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.
Samuel Samiai Andrews[1]
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.’[2]
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.[3] 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.[4]
African
nations in recent years have increased its innovative capacities and focused on
alternating its sources of national revenue.[5] Africa
has an abundance of creative human capital that needs the deliberate and strategic
deployment of enhanced legal system and public policy.[6]
WIPO encourages African nations to adopt a mix of effective IP regime and policies
as a strategy for productive cultural and knowledge-based economies.[7]
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.[8]
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.[9] 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.[10] It explores the intersectionality of enhanced
copyright regimes of the digital era and African economic growth.[11] 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.[12] 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.[13]
Therefore, Nigeria’s potentials as a reservoir for cultural and artistic
contents are significant in global creative industries.[14]
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.[15]
The common thread among Nollywood
stakeholders I spoke with was the need to enhance Nigerian copyright law in
both policy, enforcement and legal system.[16]
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.[17]
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.[18]
The United States Congress for example, enacted the Digital Millennium
Copyright Act (DMCA) as part of the United States laws.[19]
The WIPO Copyright Treaty (WCT) heralded the recognition of technological
intersections and creativity.[20]
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.[21]
The advent of the Internet and technological innovations in the late 1980s birth
a digital economy.[22]
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.[23]
In Africa, policy makers and the
political class have apathetically ignored the creative industries because of
either political philosophies or abject ignorance.[24]
African creative industries include fashion, film, folklore, traditional
culture expressions, sculpture, music, literature, literary works, drama,
animations and celebrity branding.[25]
Innovators on new platforms like the Internet and software programs-driven
ecosystems began to rely on digital copyright regimes to protect their
creativity.[26]
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.[27]
In Nigeria, Policy makers concentrated only on
the oil economy and completely neglected the significance of the knowledge
economy. [28] The Nigerian legislature ignored the
encompassing reach of technology and its relationship with creativity.[29] 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.[30]
Nollywood loses an estimated $2
billion per year to piracy because of Nigeria’s weak copyright regime.[31] 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.[32] 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.[33] 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.[34] Significantly,
African creative industries recently have become a significant source of
revenue for some countries.[35]
For example, at the beginning of 2014 Nigeria became Africa’s biggest economy with
help from Nollywood’s revenue stream.[36] Prior to resurgence of Afrollywood,
conflict over mineral deposit ownership civil war engulfed several countries.[37]
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.[38]
Africa suffers from legal lag in its
copyright jurisprudence.[39]
Most countries in Africa have not reformed their copyright laws to recognize
the contemporary digital era means of production and creativity.[40]
African economies until the current millennium paid little or no attention to
its creative human capital and industry.[41]
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.[42]
§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.[44] 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.[47] 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.[48] Kenneth Nnebue, who
started the Nollywood industry, explained
that “[m]y initial interest on movies was only commercial….”[49] The commercial interests
of Nollywood stakeholders influenced the creative phases of the industry from start.[50]
Nollywood
filmmakers contend that economic incentive is the principal driving factor for
filmmaking, although expression of creative talent plays a motivation force.[51] 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.[52] Therefore, without commercial
profits Nollywood filmmakers will abandon their trade.[53]
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.[55] Living
in Bondage, is a story about a man, Andy Okeke,[56] seeking wealth and material
achievement.[57] 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.[58]
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.[62] Nollywood loses $2 million yearly to piracy
and its artists earn less income for their creative works.[63] Piracy
has become Nollywood’s Achilles’ heel because digital technology enabled the
rapid production of their films.[64] The
illicit film replication continues in large volumes and unregulated.[65]
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.[66] A quarter century after the first Nollywood
films appeared, the industry is now at a crossroad that needs enhanced
copyright protection.[67] Film pirates
exploited the high demand and limited access to Nollywood films with the
alternatives of unauthorized copies.[68]
In the United States, copyright laws
strengthened the major movie production studios’ regulated system.[69] The
movie studios mostly release the movies through approved cinema theatres,
thereafter through the digital versatile disc (DVD) format, and recently
through online streaming.[70] Film piracy
is also a threat to creative contents and rights in the United States.[71]
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.[72] However,
the negative impacts of this underground enterprise in Hollywood compared to
Nollywood are in different economic scales.[73] The
U.S. runs a more formal economy where statistics and data support regulatory
regimes.[74]
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.[75]
Nigeria’s
informal economy enabled the movie piracy because gatekeepers were unable to
monitor actual film productions in the black market.[76] In the
United States, the formal and highly developed film infrastructures have become
the wedge between Hollywood and existential eclipse from film piracy.[77] The majority of Nollywood pirated films run
beyond the reach of the Nigerian copyright regime.[78] The
unmoored black market thrived and undermined the legitimate film production
sector.[79]
[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.[82]
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.[84] Another factor that contributed to the death
of public cinema was the widespread crime against people and personal
properties.[85]
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.[88]
The reasons for thematic and growth deficiencies in the African creative
industries includes legal regime incapacities and inherent socio-economic lag.[89]
For instance, national politics, and corruption
in African continent stalls development.[90]
Economics and legal literatures have linked weak legal systems and regulatory
enforcement regimes to investor lackluster approach to African creative
industry.[91]
An increase in Afrollywood film production capacity
ordinarily will translates to huge employment of labor because of the need for
talents for film projects.[92]
For example, Nollywood industry as at
2016 directly employed more than 300,000 and indirectly employs more than a
million.[93]
With an effective copyright regime and policy, it could grow better optimally.[94]
Nollywood’s
technical and infrastructural capacity is presently inadequate compared to the
developed industries of Hollywood and Bollywood.[95]
The capital investment that Nollywood would need for an increased production
capacity must be diverse and not limited to Nigeria.[96]
A strong national intellectual property right regime encourages a multi-lateral
development initiative for an effective international trade network.[97]
African reformed and enhanced
intellectual property laws will impel the monetization of creativity and
increase creative human capital that exist among its people.[98]
A legally protected African creative industry will create an investment and
international trading opportunity with other regions of the world.[99]
African creative and cultural industries since the late 2000 have bolstered
national economies of countries in the continent.[100]
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.[101]
The WIPO Internet Treaties consist of the WIPO Copyright treaty (WCT), WIPO
Performances and Phonograms Treaty (WPPT).[102]
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).[103]
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).[104]
***
[1] Dr.
Samuel Samiai Andrews, SJD is an Adjunct Professor at Albany State University,
Georgia. USA. He teaches Cybercriminology, Criminal Justice and Legal
Environment of Business at Albany State University. He co-lectured
the SJD Colloquium and Workshop Seminar of the SJD Doctoral Program at Suffolk
University Law School (2015-2018). He holds double LL.M (Intellectual Property
& Policy from the University of Washington, Seattle, and LL.M in
International Law & Legal Theory from the University of Uyo, Nigeria). He
also holds an LL. B (Hons) from the University of Uyo, Nigeria and a BL
(Barrister-at-Law) diploma from the Nigerian law School, Lagos. This
article is an adaptation of my SJD dissertation, “Reconceptualizing Nigerian
Copyright Law to Protect Nollywood” submitted to the Suffolk University Law
School. I would like to thank Professors, Michael L. Rustad, Christopher
Gibson, Elizabeth Trujillo, Patrick Shin, and Sara Dillion (all of Suffolk
University Law School, Boston. USA), as well as Professors Jessica Silbey and
Professor Thomas H. Koenig
(Professor of Sociology, law & Policy, all Northeastern University, Boston,
USA) for their help in guiding me through the development of thoughts, which formed the principal themes
of this article. © 2018. Samuel Samiai Andrews, All Rights Reserved.
[2] See,
Carmela Garritano, African Movies and
Global Desires: A Ghanaian History 1, 154-194 (Center for International
Studies; Ohio University Press, 2013); See also, Jyoti Misty & Jordache A. Ellapen, Nollywood’s Transportability: The Politics
and Economics of Video Films as Cultural Products in Global Nollywood: The Transnational Dimensions
of an African Video Film Industry 46-69 (Matthias Krings & Onookome
Okome, eds., Bloomington: Indiana University Press, 2013); See e.g.,
George Issaias, East Africa: The Start of
a Booming Film Industry? True Africa (December 15, 2015) available at
https://trueafrica.co/article/east-africa-the-start-of-a-booming-film-industry/; See
also e.g., Frankline Sunday, Kenya’s
Film Industry is in Revival Mode, Standard Digital (October 6, 2015)
available at https://www.standardmedia.co.ke/business/article/2000178722/kenya-s-film-industry-is-in-revival-mode;
Afrollywood represents the film industries of Nollywood (Nigeria), Ghallywood (Ghana), Bongowood
(Uganda), Kennywood (Kenya) and Jollywood+Joziwood+Vollywood (South Africa) all
form the resurged African film industries.
‘Afro’ stands for the unique indigenous African feature in this genre of
movies.
[3] See, Ed Stoddard, Africa is
Still Way Too Dependent on Resources, Reuters (April 26, 2013) available at
https://www.reuters.com/article/us-africa-investment/africa-is-still-way-too-dependent-on-resources-idUSBRE93P0HX20130426 ; See
also, Brian D. Schaefer, America’s
Growing Reliance on African Energy Resources, Backgrounder, The Heritage
Foundation (June 20, 2016) available at www.heritage.org/research/africa/bg1944.cfm
[4] See, Francis Gurry, Intellectual property for an emerging Africa, WIPO Magazine
(October 2015) available at http://www.wipo.int/wipo_magazine/en/2015/si/article_0001.html
[5] See, Enyinna Nwauche, Intellectual
Property and Creative Industries Policy in African
Research Handbook on Intellectual Property and Creative Industries 85-90
(Abbe E.L. Brown & Charlotte Waedle, eds., Cheltenham, Glasgow: Edward
Elgar Publishing Inc., 2018) (noting the initial erroneous assumptions that
creative industries do not impact the GDPs of African countries).
[6] See, Difass, Intellectual Property and Human Capital,
available at file:///C:/Users/sandrews5/Downloads/DIFASS%20Brochure%205,%20%20IP%20and-Human%20Capital.pdf;
See also, Joel A.C. Baum & Brian
S. Silverman, Picking Winners or Building
Them? Alliance, Intellectual and Human Capital as Selection Criteria in Venture
Financing and Performance of Biotechnology Startups, 19 J. Bus. Venture
411-436 (2004).
[7] Francis Gurry, supra, note.4.
[8]
See, Norimitsu
Onishi, How The Times Named ‘Nollywood,’
New York Times (February 11, 2016) available https://www.nytimes.com/2016/02/11/insider/how-the-times-named-nollywood.html; See
also, Set Aside, L.A. and Bombay,
New York Times (September 16, 2000) available https://www.nytimes.com/2002/09/16/world/step-aside-la-and-bombay-for-nollywood.html;
See e.g., Norimitsu Onishi, Nigeria’s Booming Film Refines African
Life, New York Times (February 18, 2018) available at https://www.nytimes.com/2016/02/19/world/africa/with-a-boom-before-the-cameras-nigeria-redefines-african-life.html.
[9] Norimitsu Onishi, Nigeria’s
Booming Film, supra, note 8; See,
Uchenna Onuzulike, Nollywood: The Birth of Nollywood, The Nigerian Movie
Industry, 22 Black Camera 25 (2007).
[10] See, Wilbert T.K. kaahwa, The
Institutional Framework of the EAC in East
African Community Law 43-78 (Emmanuel Ugirashebuja, et al, eds., Brill,
2017); See also, Walter A. Friedman
& Geoffrey Jones, Creative Industries
in History, 23 Bus. Hist. Rev. 237-244 (2011).
[11] See, Christopher Zambakari,
Underdevelopment and Economic Theory of Growth: Case for Infant Industry
Promotion, 8 Consilience: J. Sustain.
Develop. 171-187 (2012).
[12] See, Uri Friedman, How Nigeria became Africa’s Largest Economy
Overnight, The Atlantic (April 7, 2014) available at https://www.theatlantic.com/international/archive/2014/04/how-nigeria-became-africas-largest-economy-overnight/360288/;
[13] See, The Economist, Nigeria’s
GDP Change: Step Change, Revised Figures Show that Nigeria is Africa’s Largest
economy, (April 12, 2014) https://www.economist.com/news/finance-and-economics/21600734-revised-figures-show-nigeria-africas-largest-economy-step-change.
[14] See, United Nations Conference on Trade and Development, Culture Creative Industry, 2 Afr. Pol. & Pol’y (2016) also available at https://www.cultureinexternalrelations.eu/cier-data/uploads/2016/08/Report21.pdf.
[15] Transcript of conversations and
semi-structured interview is available through the author of this article.
[17] See, Peter Yu, Five Decades
of Intellectual Property and Global Development, 8 Wipo J. 1-10 (2016).
[18] Id.
[19] Digital Millennium Copyright Act
Pub. L. No. 105-304, 112 Stat. 28860 (1998); 17 U.S.C §§ 512,1201-
[20] Id.
[21] See, Agreement on Trade-Related Aspects of Intellectual Property
Rights, Apr. 15, 1994 Marrakesh Agreement Establishing the World Trade
Organization, Annex 1C, Legal Instrument-Results of the Uruguay Round, 1869
U.N.T.S 299 (1994).
[22] See, Tarleton Gillespie,
Wired Shut: Copyright and the Shape of Digital Culture 8-9 (Cambridge:
MIT Press, 2007).
[23] See, Jessica Litman, Digital
Copyright 11, 166-186 (New York: Prometheus Books, 2006).
[24] See, Carlos Ropes, How Can
Africa Profit from Its Creative Industries? United Nations Economic
Commission for Africa Executive Secretary’s Blog (August 19, 2014) available at
https://www.uneca.org/es-blog/creativity-new-money; See
also, African Business Magazine, African
Creative Industries: The Sleeping Giant, (January 28, 2014) available at http://africanbusinessmagazine.com/uncategorised/african-creative-industries-the-sleeping-giant/#article-author;
See e.g., Omolade Oladipo, Creative Industries and the Informal Sector,
Quantum Global Q3 2017: Africa Investment Review (September 14, 2017) also
available at http://africanbusinessmagazine.com/uncategorised/african-creative-industries-the-sleeping-giant/#article-author.
[25] See, Tom Fleming Creative
Consultancy, Scoping Creative Economy in East Africa 3, 6-27 (London:
British Council) also available at https://www.britishcouncil.org/sites/default/files/scoping-creative-economy-east-africa.pdf;
See also, Pradip Thomas & Francis
B. Nyamnjob, Intellectual Property
Challenges in Africa: Indigenous Knowledge System and the Fate of Connected
Worlds in Indigenous Knowledge
Systems and Intellectual Property In The Twenty-First Century: Perspective from
Southern Africa 12-25 (Isaac Mazonde & Pradip Thomas, eds., Dakar,
Senegal: Council for the Development of Social Science Research in Africa,
2007).
[27] See, Brodi Kemp, Copyright’s Digital Reformulation, 5 Yale J. L. & Tech. 141 (2002).
[28] See, Mohammadu Buhari, Making Africa Rising a Reality in Nigeria,
Bloomberg.com Sept 21, 2016 available at https://www.bloomberg.com/view/articles/2016-09-21/making-africa-rising-a-reality-in-nigeria.
(citing the President of Nigeria’s concerns of overdependence on oil and gas
revenue by Nigeria); See also, Daniel
Tonwe et. al, Greed and Grievance: The
Changing Contours of Environmentalism in Nigeria’s Niger Delta Region, 20 J. Hist. Soc’y Nig. 45 (2011); See e.g., Daniel Tonwe et al, Greed and Grievance: The Changing Contours
of Environmentalism in Nigeria’s Niger Delta Region, 20 J. Hist. Soc’y Nig. 45 (2011).
[29] See, Adekola Anthony & Sunday Eze, Intellectual Property Rights in Nigeria: A Critical Examination of the
Activities of The Nigeria Copyright Commission, 35 J. L. Pol’y & Globalization
2224-3240 (2015).
[30]
Oludayo Tade, The Piracy Threat facing
the Nollywood Film Industry, Newsweek (April 20, 2016) available at http://www.newsweek.com/who-and-how-pirates-threatening-nollywood-film-industry449994.
[31] Id.
[32] See, WIPO Magazine, STRAP and CLAMP: Nigeria Copyright Commission in Action, Sept.
2008, available at http://www.wipo.int/wipo_magazine/en/2008/05/article_0009.html.
[33] See, The Economist, The Economist Explains: How Nigeria’s Economy grew by 89% Overnight,
Economist.com (April 8, 2014) available at https://www.economist.com/the-economist-explains/2014/04/07/how-nigeria-economy-grew-by-89-overnight;
[34] Ed Stoddard, supra, note 3.
[35] See, Enjoli Liston, Hello
Nollywood: How Nigeria became Africa’s Biggest Economy Overnight, The
Guardian (UK) (April 10, 2014) available at https://www.theguardian.com/world/2014/apr/10/nigeria-africa-biggest-economy-nollywood; See
also, The Economist, Nigeria: The
Africa’s New Number, (April 12, 2014) available https://www.economist.com/leaders/2014/04/12/africas-new-number-one
[36] Uri Friedman, supra, note 11.
[37]
See, Stewart M.
Patrick, Why Natural Resources Are a
Curse on Developing Countries and How to Fix it, The Atlantic (April 30,
2012) available at https://www.theatlantic.com/international/archive/2012/04/why-natural-resources-are-a-curse-on-developing-countries-and-how-to-fix-it/256508/
[38] See, Lindiwe Dovey, Editorial:
African Film and Video: Pleasure, Politics Performance, 22 J. Afr. Cult. Stud. 1-6 (2010); See also, Theresa Cahan, Secondary Industries for Tropical Africa,
14 J. Int’l Afr. Instit. 170-176 (1943).
[39] See, Thomas H. Koenig &
Michael L. Rustad, Global Information Technologies : Ethics And The Law 21-36 (St.
Paul, Minnesota: West Publishing, 2018) (describing legal lag as when legal
institutions fail to keep up with the changing social and cultural conditions of
society and quoting Justice Benjamin Cardozo posit that law must continually
evolve to deal with the emergent social realities); See also, Benjamin
Cardozo, The Growth Of The Law 19-20 (New Haven, Connecticut:
Yale University Press, 1973) (emphasizing that “the inn that provides shelter
for the night is not the journey’s end. The law, like the traveler must be
ready for the morrow. It must have a principle of growth”).
[40] See, Peter GJ Koornhof, Intellectual
Property: What Can be Learnt from South Africa’s ‘Please Call Me Case, ’
The Conversation ( August 28, 2015 ) available at https://theconversation.com/intellectual-property-what-can-be-learnt-from-south-africas-please-call-me-case-46582
[41] See, Enjoli Liston, Hello
Nollywood: How Nigeria Became Africa’s Biggest Economy Overnight, The
Guardian (April 10, 2014) available at https://www.theguardian.com/world/2014/apr/10/nigeria-africa-biggest-economy-nollywood.
[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
[44] See, Matthew Brown, At the
Threshold of New Political Communities: Some Notes on the History of
Nollywood’s Epic Genre, 7 The Global South 55-78 (2013).
[45] See, Hyginus Ekwuazi, Igbo
Video Film, a Glimpse into the Cult of the Individual in Nigerian Video Films, 131, 133-134
(Jonathan Haynes, ed. 2000).
[46] See, See, Jeremy Malcolm,
Blind Users Celebrate as Marrakesh Treaty
Implementation Bill Drops, Electronic Frontier Foundation (March 15, 2018)
available at https://www.eff.org/deeplinks/2018/03/blind-users-celebrate-marrakesh-treaty-implementation-bill-drops.
[47] See generally, Jonathan
Haynes, Nollywood: The Creation Of Nigerian Film Genre (2016).
[48] See, Uzoma Esonwanne, Interviews
with Amaka Igwe, Tunde Kelani and Kenneth Nnebue, 13 Res. Afr. Lit. 26 (2008).
[49] Id.
[50] Id.
[51] Id.
[52] See, Akin Adesokan, Amaka
Igwe: Why I Stopped Making Films, Premium Times (Nigeria) (May 18, 2014)
available at http://www.premiumtimesng.com/arts-entertainment/161007-stopped-making-films-amaka-igwe.html.
[53] Id.
[55] Jonathan Haynes, supra, note 47 at 3-17
(describing the Nigerian film landscape, which replicated Living in Bondage style of production, with successful films like Taboo 1 (1993), Evil Passion (1993), Rattlesnake
(1994), Domitilla (1997), Mortal inheritance (1996), Jezebel (1994), Nneka, the Pretty Serpent, and
Igodo: Land of the Living Dead -1999)
[58] Id.
[59] See, Jonathan Haynes & Onookome Okome, Evolving Popular Media in Nigerian
Video Films 51 (2000).
[60] Hyginus Ekwuazi, supra, note 45.
[61] See, Jonathan Haynes & Onookome Okome, supra, note 59.
[62] Id.
[63] See, Ebuka Obi-Uchendu, Nollywood,
Piracy and the Millennial Crisis, The Huffington Post, March 7, 2014
available at http://www.huffingtonpost.com/ebuka-obiuchendu/nollywood-piracy-and-the-millennial-crisis_b_4665209.html.
[64] Id.
[65] Id.
[66] See, Nathaniel
Bivan, Billions of Pirated DVDs, CDs Flood Nigerian Markets, Daily Trust
(May 16, 2015) available at https://www.dailytrust.com.ng/weekly/index.php/new-news/20509-billions-of-pirated-dvds-cds-flood-nigerian-markets;
See also, Will Connors, Nollywood Babylon : Nigeria’s Movie Industry
is Winning Global Attention But DVD Piracy May Bring it down, The Wall Street Journal (May 22, 2009)
available at https://www.wsj.com/articles/SB10001424052970203771904574177472683696390
[68] Id.
[69] See, Peter Decherney,
Hollywood’s Copyright Wars: From Edison To The Internet 201 (2012).
[70] Id.
[71] See, Motion Picture Association, The Cost of Music Piracy, MPA-LEK available at https://www.wired.com/images_blogs/threatlevel/files/MPAstudy.pdf;
See also, Oludayo Tade, The Piracy Threat Facing the Nollywood Film
Industry, Newsweek (April 20, 2016) available at http://www.newsweek.com/who-and-how-pirates-threatening-nollywood-film-industry-449994.
[72] MPA-LEK, supra, note 71.
[73] See, Brett Danaher & Michael D. Smith, Digital Piracy, Film Quality and Social Welfare, Geo. Mason L. Rev. 923-938 (2017); See also, Gregory Day, Competition and Piracy, 32 Berkeley Tech. L.J. 775 (2017); See
e.g., Sonia K. Katyal, Piracy vs. Piracy,
7 Yale J.L. & Tech. 222-235 (2004).
[74] MPA-LEK, supra, note 71.
[75] See, Paul McDonald, Hollywood,
The MPAA, and the formation of Anti-Piracy Policy, 22 Int’l J. Cult. Pol’y 686-705 (2015) also available at https://www.tandfonline.com/doi/abs/10.1080/10286632.2016.1223635.
[76] See, Sola Fosudo, Nollywood:
The Reality and Illusions of a Film Industry in Transition In Music and Theatre Arts in Africa 95-105 (Femi
Shaka & Mosunmola Onubiyi-Obidike, eds., Lagos: Lagos State University PR
Unit, 2012) also available at http://www.lasu.edu.ng/publications/arts/olusola_fosudo_bk_028.pdf.
[77] See, Todd Cunningham, How
Hollywood is Using the Streaming Boom to Beat Back Digital Pirates,
Thewrap.com (Jan. 29, 2006) available at https://www.thewrap.com/how-hollywood-is-using-the-streaming-boom-to-beat-back-digital-pirates/;
See also, David McGuire, Studios Step Up Fight Against Online Piracy,
Washingtonpost.com (Dec. 14, 2004) available at http://www.washingtonpost.com/wp-dyn/articles/A63900-2004Dec14.html?noredirect=on.
[78] See, Ramon Lobato, Creative
Industries, and Informal Economies,
13 Int’l J. Cult. Stud. 337-54 (2010).
[80] Uchenna Onuzulike, supra, note 9.
[81] See, Elimma Ezeani, Economic
and Development Policy-Making in Nigeria, 56 J. Afr. L.109 (2012).
[82] Jonathan Haynes, supra, note 47.
[83] See, Alessandro Jedlowski, From
Nollywood to Nollyworld: Processes of Transnationalization in the Nigerian
Video Film Industry in Global
Nollywood, The Transnational Dimensions Of An African Video Film Industry 25,
27-31 (Matthias Krings & Onookome Okome eds., Bloomington, Indiana
University Press, 2013).
[84] See generally, Onookome
Okome, Cinema And Social Change In West Africa (Jos: Nigerian Film
Corp., 1997).
[85] Id.
[87]
Jonathan Haynes, supra, note 47.
[88] See, Sean Flynn, Copyright Legal and Practical Reform for The South African Film
Industry, 17 Afr. J. Info. &
Comm. 39-47 (2015).
[89] See, Ned Dalby, Making Most
of Africa’s Culture and Creativity: Economic Development, Democracy and Peace
Building, African Argument (October 10, 2013) available at http://africanarguments.org/2013/10/10/making-the-most-of-africas-culture-and-creativity-economic-development-democracy-and-peacebuilding-by-ned-dalby/ ; See also, Ann Overbergh, Innovation
and Its Obstacles in Tanzania’s Bongowood, 7
J. Ari. Cinemas 137-151(2015).
[90] Ann Overbergh, supra, note 89.
[91] See, Oluwayemisi
Adebola Oyekunle, The Contribution of
Creative Industries to Sustainable Urban Development of South Africa, 9 Afr. J. Sci. Tech. Innovation & Develop.
601-616 (2017).
[92] See,
Aubrey Hruby, Tap Creative Industries to
Boost Africa’s Economic Growth, Financial Times (March 22, 2018) available
at https://www.ft.com/content/9807a468-2ddc-11e8-9b4b-bc4b9f08f381; See also, Olu Ajakaiye, et al, Understanding
the Relationship between Growth and Employment in Nigeria, (May 2016)
available at https://www.brookings.edu/wp-content/uploads/2016/07/growth-employment-nigeria-ajakaiye-jerome-nabena-alaba.pdf.
[93]
See, Mfonobong Nsehe, Hollywood, Meet Nollywood, Forbes.com,
( April 19, 2011) available at https://www.forbes.com/sites/mfonobongnsehe/2011/04/19/hollywood-meet-nollywood/#1eb286765d7a
; See also, Olufunmilayo B. Arewa, Nollywood and African Cinema: Cultural
Diversity and the Global Entertainment Industry in Diversity In Intellectual Property: Identities, Interests, and
Intersections 367, 376-377
(Irene Calboli & Srividhya, eds., New York: Cambridge University Press,
2015).
[94] Id.
[95] See,
Jake Bright, Nollywood: The New Business
of African Films, This is Africa online , May 7, 2014 available at http://www.thisisafricaonline.com/News/Nollywood-The-new-business-of-African-film?ct=true
[96] See, Emma Dunkley, Film Funds
Offer a Possible Route for Investors, Financial Times (October 26, 2015)
available at https://www.ft.com/content/ebbbb892-6b88-11e5-8171-ba1968cf791a.
[97] See,
Anup Tikku, Indian Inflow: The Interplay
of Foreign Investment and Intellectual Property, 19 Third World Quarterly 87-113 (1998).
[98] 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)
[99] See,
Christian Handke, Intellectual Property
in Creative Industries: The Economic Perspective in Research Handbook On Intellectual Property and Creative Industries
57-76 (Abbe E.L. Brown & Charlotte Waelde, eds., Cheltenham, UK:
Edward Elgar Publishing, 2018); Aubrey
Hruby, supra, note. 92.
[100] See, European Union, United
in Diversity, Culture in the EU’s External Relations: A Strategy for EU-China
Cultural Relations: Report of The Export Group On Culture and External
Relations China (Nov.2012) available at
https://www.cultureinexternalrelations.eu/cier-data/uploads/2016/11/Expert-group-Culture-and-Ext-Rel-China-Final-Report.pdf;
See also, European Union, Culture and Creative
Industries in Africa, 2 Afr. Pol. & Pol’y (2016) also available at https://www.cultureinexternalrelations.eu/cier-data/uploads/2016/08/Report21.pdf.
Industries in Africa, 2 Afr. Pol. & Pol’y (2016) also available at https://www.cultureinexternalrelations.eu/cier-data/uploads/2016/08/Report21.pdf.
[101] 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).
[103] See, WIPO Copyright Treaty, Dec. 20, 1996, S. Treaty Doc. No.
105-17 (1997), 36 I.L.M. 65 (1997); See
also, WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. Treaty
Doc. No. 105-7 (1997), 36 I.L.M. 76 (1997); See
e.g., WIPO, Beijing Treaty on Audiovisual Performances, WIPO Doc. WVP/DC/20
(June) 24, 2012); See also e.g., See, Jeremy Malcolm, Blind
Users Celebrate as Marrakesh Treaty Implementation Bill Drops, Electronic
Frontier Foundation (march 15, 2018) available at https://www.eff.org/deeplinks/2018/03/blind-users-celebrate-marrakesh-treaty-implementation-bill-drops
[104] See, Corilee Christou, Marrakesh Treaty Implementation Act Builds
Momentum, Newsbreak (April 3, 2018) available at http://newsbreaks.infotoday.com/NewsBreaks/Marrakesh-Treaty-Implementation-Act-Builds-Momentum-124159.asp
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