Nollywood, Africa’s largest entertainment industry, is doing something big through the Nigerian Copyright Commission and it’s really big! Nigerian Copyright Commission (NCC) is reforming the Nigerian Copyright Act and based on what is in the Draft Copyright Bill 2015, it will surely revolutionize how business is done in Africa’s largest creative industry.
A little history here: Nigeria’s Copyright Act of 1988 (Decree 47) was created during Nigeria’s military era. Although Decree 47 has a lot in common with the old Copyright Act of United Kingdom, it has not kept in touch with the developments within the country and internationally until this reform. From what I see, if this Bill (with few additions and revisions) is passed into law, doing business in Nollywood will become more sophisticated.
The Bill has 88 sections divided into 11 parts compared to the 41 sections, four parts and five schedules in the current Copyright Act. Part I provides for works eligible for copyright protection. This Bill categorizes, in detail, the various works eligible for copyright and the exclusive right of the copyright owner in connection with the exploitation of those works. Part II deals with the exception to copyright control, particularly expanding on the parameters for determining fair use which is lacking in the Copyright Act. The drafters pretty much copied the provision of Section 107 of the United States’ Copyright Act, which has withstood immense judicial tests and stands as authority for determining fair use defense in the United States. Other specific provisions on fair use in this Bill include special exceptions for archives, libraries, museums and galleries, blind, visually impaired or otherwise print disabled persons and for certain sound recording of musical work. Part III provides for ownership, transfer and license of copyright work. This part not only contains similar provisions as in the Act but also expands on the framework for issuing such transfer or license including compulsory license and license for certain purposes. Part IV focuses on infringement of rights and remedies of copyright owners to commence civil action against infringers while Part V provides for criminal liability for such offenders with the ability to maintain both criminal and civil actions simultaneously. Part VI is an addition which now requires players in the industry to exercise certain anti-piracy measures by placing certain technological protection measures and electronic rights management information on copyright materials. Non-compliance with these measures could result in criminal and civil actions.
Part VII is another provision in the United States’ Copyright Act (described below) copied into the Bill. That Part seeks to protect internet service providers or operators of various platforms, where copyright works (music, film, etc.) are streamed or downloaded, from direct and indirect (contributory or vicarious) liability as a result of any infringing acts of their users. Copyright owners now have the right to issue “takedown notice” to these providers and operators regarding any infringing works on their platforms. Part VIII is another addition which focuses on the rights of performers covering exclusiveness of such rights, right to sue for infringement or unauthorized use, moral rights, and of course fair use exception to those rights. Part IX protects folklore, which is very important given Nigeria’s rich cultural heritage. The rights in the folklore will be administered by the NCC and infringement of those rights will lead to criminal prosecution. Part X provides for the administrative framework of the NCC and the Nigerian Custom Service (a very important commission of the Nigerian government in the fight against importation of pirated copyright works) is now a member of the NCC. That part also covers the establishment, approval and operation of a collective management organization. Part XI deals with the usual miscellaneous provisions.
I like many things about this Bill including the framework for registration of copyright works (section 73) which is missing in the current Act. Although registration of copyright is not required for a work to enjoy copyright protection since copyright vests upon fixation of the work. Now, registration guarantees prima facie evidence and this will help in transactions including financing creative content production, licensing, distribution, etc. I like the detailed provisions on copyright inspectors (section 72) which expands on the Appointment of Copyright Inspectors Notice 1997. There is now a clearer framework on Copyright Inspectors and their duties in monitoring piracy and infringement activities. While it will be exciting to see how Part VI on the rights of performers play out if this Bill becomes law, I am happy to see that performers, like actors and other creative professionals, will continue to derive value in their works. Unless compensation is paid or an agreement is entered into with the performer, exploitation of fixation of a performer’s performance will require such performer’s consent and such consent will be deemed as applicable to rebroadcasting of such performance. Perhaps as Nigerian entertainment industry continues to grow and more distribution platforms emerge, performers’ guilds and unions may be able to negotiate with entertainment outfits on the scale for residual payments for reruns of content containing their performance. With performers also having moral rights (section 58) like authors (section 13), performers now have the right to control how they are depicted or attributed (credit) in connection with their performances.
Now here are some things that I think the expert committee for the Copyright Bill need to address going forward. As any stakeholder in Nollywood will tell you, there is so much difficulty in getting financing either at the bank or accessing the Nollywood development fund at the Bank of Industry, not only because of the double digit interest rate, but also on the collateralization of copyright in the entertainment content being financed. While the drafters of this Bill have copied from the United States Copyright Act, they have failed to consider and incorporate Section 205 on recordation of transfers and other documents pertaining to copyright works into the Bill. Since Nigeria does not currently have one law that addresses, in whole, secured credit transactions (there are provisions scattered across different laws like Companies and Allied Matters Act for floating and fixed charge on a company’s assets, Conveyancing Act and Property and Conveyancing Law for real estate, etc.) unlike in the United States with the Uniform Commercial Code (particularly Article 9 on secured transaction on personal property), having a provision in the Copyright Bill which specifically provides for recordation of transfer of interests for the purpose of perfecting security interests or notification to third parties of any interest in copyright is very important. With this in place, the NCC will have, in addition to its register of copyright works, a register of transfer of interests required for such transactions like acquisition, financing, distribution and licensing including such documents like copyright mortgage, security agreement, certificate of authorship, assignment of copyright, short form acquisition agreements, license agreements, etc. Since any assignment or exclusive license of copyright work, not evidenced in writing, is ineffective (section 26 (3)), the drafters of this Bill will be helping stakeholders avoid confusion by providing such register which will help them determine, with ease, priority of assignees, licensees or financiers as well as any subordination of right in a situation where there are multiple assignments or licenses.
Secondly, on criminal liability of infringers (section 38 (7)), offenders will be subject to payment of fine of up to N1 million and/or imprisonment; however there is no provision on forfeiture of any proceeds including assets obtained as a result of infringing activities or confiscation of any infringing products. It appears that the drafters intend that copyright owners would likely pursue this as a civil action but having such in place will help copyright holders in their civil claims. It appears that the drafters have limited the forfeiture remedy to the situation where the infringer is a body corporate whose sole business is the act of infringement (section 40(4)). This may lead to technicality in court since oftentimes corporate entities engage in diverse businesses. In that case, the remedy should apply to all proceeds obtained from infringing acts including the business or its division. Moreover, Section 39 (1) on vicarious and contributing infringement (which occurs when someone aids infringement by others) needs to be expanded.
Thirdly, on the takedown notice provision, as noted above, Part VII is one of the provisions borrowed from the Online Copyright Infringement Liability Limitation Act (OCILLA), which is a conditional safe harbor for online service providers by shielding them from direct and indirect/secondary copyright infringement liability and as a part of the 1998 Digital Millennium Copyright Act (DMCA) provision of the US Copyright law. It is highly commendable that the drafters included this provision in the Bill; however they neglected certain issues. Infringement of copyright on an online platform covers not only the reproduction of such work without license on that platform but also every other use which is exclusive to the copyright owner, including distribution and transmission. In allowing online service providers to benefit from the “safe harbor” provisions like is provided under Section 512 of US Copyright Act, these providers must put adequate mechanism in place that shows that their systems are not set up to aid infringement.
Although the drafters adequately cover activities on their platforms like the residing of content on their system for access by users (section 51) and referring or linking users to online location which may contain infringing materials (section 52 – Information location tools), they missed other activities of service providers which may open them up to unnecessary litigation. Those missing activities in this Bill are what are provided under Section 512 (a) and (b) of the DMCA which anticipate infringement occurring as a result of transitory digital network communication (covering online transmitting, routing and providing connection through a system or network controlled by the service provider by reason of intermediate and transient storage of copyright material in the course of those activities) and system caching (covering intermediate and temporary storage of those copyright materials on a system or network controlled or operated for the service provider), which are the major parts of the operation of an online service provider
Imagine you trying to access Pandora, Spotify, NotJustOK.com, iroking.com or the video streaming site, YouTube. Some of these sites allow users to upload content to their sites and these sites also allow users to be able to access these content at any time through various devices. In doing that, the providers allow these content to be stored temporarily on these devices so users can easily access them. But in doing so, the providers need to ensure that certain conditions are met including that there is no modification of the content and that they comply with internationally accepted rules on refreshing, reloading among others. See Section 512 (b) (2) of US Copyright Act. Highly commendable is that while the US version only requires service providers to have a policy for suspension or termination of account of repeat infringers, this Bill provides guidelines for such suspension or termination (section 49).
Service providers must appoint a designated agent for them to enjoy the “safe harbor” provision. Although the Bill requires copyright owner to address takedown notice to a designated agent of the service provider, there should be a provision that requires service providers to provide contact information including physical address, email and/or link in order for copyright owners to contact them. While the drafters focused on commercial online service providers, they did not address applying the “safe harbor” rules to nonprofit educational institutions. Their position may be that Part II on fair use or special limitation of copyright may already cover this but having a specific provision regarding online content will avoid any confusion in the future.
Lastly, the provision of the Bill on levy on copyright materials (section 75) is worth more discussion not only among the drafters but also the stakeholders in the entertainment industry. It looks like the drafters are trying to incorporate the United States’ Audio Home Recording Act of 1992 (AHRA), not for the purpose of trying to distribute certain income which copyright owners and investors in the industry (e.g. music recording companies regarding costs of recording masters and distributing same or the film producers and studios with respect to the cost of film making, acquisition, distribution and licensing) may lose due to invention, manufacture and distribution of certain materials (e.g. DVD, Blu-ray discs, flash drives, and any other storage devices). At least that was the reason for the passage of that law in the United States in 1992 and it is only limited to digital audio recording devices and digital audio recording medium.
According to section 1001(3) of the US Copyright Act, a “digital audio recording device” is any machine or device of a type commonly distributed to individuals for use by individuals, whether or not included with or as part of some other machine or device, the digital recording function of which is designed or marketed for the primary purpose of, and that is capable of, making a digital audio copied recording for private use. Section 1001(4) defines a “digital audio recording medium” as any material object in a form commonly distributed for use by individuals, that is primarily marketed or most commonly used by consumers for the purpose of making digital audio copied recordings by use of a digital audio recording device. Digital audio recording device or medium will not include any other materials if it is shown that their primarily purpose is not to record music.
The provision on levy on copyright material, on the other hand, is very broad. There is no explanatory note here for us to determine what exactly the drafters are trying to achieve; perhaps the Nigerian legislature may be able to address this during its public hearing. In the Bill, “material” includes any object, equipment, machine, contrivances or any other device used or capable of being used to reproduce, or infringe copyright, in, a work. That is one wide definition of “material” which will include all and any object or device in this world. Does that mean that a computer, cellphone, television, radio, CD, DVD, Blu-ray, tablet and other PDAs, game console, printing machine and press, car radio and other devices manufactured or imported into Nigeria will now require a levy? If that is the case, there may be huge problems on how this “Fund of the Commission” (section 75(3)), subject to deductions, will be disbursed. The Bill provides that it will be distributed among approved Collective Management Organizations.
Currently, Nigeria has one recognized CMO while the other “unrecognized” one is still fighting for dear life. If the above holds, then what about other genres of copyright? Currently there is no CMO for other genres like artistic and literary works, except music while, as a matter of fact, there are many sub-genres of music and new CMOs representing these genres and sub-genres are likely to emerge soon. The drafters may not be able to address these at this phase but my view is to allow stakeholders in the industry to discuss how the levy on the copyright materials will be disbursed. I suggest that the Fund be disbursed to higher institutions of learning – particularly law schools and faculty, computer science labs and theater arts and motion picture colleges or schools – to facilitate research and study of copyright.
This is no doubt a great step in providing a more sophisticated institutional legal framework for Nollywood which will boost investors’ and stakeholders’ confidence in Nigeria’s intellectual property laws. I am excited for the great opportunities ahead and the judicial testing of this law in the Nigerian courts in the future.
Segun Aluko
