Amending the Nigeria Broadcasting Code: A Legal Analysis, By Justin Ige
The wide apprehension that the amended Code has caused is unnecessarily exaggerated from a legal standpoint. The Broadcasting Code is law, but it is not law in a vacuum. It exists within a larger legal context and will bow to superior legislation, particularly the Constitution of the Federal Republic of Nigeria and the Copyright Act.
The amendment to the sixth edition of the Nigeria Broadcasting Code has met significant resistance from various media and entertainment quarters. It has been argued that should the amendment be retained, investments in the media and audiovisual industries will suffer. The basis for this argument has been that the amended Code prohibits the exclusive use of audiovisual content and compels the sub-licensing of content to others at rates that could be determined by regulators. Such prohibition and compulsion have been predicted to wipe out the incentive for investment.
I do not agree that the amended Code is legally able to cause the consequences feared. The wide apprehension that the amended Code has caused is unnecessarily exaggerated from a legal standpoint. The Broadcasting Code is law, but it is not law in a vacuum. It exists within a larger legal context and will bow to superior legislation, particularly the Constitution of the Federal Republic of Nigeria and the Copyright Act. It also cannot but operate within available contract drafting and other legal devices. This larger legal context to my mind, and more, is quite capable of nullifying any undue intentions of the makers of the amendment if it is indeed true, as suggested by some, that the real intention of the amendment is to give some players unfair advantage over strong competition.
Exclusive rights over content is guaranteed by the Copyright Act, even without the need for the contracts that the amendment now seeks to regulate. All that is required is for media such as Netflix, iROKOtv, Amazon and Africa Magic to fund productions. If productions are made fully or partly by the means of media, exclusive (ownership) rights are guaranteed by statute, and full property rights will also be enjoyed under the Constitution. Funding productions should not be so hard for these media and broadcasters if they truly would like to see the development and growth of the local creative industries. Government has pointed out that the development and growth of the local creative industries is the objective of the amendments.
It may be too much or outright unreasonable in some instances to expect media to fund audiovisual productions of sporting events, particularly the English Premier League (EPL). Granted, any one broadcaster with exclusive rights to the EPL has with this singular right positioned itself to give others no real chance to compete. Nigerians simply love the EPL. However, due to the multijurisdictional nature of such licensing transactions, the contracting parties can easily agree to have the contract governed by English laws, with English Courts having jurisdiction. Nigerian law, including the amended Code, in such an instance, will be inapplicable for the determination of the validity of such a contract. Of course, for this to be effective overall, it cannot not be done as an isolated legal strategy and in a manner suggesting a deliberate attempt to subvert Nigerian laws.
The amended Code, contrary to how it has been peddled, does not actually compel sub-licensing: neither at all nor at rates to be determined by the government. Rather it compels keeping the option open. Of course for sub-licensing to happen, it must be at commercially agreed rates; rates that are profitable but not prohibitive. The amended Code recognises this, and in trying to prevent offering sub-licensing at prohibitive rates, has provided for “Stipulated Prices,” which really is nothing but a set of indices to guide pricing and prevent unfair competition. The amended Code cannot compel sublicensing at uncompetitive rates. Rather it expressly provides that a broadcaster shall not be obligated to comply with a directive to license if it is likely to lead to the elimination of effective competition. If a broadcaster only wants to compete profitably, fairly and effectively, there is enough balance.
Broadcasters in Nigeria have historically used the excuse, “we don’t know what collecting society or Collective Management Organisation to pay music royalties to” to avoid paying royalties for music that they exploit so severely in their broadcasts. The amendment now rids the creative industries of this decades-long unholy hiding place. Broadcasters now need only to ask the Nigerian Copyright Commission what collecting society to pay, and they would be bound to pay whatever society the copyright commission points them to.
Aside law, it is my opinion that as a people, we must be willing to work with the government to protect local industries, not just a few interests. If the obvious goals of the amendment are met, the film, music, advertising, broadcasting and sporting industries will be better for it, though a few may make less profits. Clearly there is more to gain than lose for the country. However, should government officials make efforts to apply these amendments in an unfair or unreasonable manner, we must all rise against such efforts.
Justin Ige is principal at Creative Legal, a media and entertainment law firm. Justin.email@example.com