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

 

                                                            Samuel Samiái Andrews^[1]

Culture, Morality & Creativity

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

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

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

‘Na who send you’?[5]

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

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

A more effective approach to regulation of artistic and literary works

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

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

 

 

 

 

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

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

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

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

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

^[4] Ryan (n3)

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

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

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

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

^[9] Bandele (n8)

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

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

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.