Unpacking the Intersectionality of IP Limitation Jurisprudence and The Marrakesh Treaty-Ethiopia & Nigeria

 

Unpacking the Intersectionality of Intellectual Property's Limitation Jurisprudence and The Marrakesh Treaty: Disabilities and Expressions in Copyright- Ethiopia, Nigeria & USA” Presentation of Paper at 2nd IP & Innovation Researchers of Asia Conference & Workshop for IP Teachers and Researchers, Fakultas Hukum, Universitas Indonesia, February 27-29, 2020. #IPIRA2020

https://youtu.be/frOzdj4ZBTQ?si=Mm1dYV0qcTKAhn5H 

*Jack Smith's October Surprise was not that Surprising...

*This piece is culled from Adversarial Process or Oppo Research? Judge Agrees To Release More Trump Material Before the Election – JONATHAN TURLEY

 *© Jonathan Turley © states:

"Below is my column in The Hill on the release of the filing by Special Counsel Jack Smith just weeks before the election. Even Judge Tanya Chutkan described the move as “irregular,” but still ordered the release. While the usual voices heralded the move, others, including the CNN senior legal analyst, denounced the release as a raw political act by the court and the Special Counsel. The problem is that it was not in the least bit surprising.

Here is the column:

“The most stupendous and atrocious fraud.” Those words from federal prosecutors could have been ripped from the filing this week of Special Counsel Jack Smith defending his prosecution of former President Donald Trump.

Yet they were actually from a Justice Department filing 184 years ago, just days from the 1840 presidential election. Democratic President Martin Van Buren was struggling for reelection against Whig William Henry Harrison, and his Justice Department waited until just before voters went to the polls to allege that Whig Party officials had paid Pennsylvanians to travel to New York to vote for Whig candidates two years earlier.

It was considered by many to be the first “October Surprise,” the last-minute pre-election scandal or major event intended to sway voters.

To avoid such allegations of political manipulation of cases, the Justice Department has long followed a policy against making potentially influential filings within 60 or 90 days of an election. One section of the Justice Department manual states “Federal prosecutors… may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.”

Jack Smith, however, has long dismissed such considerations. For years, Smith has been unrelenting in his demands for a trial before the election. He has even demanded that Donald Trump be barred from standard appellate options in order to expedite his trial.

Smith never fully explained the necessity of holding a trial before the election beyond suggesting that voters should see the trial and the results — assaulting the very premise of the Justice Department’s rule against such actions just before elections.

After the Supreme Court rendered parts of his indictment against Trump presumptively unconstitutional, Smith made clear that he was prepared to prosecute Trump up to the very day of his inauguration.

True to his reputation and record, Smith refused to drop the main allegations against Trump to avoid official decisions or acts that the court found to be protected in Trump v. United States. Instead, he stripped out some prior evidence linked to Trump’s presidency, including witnesses serving in the White House. Yet the same underlying allegations remain. Smith just repeatedly uses references to Trump as acting as “a private citizen.”

It is like a customer complaining that he did not order a Coke and the waiter pouring it into a Mountain Dew bottle and saying, “Done!”

Smith even refused to drop the obstruction of official proceedings, despite another recent Supreme Court decision (Fischer v. United States) rendering that charge presumptively invalid.

Smith is making his case not to Judge Tanya Chutkan, but to America’s voters. Chutkan has consistently ruled with Smith to help him expedite the case. She permitted his hastened “rocket docket” despite declaring that she would not consider the election schedule as a factor in the pace of filings or even of the trial itself.

For critics, Judge Chutkan has proven far too motivated in the case. Indeed, many thought that she should have recused herself given her statement from a sentencing hearing of a Jan. 6 rioter in 2022. Chutkan said that the rioters “were there in fealty, in loyalty, to one man — not to the Constitution.” She added then “[i]t’s a blind loyalty to one person who, by the way, remains free to this day.” That “one person” was then brought to her courtroom for trial by Smith.

In their latest move, Chutkan and Smith used the Supreme Court decision to file a type of preemptive defense — an excuse to lay out the allegations against Trump in a 165-page filing filled with damaging accounts and testimonials against Trump, just weeks ahead of the election.

Even Chutkin herself acknowledged that Smith’s request was “procedurally irregular,” but she still allowed it. This was a premature exercise that would ordinarily occur months later, after defense filings. She could have scheduled such filings just a few weeks from now. She could have easily kept the filing under seal to avoid the appearance of political machinations. But the political effect appears to be the point. Chutkin again selected the most politically impactful option, at Smith’s urging.

This was so “irregular” that ordinarily anti-Trump legal analysts, such as CNN’s senior legal analyst Elie Honig, denounced Smith's filing as “an unprincipled, norm-breaking practice.” He added that “Smith has essentially abandoned any pretense; he’ll bend any rule, switch up on any practice — so long as he gets to chip away at Trump’s electoral prospects.”

Others, as expected, applauded the filing as not just well-directed but well-timed. Smith was making his closing election argument to voters because he knows that the 2024 election will be the largest jury verdict in history.

If voters reelect Trump, then neither Chutkin nor Smith will likely see a jury in the case. This is why they must convict Trump now in the public eye, or else admit to an effective acquittal by plebiscite.

Their timing could well backfire. The weaponization of the legal system is central to this election, including the role of the Justice Department in pushing the debunked Russia-collusion allegations from the 2016 race. For many, the content of Smith’s filing is not nearly as important as the time stamp over the case caption. Titled a “Motion for Immunity Determination,” it seems more like a “Motion for an Election Determination.”

Smith’s raw political calculation should be troubling for anyone who values the rule of law. None of this excuses anything in these allegations against Trump. But the most disturbing part of Smith’s October Surprise was that it was not in the least bit surprising.

©Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. USA.

Cybercriminology, Intellectual Property Rights, Culture and The New Millennium Crimes: Traditional African Restorative Justice Jurisprudence as a Guide

 Intellectual Property & Justice- Series!                                                                                                                                   ©️Samuel Samiai Andrews*                            

With the advent of Artificial Intelligence Systems with its assistive, predictive and generative outputs capabilities, the criminal infringement of intellectual property rights and its intersection with criminal justice, cybercrime and criminology have increased within the online spaces and offline. The significance, regulatory, and jurisprudential breadth of contemporary  socio economic and geopolitical infrastructures have been part of the heightened concerns and public policy discourse in recent academic and real life fora. This paper (article) continues these discussions with particular focus on examining and analyzing how IP’s criminal regimes have been implicated in the evolving unknowns of AI and the significant role IP jurisprudence can culture and mitigate “the parable of the horrible” associated with the AI protagonists and non-friendlies. This paper will further examine how criminological tools like victimology, restorative justice and retributive justice, particularly its indigenous genre from Sub-Saharan Africa, could offer a template to mitigate AI and IP crimes.

*     ©️Samuel Samiai Andrews

*Professor  Samuel Samiai Andrews is a U. S. Ambassador’s Distinguished Scholar, Professor of Intellectual Property Law & Adjunct Professor of Criminal Justice & Cybercrime & Legal Environment of Business (Business Law). The publication of  the full paper on this theme is forthcoming.

How Nigeria’s Seki Dance has redefined Performance rights of the indigenous Peoples

 

How Seki dance has redefined performance rights of indigenous people (thecable.ng)

                                                                                                               *S. Samiái Andrews                   

 

Abstract

The African indigenous creativity is being digitally enabled for entrepreneurial capacity and for the Artificial Intelligence era.The global IP community for more than 30 years now has been struggling with how to legally recognize culture, folklore, traditional cultural expressions and traditional knowledge with an intellectual property-like protection or some formal type of legal protection. However, after the signing of the Beijing Treaty on Audiovisual Performance (BTAP) in 2012 and its accession by majority of the WIPO Treaty nations-dance, audiovisual actors, and other forms of transient creativity and creations have been recognized as performance, that attracts IP protection. The protagonists of these works are now regarded by law as performers, whose works now attract IP protection. The performance of their works on audiovisual platforms and spaces (a creation of the digital era) has also been recognized by the new jurisprudence including that of Nigeria.

In my earlier published work on the thematic perspectives in communal creativity theme in a publication of the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO), I began a conversation on how cultural works and heritages of the global South (Nigeria) especially the Nollywood contents can maximize the potentials of its unique cultural heritage and economically maximize its cultural creative assets for upscale and monetized models. In this piece, I am continuing that conversation, using Seki Dance, which has already adopted the audiovisual tool to maximize the deep cultural assets of the indigenous peoples of South-South Nigeria, as a tool for enhancing tourism and also enabling national economic policy of revenue diversification.

Introduction

Within the current trends among nation States of the global South to diversify their national economic revenue streams, for example the nations of the Gulf Cooperative council (GCC) of Saudi Arabia, UAE, Qatar, the BRIC-Brazil, Russia, Russia, India, China and South Africa- nation states from the extractive industrial economies to the creative-innovative streams and tourism, this article examines and analysis how Nigeria ought to empower its indigenous cultural creative industries. Africa is endowed with rich and distinguished indigenous creative assets in the artistic, literary and scientific fields. Most of these creative works and innovations are innate to African heritage. In Nigeria, most of the indigenous creativity have been elevated to global and entrepreneurial rank because of the aid of digital technology and the enablement of contemporary digital era creative jurisprudence. This short piece will further examine how Seki dance, an indigenous traditional and cultural creative works of the peoples of mostly the  Okrika  and other ethnic nations of Ijaw of the Niger Delta Geo-political space in present day Rivers State in Nigeria, reinforces the clarion call and postulations among IP scholars and culture scholars that folklore, traditional cultural expressions and traditional knowledge  of the global South deserve global legal recognition like other forms of intellectual property that originates from the global North.

Indigenous Creativity of Traditional Societies

In a published work I authored recently, I analyzed how the Beijing Treaty on Audiovisual Performance  (BTAP) has recognized partially the need to recognize the creative rights of performers, including cinematic actors, theater artists, cultural dancers, and skit makers in the digital space or real time physical stages. These groups of creatives are performers according to current intellectual property jurisprudence.  A Seki dancer may be a performer, actor, and copyright author or copyright owner based on current creative regimes. Just like any artistic creation, ownership of the copyright in Seki dance performances and works is regulated by copyright law.

In Nigeria, her law adequately has set out who may be a copyright author and or owner of Seki dance creations. The moral rights of Seki dance performers have also been recognized, although not adequately as some of us IP scholars of the global South demand. These legal rights are now legally tangible. Gladly, the BTAP has become part of the creative laws of most countries of the global South including Nigeria. The Beijing Treaty, including the Nigerian copyright law have defined and covered performers (Seki dancers)  on the same  legal pedestal  as actors for the purposes of beneficial economic and moral rights with a global scope.

Although IP scholars are still discussing the path to consensus on accepting  a legal definition for traditional cultural expressions, Seki dance is a creative performance of indigenous culture, folklore and heritage. Therefore, the dancing and displaying of the Seki cultural attributes are the performing of creative works. Seki dancers are performers, actors and artists under the current Nigerian copyright law. Section 63 of the current Nigerian copyright expressly itemizes the rights of a performer in economic, creative and social context. Therefore, a Seki dancer has exclusive legal creative rights to control acts that arise and in relation to her (his) work- performance.

Seki Dance and Creative Performance Rights

Seki dance is a creative dance indigenous to the people of the South-South region of Nigeria, particularly among the peoples of mostly the Okrika nation extraction and other ethnic nations like the Ijaw. Recently, Mr. Yibo Koko, a foremost Nigerian artist and creative director, who is also the chief executive and Director General of the Rivers State Tourism Development Agency (RSTDA) has organized this authentic African creation into a formal entrepreneurial and creative cultural asset mostly with the assistance and enablement of digital tools. In my interactions with Mr. Koko he stated that “… Seki prides itself as a celebration of the colors and clatter of the Niger Delta- this owes for most part to how the various dances-Opu Iria, Kala Iria, Pioru, Bamba-Owu, Ojongo-Owu, Ogwein, Owembe peoples of Niger Delta.” He further stated that his objectives include the preservation of the rich culture of his people from extinction and most particularly using the existing digital assets to achieve those outcomes. The partnership of the public and private sector in the indigenous cultural creative industry may be a welcome development because of the potential trigger this could endear for investment from other sectors of the global economy. It may also signify a sign of confidence that the indigenous cultural industry is part of the formal economy.

How Nigeria’s laws and policies is structured to enable Seki Dance and its likes

Seki Dance is a traditional cultural expression (TCE), a form of contemporary genre of intellectual property that has been handed down from generation to generation but kept alive and virile through transformative creativity of people like Mr Koko and his group of dancers. Intellectual property has a strong role in the monetization and sustainability of Seki dance and other forms of TCE. More particularly, as a tourism magnet, this TCE could be complemented by current IP regimes, like Trademark, copyright, Geographical indications, traditional knowledge, trade secret and patent in protecting the creative, innovative and entrepreneurial rights of the indigenous people from misappropriation and add more value in the downstream tourism value chain.

The economic opportunities that tourism combined with a properly organized indigenous cultural industry like the Seki Dance, is exponential in the digital era audiovisual spaces. The power of the digital ecosystem has the potential of globalizing a hitherto unknown creative work normally seen in stationary locations. In 2016, a European Union report cited a study that forecasted that the cultural and creative industries (CCI) in Africa will generate $4.2 billion and create 547, 500 jobs. Although, the actual confirmation and realism of this forecast is spotty, however, there has been major uptick economic upward-movements in the CCI of Nigeria since 2016. Some creative contents in the audiovisual platforms have contributed significantly into the Nigerian Gross Domestic Product (GDP)  in recent times. With the visibility that digital distributive and productive modes now affords Seki Dance, coupled with  its  innate-ingenious richness, Seki Dance as a good geographical indications is a tourism gold mine, national-brand, and a source product. The multiplier effects to the local economy of Niger Delta, Nigeria and to the national economy is encouraging for developmental growth of its people.

The path to covering the creative field

With a rich and endowed ingenuous creative depth uniquely connected to her, Nigeria and other traditional nations of the global South should take the competitive and strategic product advantage of their cultural assets to explore and monetize these creative works in an upscale fashion. Through deliberate national policies and political will, the traditional culture expressions, traditional knowledge and geographical indications attached to the creativity and innovations of indigenous people will change the economic fortunes of immediate host communities. After all Seki Dance is going mainstream and upstream.

 

*Professor Samuel Samiái Andrews writes from Al Yamamah University College of Law, Al Khobar in Saudi Arabia.

 

Does censoring and or banning a movie really work? effective or just political muscle-flexing? *

 

                                                            Samuel Samiái Andrews^[1]

Culture, Morality & Creativity

Media reports recently in Nigeria state that the government through its agency, the National Film and Video Censor Board (NFVCB), issued a directive to censor and ban certain categories of creative contents and expressions of cinematographic works made in Nigeria or made by Nigerian filmmakers (Nollywood).^[2] Filmmaking is both a constitutional and statutory right of Nigerians.^[3] It is also an internationally guaranteed right, which are stipulated by international treaties of which Nigeria is a signatory to most of these treaties. It is a fact that all laws are local, loosely interpreted to mean that a nation-state is the sole sovereign to set laws for its jurisdiction that enforce acceptable norms, policy, and social good governance of her people. However, in contemporary era, law making that offends laws in the books within the same geographical sphere of a nation state may offend the rights of its people. Making laws from the prism of enforcing moralities, sectional sensitivities and ideologies, a nation state risks descending into State sponsored illegalities and illegal deprivation of private properties (intellectual property is a mostly private property).

Moral, religious, and ideological sensitivities or idiosyncrasies are complex outcomes that requires the highest scrutiny in a nation state like Nigeria. In Nigeria, we have people of different religious, social and cultural beliefs. Therefore, forcing any socio-cultural norm on an entire people is not just unfair but unconstitutional. The terms- ‘...ritual killings and glamourizing other crimes…’ is legally ambiguous and sociologically worrisome. Most contents shown on Nollywood are realities of the Nigerian culture, folklore, and history. So, why criminalize, illegalize, or shame our culture? Nollywood scholars have linked the emergence and ingenuity of Nollywood to its ingenuity and originality of interpreting Nigeria’s Indigenous culture and folklore.^[4] I am not stating here that the Nigerian culture or history is solely rich in criminality or gruesome killings of her people. However, if it happens (which is a fact) what is wrong or illegal in showing these events on cinematographic platforms or singing about them? Can NFVCB ban the existence of smoking? So, why engage in the impossible?

Some Indigenous Nigerian culture and customs may be caught in this NFVCB ban or censor directive. For instance, an unelected public official may cite a section of a Regulation (which has not even been subjected to public scrutiny) to ban Ifa incantation, Ekpe masquerade, Ekpo masquerade and other traditional customs, which in most part of Nigeria may include skulls of dead animal, hides and skin of wild animals, in the name of gruesomeness or whatever word they may invoke.

‘Na who send you’?[5]

Cultural sensitivities have become a quasi-public policy of the National Film and Video Censor Board in its regulatory activities.^[6] NFVCB demands cultural sensitivities as one of the criteria in granting permission for the release of a Nollywood film.^[7] This policy seems to have been a trend from its early days coming into existence. The current directive of NFVCB concerns smoking in movies, cultural scenes (reality) in films-sacrifices, ‘money making rituals’ etc. Who defines what depictions of creativity are immoral or illegal? The government or the people of Nigeria? Who censors an artistic creation-visual or audio depiction of fictions and non-fictional events? Why do we have categorizations-classifications of films- fit-for audience- ‘R’ ‘Adult’ ‘G’ etc.?

It appears to me that we have experienced this censorship or Ban threat from NFCB before.^[8]  Half of a Yellow Sun, a movie based on Chimamanda Ngozi Adichie’s book with similar title, faced censorship issues. Other Nigerian directed and produced films have faced similar fate.^[9] Nigerians were not denied watching this movie in spite of the censorship by NFVCB. There is always a will in the underground economy and unregulated Internet spaces. The delay in release of the film in Nigeria due to NFVCB’s interference may have affected the bottom-line of the filmmakers in Nigeria. Censorship or ban of creative contents affects the creative entrepreneurial spirit and efforts of Nollywood.

A more effective approach to regulation of artistic and literary works

NFVCB and other creative regulators should adopt sensible and effective national policy to regulate citizen’s conduct. These public institutions should avoid arbitrary abuse of power or infringement of the citizen’s creative rights legally protected as private property under the Constitution of Nigeria. Within the jurisprudential divide, one common denominator remains that laws should be effective and ‘democratically’ made for governance. Where laws or rules become anti-citizen, the essence of societal Ordering becomes complicated. In modern or contemporary governance, the formal and institutional arms of government conduct empirical and deep consultations with the people for filtering feedback and analyzing overall significance of a new law. Did the NFVCB conduct any consultation with the stakeholders in the overall creative industry in Nigeria and experts in the subject field? I am not aware of such, as a researcher and scholar on Nollywood.

Nollywood remains one of the remaining productive sectors of the Nigerian economy that lifts its citizens out of poverty and shines a better light upon Nigeria in the comity of nations. So, why mess up with a good thing? The Nigerian government should go back to its drawing board and approach this issue in a smarter way based on global standards of classification of movies. Banning goods or products that have some form of recreational or entertainment benefits to a people does not work.^[10] In a digital era of creative production with ubiquitous distribution platforms powered by digital technology, how can NFVCB enforce its ban or censorship? How effective is (was) banning or censoring online piracy of Nigerian movies? From studies and research banning online content did little dent on piracy (an obnoxious affliction on Nigeria’s socio-economic objectives) of audiovisual contents on the Internet. Rather, another regulatory body in Nigeria adopted a more effective mechanism to dull the effects of piracy on movies and musical works on Nigerian creatives.^[11] The unintended consequences of the NFVCB censorship and ban directive will be the creation of another wave of black-market economy for Nigerian films that may undercut legit Nollywood producers and directors, including artists, actors, actresses, and the downline community.  The issue is (NFVCB) regulate, smart regulation and regulator to impel Nollywood’s creatives.

 

 

 

 

---

^[1] Professor Samuel Samiái Andrews, a United States Ambassador’s Distinguished Scholar & Professor of Intellectual Property Law lives in Saudi Arabia. Part of this contribution initially appeared in his SJD dissertation ‘Reconceptualizing Nigerian Copyright Law to Protect Nollywood’ -Suffolk University Law School, Boston. Massachusetts, USA, 2018. He teaches law at College of Law, Al Yamamah University, Al Khobar, The Kingdom of Saudi Arabia.

*I have adapted the article’s theme from ‘Reconceptualizing Nigerian copyright law to protect Nollywood’ -Samuel Samiái Andrews, a SJD dissertation deposited and presented to Suffolk University Law School, Boston. Massachusetts, USA (2018, April 17); Samuel Samiái Andrews, ‘Reforming Copyright Law for a Developing Africa (2018-2019) Journal of the Copyright Soc’y USA vol 66 page 1; Samuel Samiái Andrews, ‘Reconceptualizing International Law to Protect African Creative Industries (2018) Obafemi Awolowo University Law Journal, (Page 217). A longer version of this article is forthcoming.

^[2] Vanguard Newspaper, ‘FG bans ‘money rituals, smoking other vices in Nollywood movies’ (22 May 2024) <https://www.vanguardngr.com/2024/05/fg-bans-money-rituals-smoking-other-vices-in-nollywood-movie> last visited 10 June 2024.

 Andrews (n1) (Reforming copyright laws for a developing Africa).

^[3] Connor Ryan, ‘Nollywood and the Limits of Informality: A Conversation with Tunde Kelani, Bond Emeruwa and Emem Isong’ (2014) 5 Black Camera 168, 176-77.

^[4] Ryan (n3)

[5] Nigerian Pikin English that loosely means-where did you get the capacity or what authority do you have?

^[6] Dul Johnson, ‘Culture and Art in Hausa Video Films’ in Nigeria Video FILM 200 (Jonathan Haynes eds., 2000); Matthias Krings, ‘Conversion on Screen: A Glimpse at Popular Islamic Imaginations in Northern Nigeria’ (2008) 54 Africa Today 45-68; Abdallah Adamu, ‘Islam, Hausa Culture and Censorship in Northern Video Film’ in Viewing African Cinema In The Twenty-First Century 63 (Mahir Saul, et al. eds., 2010).

^[7] Johnson (n6); Adamu (n6).

^[8] British Broadcasting Corporation, ‘Half of a Yellow Sun Film delayed by Nigeria Censors’ (25 April 2014) <http://www.bbc.com/news/world-africa-27162545>; Nathan Ekpo, ‘Censor Board Killing Nollywood’ Nigeriafilms.com  (13 July, 2015) <http://www.nigeriafilms.com/news/34514/27/censor-board-killing-nollywoodshan-george.html> ; Michelle Faul et al, ‘Nigerian Film Encounters Roadblocks in Nigeria’ Associated Press (1 May 2014)  <https://www.yahoo.com/movies/nigeria-film-encounters-roadblock-nigeria-152459893.html>; Biyi Bandele, ‘Why Can’t  Nigerians Watch Country’s Biggest Movie?’  CNN.Com (21 May 2014) <http://www.cnn.com/2014/05/21/opinion/why-cant-nigerians-half-yellow-sun/>  

^[9] Bandele (n8)

^[10] Ros Hodgkins, ‘Being a censor drives you mad. It’s not the material that corrupts. It’s the job’ The Guardian (20 November 1998 <https://www.theguardian.com/film/1998/nov/20/features> visited 11 June 2024.

^[11] The Nigerian Copyright Commission has been mostly smart and proactive in its regulatory functions.