Nigerian IP: 'Sir Jude Nnam v Five Star Music Ltd & Ors (aka) the E-money- "Som Too Chukwu Copyright Case: Reliance on Civil Procedural CYAs by Nigerian Judges?

 

Nigerian IP: 'Sir Jude Nnam v Five Star Music Ltd & Ors (aka) the E-money- “Som Too Chukwu” Copyright Case: Reliance on Civil Procedural CYAs by Nigerian Judges?

                                       Samuel Samiái Andrews [1]

In the Federal High Court of Nigeria, in the Lagos Judicial Division on the 30th of September 2024, Justice K. O. Ogundare gave with due respect an erroneous judgement, in my opinion in the mostly copyright infringement case before him between Sir Jude Nnam (Plaintiff) and Five Star Music Ltd and two other defendants (Mr. Emeka Okonkwo aka E-Money and Mr. Kingsley Chinweike Okonkwo (aka KCEE) (defendants), the case I will herein refer to as the E-Money-"Som Too Chukwu" Case (ES case).

Stating the case in brief, the plaintiff sued the defendants for copyright infringement for the unauthorized use of the song "Som Too Chukwu,"   which he claimed composition rights, ownership and authorship among other claims, and which said song was surreptitiously included in the music album of the KCEE titled "Cultural Praise Vol. 1." by the defendant, KCEE. The Plaintiff also claimed copyright including composition rights/ownership to the songs titled "Otito Diri Chineke' and 'K' Anyi Jee N' Ulo Chukwu," which were surreptitiously included in the music album titled "Cultural Praise Vol. 4. by the defendant, KCEE.

I took time to read the more than 96 pages judgement, and I concluded that it is high time, like yesterday, we in the intellectual property spaces especially the experts, professionals, academics and policy institutions intervene to save the Nigerian judiciary by enhancing their capacity and understanding of intellectual property subjects. 

For a while now, I have been tracking judgements, Orders, Rulings, and Conclusions of Nigerian Judges with scholarly interest. Most Nigerian judges' conclusions in these contemporary era (1990-2024) reflects limited knowledge and understanding of intellectual property laws particularly of the digital era and the evolving fourth industrial revolution. An enhanced knowledge and understanding capacity for Nigerian judges is even more fundamental under current Nigerian laws including the Copyright Act 2004 (Nigeria), and the Copyright Act 2022 (Nigeria) because of the controlling intersection of digital and traditional creative-innovative infrastructures.[2] In 2021, a Nigerian judge ruled that because a plaintiff did not register his copyright in a work, he had no protection under the Nigerian Copyright law.[3] This example of the erroneous positions in law and fact by a judge (I have records of several instances of legal errors) heightens my concerns for the future of the Nigerian IP practice, management and protection, particularly around copyright creations.[4] 

In the E-Money and ‘Som Too Chukwu’ (ES) copyright dispute that is the primary focus of this thesis, Justice Ogundare spent more than  ninety-eight per cent (98%) of his 96  pages judgement elucidating the pristine and glorious qualities of Civil Procedural Rules and court traditional norms and practices to come to a conclusion that is contrary to the Nigerian copyright law under existing jurisprudences and global best practices, laws and policies of copyright jurisprudence.[5]

Justice Ogundare’s judgement was interspersed with arcane civil procedural, technical legalese and abstracts that failed to answer the core issues: Whether there was any intellectual property rights (copyright, trademark, trade secret, etc.) as pleaded by the parties before him in the subject matter in dispute. Who is/was the owner/author of such IP rights that was/were created. Whether such IP rights was/were infringed? And by whom? And how?

Positive IP laws including the Nigerian Copyright Act of 2004 and the current law, Copyright Act 2022 have laid out the perimeters of how to answer these and other legal questions/issues. International Treaty regimes, which Nigerian is a party to are also available to assist the Nigerian courts and judges to arrive at fair, just and legally appropriate conclusions but something is lacking.

Looking at existing IP Positive laws (copyright) in Nigeria the fundamental question in resolving the ES case should have been to focus on whether the song, music, musical works and sound recording etc. are copyrighted works under the Nigerian work and in particular the song “Som Too Chukwu” whether it conforms with the fundamental requirements of copyright originality and copyright creativity. Thereafter, the discovery and investigation as to who created the work and who infringed, who copied or used the song unauthorized could have followed. My reading of the judgement shows that the judge failed to take those steps. The controlling law on this case is the Nigerian Copyright Laws. The investigation and analysis of other IP rights if at all they existed in the dispute could come after resolving the copyright question.

A more detailed scholarly treatment of these issues is forthcoming. I welcome reactions and comments to my opinion here at S_andrews@yu.edu.sa

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[1]©2024. Dr. S. Samiái Andrews, SJD., is a United States Ambassador’s Distinguished Scholar and Professor of Intellectual Property Law. A former Professor of Intellectual Property Law at the University of Gondar, School of Law, Ethiopia. He was formerly Teaching Assistant and a Lecturer in the SJD Doctoral Degree Program of Suffolk University Law School, Boston Massachusetts USA. He is currently a faculty at The College of Law, Al Yamamah University-Al Khobar, Eastern Province of The Kingdom of Saudi Arabia.

[2] Olufunmilayo B. Arewa, Disrupting Africa-Technology, Law, and Development (Cambridge

University Press 2021)

[3]  Paul Allen Oche v Nigerian Breweries Plc and three others, FHC/ABJ/CS/145/2019 (Nigeria)

(Holding on 25 June 2021 in Abuja that a copyright owner under Nigerian law must register her

copyright to acquire ownership); perhaps this court taking the cue from the government’s institution

like the Nigerian Copyright Commission erroneously following the trend of requirement for

copyright formality in registration.

[4] TV Xtra Production Limited and another v National University Commission and Zain Nigeria FHC/ABJ/CS/680/2008, 6 May 2020; Raconteur Productions Limited v Dioni Vision Entertainment Limited and others FHC/L/CS/401/2017 (delivered 2 May 2019) at p 17-18 (citing erroneously Feist Publications Inc v Rural Telephone Service to support the Nigerian copyright originality doctrine, with the Feist doctrine relying on a modicum of originality in a creation, while Nigerian copyright law still relies on the ‘sweat-of-the-brow’ doctrine of originality); Distinct Universal v Bong Nigeria Limited (1997-2003) 4 LPLR 44; Microsoft Corporation v Frankie (2012) 3 NWLR [PT.1287] 301 (p 99 of record of appeal) (upholding the lower court’s decision that Microsoft, not being a Nigerian corporation, could not seek the court’s protection to enforce its copyright because the court lacked jurisdiction to hear Microsoft on issues of infringement of its software programs, which the court acknowledged is an eligible subject matter for copyright protection under Nigerian law); Raconteur Productions Limited v Dioni Vision Entertainment Ltd and others FHC/L/CS/401/2017 (holding that the plaintiff had failed to adduce sufficient and credible evidence to prove authorship and ownership of the screenplay of the feature film and did not have any copyright to the film); Violet Johnson, ‘Omoni Oboli Wins “Okafor’s Law” Movie Ownership Battle’ The Guardian (London, 8 May 2019) <https://guardian.ng/life/omoni-oboli-wins-okafors-lawmovie-ownership-battle/> accessed 14 November 2024.

[5] Samuel Samiai Andrews, “Developing Copyright Curriculum for Nigerian Universities for the

Creative Space” (2021) GRUR International https://doi.org/10.1093/grurint/ikab157 accessed.

14 November 2024.

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.

 

Intellectual property and contract: Nigeria’s transactional jurisprudential shift for protecting

 Abstract

The intersection of contract law and copyright in the digital era commercial spaces have continued to elicit heightened scholarly discussions in intellectual property (IP) literature. In an earlier paper[2] on deploying contracts to enhance copyright ownership, I examined how the Nigerian copyright law laid a robust path for contract law to compliment authorial rights in the digital creative spaces for audiovisual works. This paper continues the discussion particularly within the background of the new Nigerian copyright law. It explores further the impelling agency functions of contract for protecting copyrights in audiovisual works. Contractual remedies as a regime of copyright protection and enforcement elicits conflicting jurisprudential approaches within IP scholarship. In the United States, the copyright preemption doctrine nearly disallows the usage of contract to enforce and protect copyright. Other jurisdictions like the European Union-the current directives on copyright and related rights in the single market appear to recognize transactional regimes as an enforcement method for creative authorial rights. In Nigeria, its current copyright law-Copyright Act (2022) has further deepened the jurisprudential space and foundation for recognizing contract laws as an agency for protecting creative works. With near global recognition of the online transactional cultures and norms, the Nigerian copyright law has recognized copyright and contract interrelatedness in creative rights’ protection. The audiovisual subset of the cinematography industries depends on contract regimes to consummate statutory rights granted within the controlling laws. This paper will analyze further how Nollywood, Nigeria’s movie industry will benefit from the enhanced creative jurisprudence and what policy derivatives complement this regime. It will also critically examine contract deliverables beyond its present regime using Nollywood’s entrepreneurial practices as the starting point. 

Keywords: digital copyright, intellectual property, contract, license, films, Nollywood, jurisprudence. collective societies and management organizations.

 

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[1] This paper is a longer version of my presentation with similar title during the 41st Congress of ATRIP, at the University of Tokyo, Japan, Summer 2023. ( publication forthcoming).

*Dr. S. Samiái Andrews, SJD., teaches law at Al Yamamah University, College of Law, Al Khobar in the Eastern Province of the Kingdom of Saudi Arabia. Dr. Samiái is a United States Ambassador’s Distinguished Scholar, a Professor of Intellectual Property Law. He is a former Professor of Intellectual Property Law at the University of Gondar, School of Law, Ethiopia. He was formerly Teaching Assistant-lecturer in the SJD Doctoral Degree Program of Suffolk University Law School Boston Massachusetts USA. He holds a Doctor of Juridical Science (SJD) degree from Suffolk University Law School Boston, Massachusetts USA. He holds an LL.M in Intellectual Property Law & Policy from the University of Washington, Seattle. USA. He also holds an LL.M in Jurisprudence & Legal Theory and an LL. B (Hons) all from the University of Uyo, Nigeria. He holds a Barrister-at-law (BL) diploma from the Nigerian Law School, Lagos. A Practicing & Licensed Attorney, and a licensed Capital Market Solicitor

[2] Samuel Samiái Andrews ‘Rethinking transactional jurisprudence in copyright: Nigeria’s unconscious edge’ (2020) 15 Lagos State University Law Journal 165-188; see also  SSRN <https://ssrn.com/abstract=3547868> accessed 25 May 2024.

Is Nollywood ready for the AI disruptions?

Introduction

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

A new creative dawn

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

A parable of horrible or a realism?

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

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

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

Nigerian copyright law may spur Nollywood’s AI reach

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

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

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

Putting the rail guards

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

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

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