By; Hannah Kalejaiye-Olumolu
INTRODUCTION
Nigeria’s entertainment industry is a vibrant force, a fusion of cultural expression and economic activity. The film sector, known globally as Nollywood, and the pulsating rhythms of the Nigerian music scene, are not just platforms for storytelling and artistic expression but also significant contributors to the nation’s GDP. This Article delves into the crucial role of Intellectual Property (IP) laws in protecting the artistic works that define and drive these dynamic industries.
Nollywood and the Music Industry’s Struggle with Piracy
Piracy, within the context of Nigerian entertainment law, is generally understood as the unauthorized reproduction, distribution, or broadcasting of copyrighted works. It includes any form of duplication of copyrighted material for sale or free distribution without the permissive limits provided by the copyright holder. A copyrighted work refers to a form of creative expression that is fixed in a tangible medium of expression and is protected by copyright law. This protection is granted to original works of authorship, including a wide range of categories such as literary works, musical works, motion pictures, sound recordings, and other audiovisual works. To be protected by copyright, a work must be original, meaning it is independently created by the author and possesses at least some minimal degree of creativity. It must also be “fixed,” meaning it is captured in a sufficiently permanent medium so that it can be perceived, reproduced, or communicated for more than a transitory period.
Copyright protection typically arises automatically upon the creation of the work and its fixation in a tangible medium, without the need for formal registration. However, registration can provide additional legal benefits, including the ability to bring infringement suits in court and potential statutory damages for copyright violations and enforcement.
The protection of a copyrighted work includes the exclusive rights to reproduce the work, prepare derivative works, distribute copies, and perform or display the work publicly, among others. These rights allow the copyright holder to control how the work is used and to seek remuneration for its use by others.
A copyright holder, also known as a copyright owner, is an individual or legal entity that possesses the exclusive rights to a copyrighted work. These rights typically include the authority to reproduce the work, prepare derivative works based on the original, distribute copies of the work to the public, perform the work publicly (in the case of plays, dances, or music), and display the work publicly (in the case of paintings, photographs, or any other visual art forms).
The “Living in Bondage” Saga:
The release of “Living in Bondage” in 1992 marked the birth of Nollywood but also underscored the industry’s vulnerability to piracy. The film’s success was overshadowed by a loss of control over its distribution, with pirated copies flooding the market and significantly diminishing potential revenue. The experience of “Living in Bondage” brought to light the need for robust copyright protection and enforcement. It became clear that without effective mechanisms to combat piracy, the industry could not sustain itself or support its creators financially. Less than two decades later, in 2020, the sequel to the very same movie was leaked online shortly after its cinematic release, leading to a significant potential loss in box office revenue.
Despite being one of the highest-grossing Nigerian film series, “The Wedding Party” and its sequel were heavily pirated. The filmmakers took to social media to raise awareness and discourage the purchase of pirated DVDs. “October 1st” the historical drama by Kunle Afolayan faced piracy issues when copies of the film appeared in local markets just days after its cinema release. Afolayan publicly addressed the issue, emphasizing the detrimental impact of piracy on the industry. The comedy film, “30 Days in Atlanta” which set box office records in Nigeria, was also a victim of piracy. Numerous pirated copies were found being sold in markets, which led to legal action by the producers to curb the distribution of the illegal copies. Ayo Makun, popularly known as AY, who produced the movie, petitioned the Nigerian Inspector General of Police (IGP) to use his machinery of office to identify and bring to book those involved in the piracy of the movie.
As you walk the streets of Alaba (a popular market in Lagos, Nigeria), you are bound to come across an affordable DVD of some of the industry’s popular and high-release movies. Some of these pirated DVDs may even offer you the option of viewing multiple movies that have been burned into one DVD. Some might call this the miraculous 1+3 special.
The Music Industry’s Battle for Rights: Copyright Infringement in the Digital Age
The advent of the internet and digital platforms brought about new challenges for the Nigerian music industry, like any other in the world, and even the movie industry. While the reach of Nigerian music has expanded globally, this has been accompanied by a surge in piracy, with many artistes seeing their work distributed without consent or proper compensation.
Nigerian musicians, much like their counterparts in other parts of the world, face a range of intellectual property rights issues that impact their ability to monetize their creations and secure their legal rights. Some of the notable issues include:
- Royalty Collection and Distribution: Nigerian artistes have often struggled with receiving fair compensation for the use of their music. The system for tracking usage and distributing royalties has historically been inefficient, leading to disputes and artistes not receiving their fair share.
- Copyright Infringement: Unauthorized use of musical works, including unauthorized sampling, covers, and remixes without permission or proper licensing, is a common problem. This includes the widespread piracy of music through illegal downloads and sales of counterfeit CDs and MP3s.
- Digital Piracy: With the rise of the internet, digital piracy has become rampant. Artistes find their music shared on peer-to-peer networks, streaming websites, and social media platforms without their consent.
- Lack of Legal Knowledge: Many artistes do not have a firm understanding of their intellectual property rights and may inadvertently sign away their rights or fail to take action when their rights are infringed upon.
- Contractual Disputes: Disputes over contract terms with record labels and management can lead to issues with rights ownership and control over the use of an artiste’s music. Some artistes have been locked into unfavourable contracts that limit their creative control and financial returns.
- Performance Rights Issues: Ensuring that artistes are compensated for live performances and broadcasts of their music can be problematic. Issues arise in enforcing these rights, particularly when music is played in public venues or on the radio without paying appropriate royalties.
- Infringement on Digital Platforms: The use of music on platforms like YouTube and TikTok has led to new challenges in ensuring that artistes are appropriately credited and compensated when their music is used as background for videos or other content.
Within the Nigerian music scene, it’s not uncommon for issues of copyright infringement to be overlooked. However, on November 22, 2023, an interesting turn of events took place in the Nigerian and South African music industries. Sometime in October, Smada, a Nigerian artiste formerly with the NATIVE record label, released a song titled SMADA EH featuring another popular musician, commonly known as Poco Lee. Even before the song was released, there had been massive outrage among Nigerian and South African fans of another artiste commonly called Deep London, as they claimed it was a remake of his song HAMBA WENA. However, although Smada still performed the song as recently as December 2023, SMADA EH has been removed from all digital music platforms.
Is it Yours or Not?
The general conception is that to be a Copyright holder, the artistic work must have been created by the author. While this is true, there are other ways to become a copyright holder. Copyright holders can transfer their rights to others through mechanisms such as licenses or assignments. The recipient of these rights becomes the copyright holder for the scope or duration specified in the agreement. Copyright can also be inherited by heirs upon the death of the original copyright holder, thus transferring the ownership rights to the beneficiaries according to the will or by laws of intestacy.
The identity of the copyright holder can sometimes be complex, especially in collaborative works, works involving multiple contributors, or works created under contract. Determining who holds copyright may require an examination of contracts, employment relationships, and other legal agreements. Certain actions like sampling and interpolation also cause complex issues on copyright ownership.
However, the law is clear. To copy someone’s work without their permission is copyright infringement. The moment you use and commercialize someone’s creation, it’s an infringement. The only exception in the Nigerian Copyright Act 2023 is in cases of fair use i.e. you do not require express permission to footnote their work in writing your thesis or news articles.
The Landscape of Entertainment and IP Laws in Nigeria:
Navigating the complex terrain of intellectual property (IP) laws in Nigeria requires an understanding of the legal regime governing the creation, protection, and enforcement of rights in artistic works. With a legal framework that has evolved over the years to address the unique challenges of the digital age and the surge in creative output, Nigeria’s commitment to upholding the rights of artists and creators is reflected in its statutes and regulatory bodies. The current legal landscape on the entertainment sector’s intersection with IP laws and the mechanism in place to safeguard those laws include;
- Copyright Act 2023 (which repeals the Copyright Act Cap C28 Laws of the Federation of Nigeria 2004): The centrepiece of Nigeria’s artistic protection is the Copyright Act which confers exclusive rights to creators regarding the use, reproduction, and distribution of their works. The Act provides a framework for creators to control how their works are used and to seek remuneration for such use.
- The Nigerian Copyright Commission (NCC): The NCC is tasked with the enforcement of copyright laws. It not only engages in punitive measures against infringement but also educates the public and mediates disputes. The effectiveness of the NCC is pivotal to the livelihood of creators and the integrity of the industries.
As the Nigerian entertainment industry continues to flourish, it is faced with several challenges that, if left unaddressed, will ultimately threaten the growth of this vibrant industry.
Protecting Artistic Works in Nollywood and the Music Industry
The vitality of Nigeria’s Nollywood and music industries hinges on the effective protection of intellectual property. Artistes and their managers must become more intentional about protecting artistic works in these industries. It is also important that legislative reforms occur on IP laws and regulations.
Register your Artistic Work: Artists and their managers should prioritize registering their works with the Nigerian Copyright Commission to establish legal ownership and secure exclusive rights.
Utilize Strong Contractual Agreements: Strong contractual agreements are essential in safeguarding the rights of individuals and entities involved in the creation, production, distribution, and exploitation of artistic works.
Education and Public Awareness: More people in the Nollywood and Music Industry need to be aware of their IP rights. They also need a better understanding of copyright information including how to use copyright and transfer of the same.
Anti-Piracy Measures: Collaborative efforts between government agencies, the entertainment industry stakeholders, and law enforcement are crucial to combat piracy.
Digital Rights Management (DRM): As the world has fully gone digital, Nigeria needs to catch up by implementing DRM technologies which can help control access to digital content, thereby preventing unauthorized copying and distribution.
The Role of Collective Management Organizations (CMOs) like SOCAN and COSON: CMOs are instrumental in managing copyright on behalf of artistes. In Nigeria, organizations such as the Society of Nigerian Artistes (SONA) and the Copyright Society of Nigeria (COSON) have been pivotal in tracking the use of artistic works and administering royalty payments. Their efforts have led to more structured royalty systems and increased compliance from users of creative content.
In conclusion, the protection of intellectual property in Nigeria’s vibrant entertainment industry is multifaceted, involving the enforcement of copyright laws, the registration of artistic works, and the utilization of strong contractual agreements. While challenges such as piracy and infringement persist, the strategic application of legal frameworks and proactive measures can significantly bolster the defense of creators’ rights, ensuring fair compensation and fostering a culture of respect for original content.
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Hannah Kalejaiye-Olumolu is an Associate of the Firm in the Technology, Entertainment and Agriculture (TEA) Law Practice Group.
