a podcast (a sound recording)?
There are lawyers and law firms committed to providing affordable professional legal services to start-ups, it is necessary to consult such lawyers before you venture into podcasting, so as to forestall any legal liability that may arise on your part. Remember, ignorance of the law is no excuse!!!
 Inside radio, ‘Chartable Reports 700,000 Podcast Milestone Crossed’ (Inside Radio, 29 March 2019) accessed 16 October 2020. <http://www.insideradio.com/podcastnewsdaily/chartable-reports-podcast-milestone-crossed/article_7f2e2cc0-5241-11e9-a3f4-8bcfc122bae8.html>
 Copyright Act, section 7(1)(a).
 Copyright Act, section 7(1)(b).