Reforming
Copyright Law For A Developing Africa
66 J. Copyright Soc'y USA, 500 (2019) Publication forthcoming in the Journal of Copyright Society of the U.S.A.
Table of Contents
Abstract………………………………………………………………………………………… 2
§1.0
Introduction……………………………………………………………………………… 3
§1.1Article Road Map………………………………………………………………………..
4
§1.2
The Background…...........................................................................................................
6
§1.3
African Cultural Industries: The Films Resurgent………………………….................9
§1.4 Nollywood: The Birth of An Indigenous Creative Industry…………………….............10
[A] Living in Bondage (1992): A
New Creative Industry………………………………………..10
[B] Piracy
and Nollywood’s Emergence………………………………………………….12
[C] Nigerian Socio-Economic
Reality & Nollywood……………………………………14
§1.5
Issues Arising……………………………………………………………………………18
[A]
Microsoft v. Franike Associate Ltd………………………………………………………....20
(I) The Doctrine of National Treatment
Ignored…………………………………………….21
[B] Nigerian
Bar Association v. Oladelemi Olubakin……………………………………....23
[C] Kidjo
Angélique v. Akpovi H. Athanase
………………………………………... 24
§1.6
Nollywood Inalienable Rights in
Creativity……………………………………..............27
[A] Reflections
from Nollywood Industry….………………………………………………...29
[1] On the Piracy Problem ………………………………………………………………….30
[2] Policy & Creative Rights Enforcement………………………………………………...
32
[3] Regulating
Interventions………………………………………………………………. 32
§2.1 Reconceptualizing
Nigerian Copyright Law……………………………..........................33
[A] Fair Dealing In Fair Use?..........................................................................................
36
[1] The Essentials of Fair
Use…………………………………………………………… 36
[2] Nigeria’s Fair Dealing
Doctrine……………………………………………………... 37
[3] Is Fair Use the Way for Africa
& Nigeria?..................................................................
39
[4] The Soothing Balm of Fair Use……………………………………………………...
39
[B] Technical
Protection & Anti-Trafficking Rules….…………………………………….39
[1] The U.S. Anti-Trafficking Provisions……………………………………………….40
[2] Nigeria’s Anti-Trafficking
Devices………………………………………………….42
[C] Immunities
& Safe Harbors for Creativity….………………………………………….42
[1] The U.S. Safe Harbor
Rule…………………………………………………………..42
[2] Nigeria’s Digital Safe
Harbor………………………………………………………..43
[a] The Takedown Rules……………………………………………………………….44
[b] Nollywood Response to Takedown
Notices………………………………………..44
[c] Moderating
Takedown……………………………………………………………...46
[d] The Nigerian Putback
Process……………………….……………………………47
[D] Enhanced
Copyright In Creative Industry & Investors……………………………….49
[1] Direct Investment & African Creative
Industry……………………………………..49
[2] Lack of Supporting Infrastructure
for Content………………………………………53
[3] A Case for Better Metrics for Afrollywood
Film……………………………………54
§
3.1 The Controversial Aspects of The
Proposed Reforms…………………………56
[A] The
AntiCircumvention Controversy….……………………………………………..56
[B] The
DMCA Experience….…………………………………………….……………..57
[1] A Case of Copyright
Overreach?...............................................................................59
[C] Nollywood
Doctrine of Copyright Misuse….………………………………………..62
[1] The NCC As Copyright Misuse
Referee……………………………………………..63
[D] Necessity
for Interoperability….…………………………………………………….63
Conclusion…………………………………………………………………………………....66
Abstract
This article explores
the intersectionality between enhanced national copyright laws and economic growth of African creative
industries. Recently, African creative industries, which include films,
fashion, traditional cultural expressions, music, and literary arts, resurged
into various national economic productive space. This article critically
examines and analyzes the connecting thread between African creativity and
economic growth. I use Nigeria as a case study to critically analyze how a
strong National copyright regime may impel an indigenous creative industry, for
example, ‘Afrollywood.’
Nollywood, the Nigerian film industry is the third largest globally in terms of
production index. Hollywood is the leading film industry while Bollywood and
Nollywood occupy the second and third position respectively. Most developing
economies in Africa, including Nigeria suffer from legal lag in their
intellectual property (IP) right regimes. The consequences of playing
‘catch-up’ in IP policies and rights enforcement stalls the developing of
robust regional and international trade system and creative industrial base.
Therefore, Africa interacts in a monetized creative field that is uneven. This article
concludes that a starting approach to spur African creative industrial economic
engine and artistic forces is reforming and enhancing its copyright laws to
recognize digital era productive realities.
Keywords: Intellectual Property, Nollywood, Creative Industry, Nigerian
Copyright Laws, Digital Copyright, International Trade & Development,
Trademarks, Cyberspace law, Contract laws, Creative Human Capital, Technology
law, Technical Protection Measures, Afrollywood, Naijacomedy.
§1.0 Introduction
African
economies traditionally relied exclusively on the extractive industries of
minerals and oil deposits as their sources of revenues for economic and social
development. However,
from the beginning of this millennium the World Intellectual Property
Organization (WIPO) led the efforts to explore and highlight the relevance of
intellectual property rights, particularly copyright in the growth of African knowledge
economy and industries.
African
nations in recent years have increased its innovative capacities and focused on
alternating its sources of national revenue. Africa
has an abundance of creative human capital that needs the deliberate and strategic
deployment of enhanced legal system and public policy.
WIPO encourages African nations to adopt a mix of effective IP regime and policies
as a strategy for productive cultural and knowledge-based economies.
In
2002, New York Times coined the indigenous Nigerian film industry, Nollywood,
after Hollywood, the United States entertainment hub and Bollywood, the
Bombay-Indian movie industry.
Nollywood’s unique creative model of shooting low-quality movies within two to
four weeks with a video recorder, and taking advantage of an underground piracy
distribution infrastructure to market its goods was a novel concept. Section
One of this article further highlights the emergence of Nollywood from its
pedestrian stage to global recognition.
§1.1 Article
Road map
This article critically examines and
analyses the significance of digital copyright laws in the growth of Africa’s
emerging creative industries, using Nigeria as a case study. This article will examine the role
of copyright laws in protecting, safeguarding and stimulating African creative
industries as an alternative to dependency on natural-mineral resources. It explores the intersectionality of enhanced
copyright regimes of the digital era and African economic growth. This article acknowledges the dearth of
African case law and literature on the issues of digital copyright regimes, and
will engage mostly in a comparative analysis of the Nigerian and United States
legal system.
Nigeria is Africa’s largest economy and the
birthplace of the third largest film industry in the world, Nollywood. Nigeria has a population of more than 180
million people and a nation with the largest number of people of black
ascendancy in the world.
Therefore, Nigeria’s potentials as a reservoir for cultural and artistic
contents are significant in global creative industries.
This paper evolves in three sections. Section One examines the background and
necessity for digital copyright in Nigeria’s economy using two case studies to
highlight the significance of copyright laws in Nigerian socio-economic
experiences.
Section One also critically analyzes the
impact of copyright regime on Nigerian creative industry through the
perspective of stakeholders of the creative industry. To understand the reality
of Nigerian and African copyright regime and its dynamical interactions with
creators. I conducted semi-structured interviews with a dozen Nigerian film
industry stakeholders, which included filmmakers, government copyright
regulators, Nollywood actors, culture journalist and copyright scholar.
The common thread among Nollywood
stakeholders I spoke with was the need to enhance Nigerian copyright law in
both policy, enforcement and legal system.
Majority of the interviewees held the opinion that enhancing Nigerian copyright
regime will incentivize the creative spark of Nollywood industry and spur
investment in the industry.
Section Two examines Nigeria’s initiative in reforming its copyright regimes to
adapt to contemporary digital economy. It further examines the
intersectionality between enhanced copyright regimes and investment growth in
Africa’s creative industries.
Finally, Section Three critically
analyzes the digital copyright regime of the proposed Nigerian law and makes
suggestion for a fit regime for Nigeria and Africa. This article concludes by
exploring the significance of African digital copyright regime. The role of intellectual
property stakeholders (judges, lawyers, creators, and policymakers) in
reconceptualizing an effective copyright regime to protect the African creative
industries continue to evolve.
§1.2 The
Background
Most of the developed nations reformed
their intellectual property (IP) laws to reflect the acceded IP Treaties of the
late 1990s.
The United States Congress for example, enacted the Digital Millennium
Copyright Act (DMCA) as part of the United States laws.
The WIPO Copyright Treaty (WCT) heralded the recognition of technological
intersections and creativity.
The treaty introduced a new legal Order different from the traditional
copyright methods, which focuses on forbidding unauthorized reproduction of
literary creative and non-literary works enabled by technology.
The advent of the Internet and technological innovations in the late 1980s birth
a digital economy.
Legal scholars coined the term ‘digital copyright’ to capture the connection
between the emerging economy and the methods of creating copyrighted works for
new platforms.
In Africa, policy makers and the
political class have apathetically ignored the creative industries because of
either political philosophies or abject ignorance.
African creative industries include fashion, film, folklore, traditional
culture expressions, sculpture, music, literature, literary works, drama,
animations and celebrity branding.
Innovators on new platforms like the Internet and software programs-driven
ecosystems began to rely on digital copyright regimes to protect their
creativity.
Digital copyright regimes like Technical Protection Measures (TPM), Digital
Rights Management (DRM), and Takedown and Putback processes have become a
significant part of copyright law.
In Nigeria, Policy makers concentrated only on
the oil economy and completely neglected the significance of the knowledge
economy. The Nigerian legislature ignored the
encompassing reach of technology and its relationship with creativity. Issues
relating to intellectual property rights in Nigeria were not given due
attention until the late 2000
when Nollywood industry stakeholders gave prominence and visibility to piracy
issues affecting the film industry.
Nollywood loses an estimated $2
billion per year to piracy because of Nigeria’s weak copyright regime. A survey conducted by the Nigerian Copyright
Commission and the Ford Foundation in 2008 indicated that pirated copies of
creative works constitute 58% of copyrighted works in Nigeria. The
Nigerian creative industries like music and traditional cultural creators have
the potentials of growing an economy as shown in the recent reports on the
rebasing of the national gross domestic product (GDP) index. Other
African economies can grow their economies with using the same template of
Nollywood.
§1.3
African Cultural Industries: Films Resurgent
African
extractive industries have dominated the economic and trade ecosystems of most
of its nations. Significantly,
African creative industries recently have become a significant source of
revenue for some countries.
For example, at the beginning of 2014 Nigeria became Africa’s biggest economy with
help from Nollywood’s revenue stream. Prior to resurgence of Afrollywood,
conflict over mineral deposit ownership civil war engulfed several countries.
For example, Nigeria, Liberia, Sierra Leone, Congo and South Africa have fought
civil wars or experienced environmental degradations directly related to
exploration of oil and different types of mineral deposits.
Africa suffers from legal lag in its
copyright jurisprudence.
Most countries in Africa have not reformed their copyright laws to recognize
the contemporary digital era means of production and creativity.
African economies until the current millennium paid little or no attention to
its creative human capital and industry.
With a population of more than 1.3 billion people, Africa with a monetized
creative content and goods has the capacity to promote inter-regional and
international trade in creative contents to spur its internal economies.
§1.4 Nollywood:
The Birth of An Indigenous Creative Industry
[A]
Living in Bondage (1992): A New Creative Industry
Living in Bondage, a video film shot in Video Home System (VHS) and produced by Kenneth
Nnebue in 1992, jump-started the Nollywood industry.[43] Obi-Rapu, who
directed Living in Bondage, worked at
the Nigerian Television Authority as a film content resource person. Living in Bondage was a movie made in indigenous Igbo Nigerian language.[45]
This film depicted the belief in local folklore of apparitions, deities and
instant justice from the gods.
The film was
aesthetically poor but became a symbol of a creative indigenous
entrepreneurship.[46] Nollywood film industry started as a profit
driven commercial enterprise. It primarily took
advantage of the economic benefits the new source of arts brought to filmmakers.
Kenneth Nnebue, the acclaimed progenitor of Nollywood industry was the
motivational force for this growth. Kenneth Nnebue, who
started the Nollywood industry, explained
that “[m]y initial interest on movies was only commercial….” The commercial interests
of Nollywood stakeholders influenced the creative phases of the industry from start.
Nollywood
filmmakers contend that economic incentive is the principal driving factor for
filmmaking, although expression of creative talent plays a motivation force. The late Amaka Igwe, one
of Nigeria’s female award-winning Nollywood filmmakers, suspended producing and
making films because of the depressive economic incentives, which befell the
industry in later years. Therefore, without commercial
profits Nollywood filmmakers will abandon their trade.
Kenneth Nnebue’s successful entrepreneurial strides challenged
other producers in Nollywood to create films in an unprecedented spree.[54] After Living
in Bondage, several other movies flooded the commercial space and a new
cinematographic experience began in Nigeria. Living
in Bondage, is a story about a man, Andy Okeke,[56] seeking wealth and material
achievement. The principal character, Andy Okeke, joined a
cult to advance his goals of wealth and power.
The cult demands that the prize for wealth be the sacrifice of his wife.
He killed his wife as a sacrifice for reaching wealth. The ghost or apparitions
of his wife tormented him, and he became mentally ill. Okeke’s family resorted
to seek spiritual help from a church to heal him of his mental health issues.
The Nigerian audience identified with these movies because it was
a nuanced factual depiction of their socio-cultural experience.[59] Living in Bondage also depicted the
folktale of the power of good over evil in local Nigerian folklore and
anthropology.[60]
Popular folk tale in Nigeria among the Yorubas, Igbos and most ethnic groups
hold the belief that anyone responsible for the death of another will
experience torment by the apparition of the deceased.[61]
[B] Piracy and Nollywood’s
Emergence
The
seamy side of the video home system (VHS) and videocassette recorder (VCR)
technology was that it enabled easy duplication of films leading to widespread
piracy. Nollywood loses $2 million yearly to piracy
and its artists earn less income for their creative works. Piracy
has become Nollywood’s Achilles’ heel because digital technology enabled the
rapid production of their films. The
illicit film replication continues in large volumes and unregulated.
The
straight-to-video (STV) production system became the weak link in the Nollywood
distribution chain because the videotapes, DVDs or VHS cassettes had no
protection against illegal duplication. A quarter century after the first Nollywood
films appeared, the industry is now at a crossroad that needs enhanced
copyright protection. Film pirates
exploited the high demand and limited access to Nollywood films with the
alternatives of unauthorized copies.
In the United States, copyright laws
strengthened the major movie production studios’ regulated system. The
movie studios mostly release the movies through approved cinema theatres,
thereafter through the digital versatile disc (DVD) format, and recently
through online streaming. Film piracy
is also a threat to creative contents and rights in the United States.
The
Motion Picture Association (MPA) commissioned an international
strategy-consulting firm to conduct a survey, which showed that film piracy
rather than decrease in the USA increased in evolving manner. However,
the negative impacts of this underground enterprise in Hollywood compared to
Nollywood are in different economic scales. The
U.S. runs a more formal economy where statistics and data support regulatory
regimes.
The film industry in the U.S. works in a system that easily allows for the
tracking of underground film ventures in contrast to the case in Nigeria.
Nigeria’s
informal economy enabled the movie piracy because gatekeepers were unable to
monitor actual film productions in the black market. In the
United States, the formal and highly developed film infrastructures have become
the wedge between Hollywood and existential eclipse from film piracy. The majority of Nollywood pirated films run
beyond the reach of the Nigerian copyright regime. The
unmoored black market thrived and undermined the legitimate film production
sector.
[C] Nigerian Socio-Economic
Reality & Nollywood
Film production in Nigeria with
celluloid format met an adverse economic environment in the early 1980s.[80]
The military regime in Nigeria had introduced an economic and monetary program,
the Structural Adjustment Program (SAP), which restricted the access to foreign
exchange necessary for celluloid film production.[81]
Nigerian filmmakers were unable to produce films in celluloid format
because they could not import film production equipment.
Nollywood films became a feasible alternative
for Nigerians and it dominated the home video entertainment space.[83]
The public cinema business model in Nigeria failed because movie tickets were
beyond the ability of consumers to pay. Another factor that contributed to the death
of public cinema was the widespread crime against people and personal
properties.
Attending cinema theatres at Night was risky because of the high levels of
insecurity.[86] The Nigerian economic recession brought
untold hardship upon the country including the creative industries.[87]
In Nigeria, Ghana, Kenya, South Africa, Tanzania and
Uganda, the leading film economies of Africa, the film industry has not
attracted large foreign investment.
The reasons for thematic and growth deficiencies in the African creative
industries includes legal regime incapacities and inherent socio-economic lag.
For instance, national politics, and corruption
in African continent stalls development.
Economics and legal literatures have linked weak legal systems and regulatory
enforcement regimes to investor lackluster approach to African creative
industry.
An increase in Afrollywood film production capacity
ordinarily will translates to huge employment of labor because of the need for
talents for film projects.
For example, Nollywood industry as at
2016 directly employed more than 300,000 and indirectly employs more than a
million.
With an effective copyright regime and policy, it could grow better optimally.
Nollywood’s
technical and infrastructural capacity is presently inadequate compared to the
developed industries of Hollywood and Bollywood.
The capital investment that Nollywood would need for an increased production
capacity must be diverse and not limited to Nigeria.
A strong national intellectual property right regime encourages a multi-lateral
development initiative for an effective international trade network.
African reformed and enhanced
intellectual property laws will impel the monetization of creativity and
increase creative human capital that exist among its people.
A legally protected African creative industry will create an investment and
international trading opportunity with other regions of the world.
African creative and cultural industries since the late 2000 have bolstered
national economies of countries in the continent.
The 1990s saw the signing and acceding
of the World Intellectual Property Organization (WIPO) Internet treaties, which
was an attempt by the international intellectual property community to adapt to
the changing methods of economic productivity on the Internet and digital
platforms.
The WIPO Internet Treaties consist of the WIPO Copyright treaty (WCT), WIPO
Performances and Phonograms Treaty (WPPT).
Recently, the Beijing Treaty on Audiovisual
Performances (The Beijing Treaty) and The Marrakesh Treaty To Facilitate Act to
Published Works For Persons Who Are Blind Visually Impaired or Otherwise Print
Disabled (Marrakesh Treaty).
The Internet treaty also includes a humanitarian and social responsibility
framework for nations in the 2013 adopted Marrakesh Treaty to ease access to
published works for the blind, visually impaired or print disabled persons
(Marrakesh VIP Treaty, MVP).
[42] See,
Kamil Idris, Intellectual Property: A
Power Tool for Economic Growth, World Intellectual Property Organization
23-52, 189-236 available at ftp://ftp.wipo.int/pub/library/ebooks/wipopublications/wipo_pub_888e.pdf; See
also, World Intellectual Property Organization et al, Science, Technology and Innovation and Intellectual Property Rights:
The Vision for Development , United Nations System Task Team On the Post
2011Millennuim Agenda (May 2012) available at http://www.un.org/millenniumgoals/pdf/Think%20Pieces/11_ips_science_innovation_technology.pdf ; See
e.g., United States Agency for International Development Briefing Paper: Intellectual Property and Developing
Countries: An Overview, 1, 3-10
(Dec. 2013) available at https://www.hsdl.org/?view&did=446296
See, Terry Flew, Creative
Industries: A New Pathway, 42
Intermedia 11-13 (2014) also available at http://eprints.qut.edu.au/68631/1/Intermedia_CI_article_42_1_2014.pdf; See
also, Ruth Towse, Creativity,
Copyright and the Creative Industries Paradigm, 63 Kyklos 461-478 (2010); See e.g., Ruth Towse, Copyright
and Cultural Policy for the Creative Industries in Economics, law and intellectual property 419-438 (Ove
Grandstrand, eds., Boston, Massachusetts: Kluwer Academic Publishers, 2013)
See, Hannibal Travis, WIPO and
the American Constitution: Thoughts on a New Treaty Relating to Actors and
Musicians, 16 Vand. J. Ent. &
Tech. L. 45 (2013); See also,
Ruth L. Okediji, The Regulation of
Creativity under the WIPO Internet Treaties, 77 Fordham L. Rev. 2379 (2008).
