Unpacking the Intersectionality of Intellectual Property's Limitation Jurisprudence and The Marrakesh Treaty: Disabilities and Expressions in Copyright- Ethiopia, Nigeria & USA” Presentation of Paper at 2nd IP & Innovation Researchers of Asia Conference & Workshop for IP Teachers and Researchers, Fakultas Hukum, Universitas Indonesia, February 27-29, 2020. #IPIRA2020
https://youtu.be/frOzdj4ZBTQ?si=Mm1dYV0qcTKAhn5H
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.
[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.
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.
https://theconversation.com/nollywood-could-see-a-major-boost-from-nigerias-new-copyright-law-an-expert-explains-why-200507
Nigeria has finally updated its 2004 copyright law, bringing it into the digital era – where the entertainment industry has been for decades already.
Before the late 1990s, it was difficult even to get telephone services in Nigeria. And it was very expensive for private enterprises to make films. Since then, digital technology has unleashed a multitude of ways to receive information and entertainment.
With the arrival of digital technology, all a filmmaker needed was a simple video recorder and a group of talented creatives. Thus modern Nollywood – the Nigerian film industry – was born.
Nollywood employs more than a million people directly or indirectly, making the sector Nigeria’s second largest employer after agriculture. In 2022, Nollywood’s contribution to Nigeria’s GDP stood at 0.1%. It’s Africa’s most successful film industry and the third largest globally after Hollywood and Bollywood in terms of the number of movies produced annually.
But Nigeria’s copyright regime lagged behind the industry’s technological and business developments. The biggest issue was piracy, that it was easy to copy and sell other people’s work without their consent. The courts found themselves with new intellectual property problems to deal with and it was clear a new copyright regime was needed.
I have written specifically about Nollywood, arguing that it needs a new copyright regime if it is to thrive. And I have researched the kind of copyright curriculum that law schools in Nigeria need in order to make the amended copyright law effective in growing its creative industries. My research supports the idea that Nigeria should deliberately include digital copyright regimes in its laws and strengthen the institutions that put them into effect.
And the new copyright law in Nigeria does fill gaps. Nigerians will now have a legal regime that can protect their creativity within the technological space. The new law will be useful to combat online film piracy and loss of revenue from the illegal use of copyrighted works.
The new law has the potential to create stability and predictability in industries like Nollywood. This is a positive step towards a more diversified national economy – and economic growth.
But it will be important to allow the courts to do their job. Trying to settle disputes through the Nigerian Copyright Commission – which is a new option – could complicate and prolong the litigation. That might discourage investment in the creative industry.
Nigeria’s new copyright law recognises and protects creative works that are based on current digital productive technologies. It covers films, music, performances, literary works and performances enabled by the internet and wireless devices through streaming techniques, uploads, hyperlinks and air-drops.
The law now provides anti-circumvention devices. It is now a copyright infringement to illegally circumvent a computer program, software or a technical protection measure created to protect a copyrighted work. Film piracy is both a criminal offence and a civil wrong, with severe punishment and consequences. This now applies to new forms of online film piracy too.
The new copyright law also includes a “safe harbour” provision which protects Nollywood entrepreneurs from unnecessary legal suits. For example, online service provider business is an emerging technology that requires huge investment and is vulnerable to illegal actions. People upload unauthorised content on an online platform and this can result in lawsuits which affect investors in this sector. The safe harbour comes with responsibility on the part of the online service provider: it must quickly remove unauthorised content and must not benefit financially from it.
The new law gives copyright owners ways to resolve disputes over ownership of online content without necessarily going to court.
The new law has five more aspects that will help sustain the creative economy and promote access to knowledge and education.
Alternative dispute resolution system. This mechanism can be used to settle issues surrounding creative rights within contemporary digital platforms. The process will be organised by the Nigerian Copyright Commission, the regulator.
Register of works. Creators are required to register their created works. Although creators of works like Nollywood films automatically own their copyright, the register – if well executed – may help with rights management and be a resource for potential investors in the industry.
User generated content. When you take a photo of yourself and upload it on platforms like Facebook, YouTube, Instagram or TikTok, what you have done is upload content on an online service provider. You may have copyright over that content. The new copyright law clearly defines your rights and regulates infringement of such rights.
Copyright exceptions. Sometimes a copyrighted work can be used without the copyright owner’s authorisation. The new law seems to take the approach that the public has a right to use a copyrighted work if it’s good for society. For example, anyone can use a copyrighted work for educational purposes – to teach in a classroom, for news reporting, criticism, or parody. People can also use the underlying idea in the copyrighted work (ideas aren’t protected by copyright) to create a new, “derivative” work.
Copyright management organisation. Another new aspect is that regulators can appoint more than one copyright management organisation to serve a specific class of creative work. This will potentially further liberalise and democratise creativity.
Laws ought to be effective in action. If the new law is to benefit Nollywood and other digital industries, government institutions and policies will need revamping.
The Nigerian Copyright Commission should use its new administrative powers carefully. It should be sensitive to the fact that only the courts can judge disputes of property rights.
The commission must stop licensing only one collective management organisation per creative category. Currently, for example, in the musical works category the commission has granted only one copyright management organisation the licence to collect royalties on behalf of creators. This has resulted in court battles for sole control over royalties. If the commission makes rights management more competitive, there may be less tension in the sector. Creatives should have more choice.
Nigeria will also need to pay more attention to training experts with knowledge of the digital era laws. The university creative and legal curriculum needs reform along with the new law.
If the new law is to benefit Nollywood, it will have to be properly implemented.
The updated Nigerian copyright law recognises how a contemporary creative system can encourage investment in the Nigerian film industry.
