Is Nollywood ready for the AI disruptions?

Introduction

One of the main themes of question set out to analyze or answer in this piece is whether with the inevitable intervention in the legal and cinematic space of the film industry (my focus-case analysis) by Artificial intelligence, the Nigerian film industry (Nollywood) has the overall infrastructural-socio-legal capacity to adapt to this reality. I argue that with the New Nigerian copyright law in place Nollywood can adapt but there needs to be a national and legal policy initiative, which is within the forte of the Nigerian copyright commission (NCC). 

A new creative dawn

In my recent article here, I stated the benefits and advantages of the new Nigerian copyright law- its recognition and protection of digital copyright practices of creatives. Digital copyright is essentially the interconnectedness of technological interventions in the creative processes within the literary, artistic, performing, scientific and cultural productive works. Artificial intelligence (AI) is a technological intervention, which has disrupted the creative spaces. In the film industry globally including Nigeria, the impact of AI interventions in the creative productive modes are apparent. AI and computer programs-software have improved not just the aesthetic feel of films but it has enabled informational, entertainment, educational and entrepreneurial objectives of creators. It has also become a legitimate legal tool for creators to protect, promote and enforce their copyright and other intellectual property rights. Counterfactually, AI has become a worrisome human intervention not only in the creative spaces but in the national security structures of countries, personal safety of people, health care sectors and social-moral Order of societies.

A parable of horrible or a realism?

The emergence of AI, particularly the various generative AI tools, which produces audio, images and literary content-ChatGPT, Bard and Dall-E have upturned the creativity spaces. There is no doubt these technologies have beneficial purposes. For example, in the healthcare industry, technological devices powered in AI have been used to diagnose complicated illnesses in remote  parts of the world who have no human medical experts and without economic access to such needed services.

However, like every new technology, AI generates fear, risk and dangers to humanity. The unknowns, lack of consistent regulatory framework and consensually accepted legal regimes have impelled the public’s anxiety about the impact of AI on all facets of life. Who will be responsible in the event of a mishap caused by an AI? That question continues to blow in the wings. Although, the legal AI movement have made cases for the legal recognition of AI as owners and authors of creative-innovative- artistic, literary, scientific and technological outcomes (inventions, devices, or works), almost all intellectual property laws particularly, patent and copyright recognize only human person(s) as owners or authors. AI as an inventive or a creative process (works) are protected by IP as either a scientific, literary (because of the software-computer programs interrelationship).

The most apprehensive features of AI for the film industries of the developing economies of the global South may be the reality and concerns of loss of jobs particular within the lower cadre of creative productions. Artists and downstream creatives like graphic artists, camera persons, make-up artists and auxiliary performers within a production crew are at certain risk of losing their gainful employment. Nollywood will feel this reality too and soon.

Nigerian copyright law may spur Nollywood’s AI reach

AI does some good in the film industry. Creatively, AI is deplored in protecting authorial and ownership rights particularly in the digital platform. For example, Google has been using AI like its Google Content ID and translation tools to enforce creators' distributive and reproductive rights through taking down infringing contents and making cinematic contents understandable outside the original language used in producing films. These AI filters have gone a long way to ameliorate cases of copyright infringement of audiovisual contents on the Internet spaces. Although there exist contrary views as to the benefits of these digital creative filters to creators, perhaps it would have been a free-ride bonanza without the help of AI.

The Nigerian Copyright Commission (NCC) could get ahead of the AI generative and assistive movement by using its administrative law powers under the new copyright regime to make rules and set norms on how it may support creativity around the AI generative and assistive input-output of works. Even in the Nollywood industry AI has been deplored in its creative productions. The animations and voice-over features in recent Nollywood films are all enabled by AI. What the Nollywood industry needs now is the scaling of its use of AI and its involvement in the entrepreneurial side of being investors in generative AI especially for creating cinematic works. From my research and studies as a Nollywood legal scholar, it has the ingenuity of creating and evolving within the technological disruptions. Afterall, Nollywood is a child of disruptive technology of the early 1990s.

Nigerian copyright law protects AI as a literary work from being used without the creator’s permission (except where legal exceptions like fair dealing or fair use applies), being mostly created through software coding, computer programs and algorithmic creations. Perhaps, other intellectual property (IP) laws like Patents may protect AI from infringements too. However, AI standing alone cannot own any IP rights under Nigerian law and in most parts of the world. AI impact on creativity and its jurisprudence is inevitable therefore, rail guards for managing, regulating and promoting cultural creations like Nollywood should be optimal for stakeholders in Nigeria.

Putting the rail guards

Intellectual property laws have adopted tortious, contractual and criminal regimes holding accountable parties that have engaged in offensive and illegal inventive and creative ways. In the creative platforms and spaces, IP reached out to the law of tort to hold primary and secondary infringer’s of rights contributorily liable for their actions. Parties have also been held criminally responsible for conduct contrary to IP regimes and the same template applies where contract law is applied so that infringers of IP rights do not escape responsibility. In the era of AI and IP creative nuptials perhaps a sui generis category strict liability regime may be needed in cases of high-impact infringement of IP rights.

It appears that legal liability on an AI may be difficult if not impossible to achieve. AI being a machine or non-human entity may not fully appreciate the consequences of any forms of legal, social or economic damages it would have caused to a victim or respondent. Therefore, holding the creators or owners of an AI may be the first place to lay responsibility. NCC could insert this secondary or contributory liability standard into a regulation or promote it as an amendment into the Nigerian copyright law. This is a new norm for the purposes of regulating AI in the Nigerian creative industries.

* S. Samiái Andrews © 2023. Professor Samuel Samiái Andrews is a Professor of Intellectual Property Law, and USA Ambassador’s Distinguished Scholar writes from Saudi Arabia.

 

 

 

 

Dark October: why intellectual property may not protect nor shield your grief

 #darkoctober #nollywood #nigeria #copyright #intellectualproperty #privacyrights

*Samuel Samiai Andrews ©

Recently a Nollywood movie, ‘Dark October’ produced by Linda Ikeji, depicting a true life event that occurred in South-South Nigeria some years ago became a subject of controversy and emotional public commentary. The movie depicts a tragic true-life event, which happened in Aluu, a community in Rivers State of Nigeria. Four students of a university were murdered by a group of community vigilantes. Reports claim that the families of the victims of the killing objected to the release of the movie because of the sensitivities involved and the exacerbation of existing grieve. The controversy centered on fact that the producers of the movie did not get the consent of the victims’ families before releasing and or producing the movie. Although, principal thematic focus of my research focuses on how the film industry of the Global South should take advantages of (digital) copyright to impel its entrepreneurial, creative and economic rights’ growth. The counterfactual thematic bent of this piece is one of the exceptions where the lack of a law indirectly becomes advantageous to the filmmaker in the emerging digital industry. 

Nollywood’s continuous trodden path signals an emerging economic force. Therefore, its vision and trajectory of achieving effective outcomes for stakeholders demand proper understanding of the legal and economic contours for success. I am using the movie, Dark October, as a take-off point for illuminating an unexplored but significant connecting dot of socio-legal fundamentals of a successful film industry. Copyright does not protect ideas, emotional-social rights, news events and civic commentaries. A legal scholar, Andrew Gilden, published an informative and educative paper on why intellectual property law may not be suitable for protecting images, likeness and privacies of deceased love ones. I have attempted in this article to continue the discussion on the death-copyright theme by narrowing my focus to the making of a Nigerian movie that depicts a tragic event, which memories could aggravate the grief of victim’s families.  

Grieving and lP

This piece focuses on the discussions among Nigerian intellectual property (IP) practitioners, and enthusiasts, on how IP regimes particularly copyright may intervene to regulate, protect and enforce the rights of victims in event of death. Losing a family member in a gruesome or natural circumstance evokes complex emotions and hurt. Therefore, recreating the events that led to such death may heighten pains and irreparable emotional harm to the grieving family. On the other hand, creators like Nollywood filmmakers have statutory rights to make films about current affairs, news events and societal commentaries. In fact, filmmakers have some may even argue, constitutional rights to express themselves creatively. The creative rights guaranteed by Copyright laws and other IP regimes struggle to balance its significance with socio-moral obligations at large.

In my legal research work around the subject of Nollywood and copyright jurisprudence, particularly the paper, Reforming Copyright Law for a Developing Africa, I had concluded after empirical and doctrinal work that the Nigerian copyright law, though robust lacks the bite to support a cinematographic industry of the digital era. Hopefully the recently enacted amended Copyright Act 2023 (Nigeria) will bring that bite for creators’ right security. In another recently published paper, Developing a Copyright Curriculum for Nigerian Universities for the Creative Digital Space, I also reiterated the need for Nollywood and the supporting creative institutions, including the academia, to rethink their growth strategies beyond legal defensive and enforcement tools, to include knowledge capacity for its stakeholders-filmmakers and public audience and non-litigation tools. Why? because the fast pace entrepreneurial incidences of a creative industry of the digital era abhors time wasting and distractive commercial disputes. Nigerian creative industries including Nollywood should enhance the adoption of transactional alternative methods of reducing social and economic conflict resulting from filmmaking.

Other IP regimes that may come into discussion are moral rights and trademark. Under the Nigerian new copyright law moral rights protect paternity (attribution) and integrity (reputational) of a creator’s work. The creator of a work has the moral right to object to derogative, corruptive and mutilative handling of his-her work. The creator of a work also has the right to demand that her work be attributed to her. Facts available in public domain does not show that the victims of the unfortunate events in Aluu were creators of that event that led to their untimely passing. There’s no derogatory usage of their creations depicted in the movie. Therefore, the issues of moral right seem remote in the scenario. Is trademark right implicated in the Dark October controversy? probably not! Trademark could have been implicated if members of the public are potentially confused in connecting the names or images of actors in the movies with the names or images of the deceased depicted in the movie (if the deceased images were registered trademark).

Filmmakers’ obligation

In other climes attempts have been made to extend the traditional objectives of IP beyond rewarding creativity economically, making information available to the public for further derivative creative works, to a  shield to enforce privacy rights and other unrelated innovative and creative endeavors. So far in the human-experience related cases, the courts have been reluctant to accept the sword or shield posture of copyright law for those who assert it. Mostly because of the defense of fair use or fair dealing or the statutory exceptions, limitations and exclusions, which the law grants as a defense to copyright infringement. Fair dealing, as it is known under Nigerian law are statutory defenses available to anyone who may be accused of infringing on other’s copyright. Reportage and commentary on news events are captured under the fair dealing excuses.

The screenplay in Dark October translated and highlighted a news-event. This film may be regarded as a commentary on societal ills. The creativity that birth this film comes from the copyright author-owner. In a cinematographic creative work, the Nigerian law describes the copyright author-owner as the person who makes the arrangement, probably funding and bringing to virtual life the outcome that the public accesses. Can the families of the deceased exercise legal rights under the Nigerian law to prevent the release or production of Dark October? Probably not, and legally unlikely. However, issues of grieving a loved one cannot be put on a straight jacket because only the deceased families know the extent of the hurt.

Succor outside the law

IP law is not set up to cure such emotional complexities arising from death. Privacy laws like image rights or publicity right could have availed the deceased families if actual images (photographs) of the deceased and their private life or confidences were raised in the movie. In this case, Dark October has not put the deceased images in bad light, nor used their images in any untoward manner. I do not find where the deceased names or likeness are exploited for commercial value by the producers of Dark October. The commercial exploitation of names or likeness of someone forms the classic spheres of publicity right laws. Publicity and image rights laws doesn’t protect issues of current affairs or news events.

How do filmmakers avoid conflict or bring succor to victims of societal malaise and their families when their creativity tends to collide with people’s right to grieve? Transactional negotiation skills could be one of the ways to ameliorate any hiccup in the release or production of a creative work like a movie, particularly where legal remedies seem remote. Offering the deceased family as in the Dark October scenario tangible succor like dedicating the film to the deceased and including their names on the film acknowledging list of contributors, setting aside a part of the profit from the movie to promote any social-charity causes the deceased were associated with in their life time or setting up a memorial to honor the deceased after consultation-agreement with their families are some of the alternative route to soothe a grieving family in this circumstance. Afterall IP isn’t just for monetizing creativity or innovation but also for promoting utilitarian causes and societal good.

© Dr. Samuel Samiai Andrews (SJD), Professor of Intellectual Property Law*

Nollywood could see a major boost from Nigeria's new copyright law...

 https://theconversation.com/nollywood-could-see-a-major-boost-from-nigerias-new-copyright-law-an-expert-explains-why-200507 

Nigeria has finally updated its 2004 copyright law, bringing it into the digital era – where the entertainment industry has been for decades already.

Before the late 1990s, it was difficult even to get telephone services in Nigeria. And it was very expensive for private enterprises to make films. Since then, digital technology has unleashed a multitude of ways to receive information and entertainment.

With the arrival of digital technology, all a filmmaker needed was a simple video recorder and a group of talented creatives. Thus modern Nollywood – the Nigerian film industry – was born.

Nollywood employs more than a million people directly or indirectly, making the sector Nigeria’s second largest employer after agriculture. In 2022, Nollywood’s contribution to Nigeria’s GDP stood at 0.1%. It’s Africa’s most successful film industry and the third largest globally after Hollywood and Bollywood in terms of the number of movies produced annually.

But Nigeria’s copyright regime lagged behind the industry’s technological and business developments. The biggest issue was piracy, that it was easy to copy and sell other people’s work without their consent. The courts found themselves with new intellectual property problems to deal with and it was clear a new copyright regime was needed.

The new copyright law make provision for the digital rights of Nollywood creatives. 

I have spent much of my career researching copyright law in Africa and the connection between copyright and the economic growth of Africa’s creative industries – films, fashion, music, literature and others.

I have written specifically about Nollywood, arguing that it needs a new copyright regime if it is to thrive. And I have researched the kind of copyright curriculum that law schools in Nigeria need in order to make the amended copyright law effective in growing its creative industries. My research supports the idea that Nigeria should deliberately include digital copyright regimes in its laws and strengthen the institutions that put them into effect.

And the new copyright law in Nigeria does fill gaps. Nigerians will now have a legal regime that can protect their creativity within the technological space. The new law will be useful to combat online film piracy and loss of revenue from the illegal use of copyrighted works.

The new law has the potential to create stability and predictability in industries like Nollywood. This is a positive step towards a more diversified national economy – and economic growth.

But it will be important to allow the courts to do their job. Trying to settle disputes through the Nigerian Copyright Commission – which is a new option – could complicate and prolong the litigation. That might discourage investment in the creative industry.

Key benefits of the new law

Nigeria’s new copyright law recognises and protects creative works that are based on current digital productive technologies. It covers films, music, performances, literary works and performances enabled by the internet and wireless devices through streaming techniques, uploads, hyperlinks and air-drops.

The law now provides anti-circumvention devices. It is now a copyright infringement to illegally circumvent a computer program, software or a technical protection measure created to protect a copyrighted work. Film piracy is both a criminal offence and a civil wrong, with severe punishment and consequences. This now applies to new forms of online film piracy too.

The new copyright law also includes a “safe harbour” provision which protects Nollywood entrepreneurs from unnecessary legal suits. For example, online service provider business is an emerging technology that requires huge investment and is vulnerable to illegal actions. People upload unauthorised content on an online platform and this can result in lawsuits which affect investors in this sector. The safe harbour comes with responsibility on the part of the online service provider: it must quickly remove unauthorised content and must not benefit financially from it.

The new law gives copyright owners ways to resolve disputes over ownership of online content without necessarily going to court.

Five other new aspects

The new law has five more aspects that will help sustain the creative economy and promote access to knowledge and education.

1. Alternative dispute resolution system. This mechanism can be used to settle issues surrounding creative rights within contemporary digital platforms. The process will be organised by the Nigerian Copyright Commission, the regulator.

2. Register of works. Creators are required to register their created works. Although creators of works like Nollywood films automatically own their copyright, the register – if well executed – may help with rights management and be a resource for potential investors in the industry.

3. User generated content. When you take a photo of yourself and upload it on platforms like Facebook, YouTube, Instagram or TikTok, what you have done is upload content on an online service provider. You may have copyright over that content. The new copyright law clearly defines your rights and regulates infringement of such rights.

4. Copyright exceptions. Sometimes a copyrighted work can be used without the copyright owner’s authorisation. The new law seems to take the approach that the public has a right to use a copyrighted work if it’s good for society. For example, anyone can use a copyrighted work for educational purposes – to teach in a classroom, for news reporting, criticism, or parody. People can also use the underlying idea in the copyrighted work (ideas aren’t protected by copyright) to create a new, “derivative” work.

5. Copyright management organisation. Another new aspect is that regulators can appoint more than one copyright management organisation to serve a specific class of creative work. This will potentially further liberalise and democratise creativity.

The cautions

Laws ought to be effective in action. If the new law is to benefit Nollywood and other digital industries, government institutions and policies will need revamping.

The Nigerian Copyright Commission should use its new administrative powers carefully. It should be sensitive to the fact that only the courts can judge disputes of property rights.

The commission must stop licensing only one collective management organisation per creative category. Currently, for example, in the musical works category the commission has granted only one copyright management organisation the licence to collect royalties on behalf of creators. This has resulted in court battles for sole control over royalties. If the commission makes rights management more competitive, there may be less tension in the sector. Creatives should have more choice.

Nigeria will also need to pay more attention to training experts with knowledge of the digital era laws. The university creative and legal curriculum needs reform along with the new law.

If the new law is to benefit Nollywood, it will have to be properly implemented.

Why this matters

The updated Nigerian copyright law recognises how a contemporary creative system can encourage investment in the Nigerian film industry.

• GDP
• Intellectual property
• Alternative dispute resolution
• Nigeria
• Digital copyright
• Film industry
• Nollywood
• Online copyright
• Intellectual property rights
• Movies
• Creative work
• Fair dealing
• Copyright law
• Litigation
• Copyright infringement
• Nigerian film
• New Nollywood