Related Right Protection In The Broadcasting Industry

By Anthony Onwukwe

Introduction:

The broadcasting industry in Nigeria has developed so much in recent times . Access to the latest technology and information has increased exponentially in the internet age, sparking creativity among the public who are now generating and sharing original works in significant volumes. This presents the media and broadcasting industry with numerous challenges

There exist an important need for efffective protection of the rights of broadcasters of their broadcasts. With the availability of Related Rights protection available for broadcasters  due to the activity of bringing contents to the public, it is important to understand whether this right has been effective and exercised efficiently by broadcasters , pointing  out the loop holes in the protection of broadcasters/broadcasting companies in Nigeria.

The  objective of this article is to give an exposition on Related Right Protection for Broadcast Industries. As well as the various facilities , laws and regulations in Nigeria as well as International legislations, which provide for the Related Right Protection in the Broadcasting Industry . The challenges hampering the protection as well key innovations which can enhance effective Related Right Protection for broadcasters/broadcasting companies in Nigeria.

Explanation of Terms.

1. I) Broadcasting: Broadcast media involves electronically and Simultaneously sending information information, signals ,print messages, audio or video content to a vast group of recipient, using television ,radio , newspapers, magazine , digital media platforms including internet , emails, texts, and in recent development, podcasts.

It involves a systematic dissemination of contents for reception for a vast audience who possess receiving mediums. It may be audio as in radio, visual or a combination of both as in television.

Under the General Principle of National Broadcasting Code 2016 sixth edition, (as amended) 2020, broadcasting is described as a creative medium characterised by professionalism, choice and innovation to serve the interest of the public. Its utilisation of audio and video technology makes it capable of reaching the audience simultaneously,availing mankind with the best means of information dissemination and reception. It also enables the individual to share in and contribute to the best of his ability, to the world around him.

For the purpose of this  work , broadcasting can be defined as the medium of disseminating information to a large audience through print , audio, visual forms or other digitalised mediums.

1. ii) Related Rights: Related Rights or Neighbouring Rights , is a type of intellectual property Protection associated with copyrighted works. For creative works to be consumed by the public , there are key players who play active roles in bringing the creative works to the public. These key players do not own the Copyright of those works ,but harness the works to be much appreciated by the public.

The purpose of Related Rights, is to protect the legal interest of certain persons or organisations who contribute to making or bringing the works available to the public or those who add technical or organisational skill to the work. It also offers the same kind of exclusivity as Copyright. It covers things that involve the work in the general sense of bringing it to the public.

The class of persons who can exercise this right are ; performers of sound recording , producers of beats,phonograms ,etc and then our focus , broadcasters.

N/B : It is important to underscore that  Related Rights for broadcasters dwells on their creation and economic input through the assembly of programs or the broadcast signal and its  delivery to the audience . It does not emanate from the contents of broadcast or from the film, music etc , but from the principal act of broadcasting . The fact that they possess the ability to emit the signals constituting the broadcast,  automatically gives them protection of right in those signals.

Also, Broadcasters put in reasonable investment and efforts in putting together and broadcasting the various programs. It will be justified for broadcasters to control the transmission and retransmission of their Broadcasts.

 CURRENT  STATE OF RELATED RIGHT  PROTECTION IN NiGERIA.

At  the domestic level there has been moves in the advancement of Related Right Protection in Nigeria. There has been enactment of legislations such as  the Nigerian Copyright Act (Cap 28 , Law of Federation of Nigeria (LFN 2004) .Section 1(1) of the Nigerian Copyright Act listed works eligible for protection to include literary works, music works , artistic works , Cinematographs, sound recording and broadcasts. Thus broadcasts in any form of method is eligible for protection including cable.

In the  Broadcasting industry, there exists the  National Broadcasting Code 2016 sixth edition (as amended) 2020 which established the National Broadcasting commission which  is vested with the responsibility of regulating and controlling broadcasting activities as well regulating  rights and assignment of those rights in Nigeria .

In the international sphere , Nigeria is a member of the World Intellectual Property Organization (WIPO) and the World Trade Organization ( WTO). Nigeria is also a signatory to the Rome Convention providing for the right to authorise and prohibit rebroadcasting.

Additionally, the Nigerian Legislature has given ascension and ratification of the WIPO performance and Phonograms Treaty , WIPO Copyright Treaty, Marrakesh Treaty and Beijing Treaty. The Beijing Treaty provides for Related Rights for audio visual performance , and in their performance the incorporation into audio visual works.

However despite these facilities put in place in the enhancement of Related Rights in Nigeria, there are still major deficiencies in the system. A 2012 study undertaken by Industry experts, indicates that Nigeria Is ranked among countries were piracy is most prevailing with statistics as high as 82% , 83% , 83% , 82% and 83% in the respective years of 2007, 2008, 2009, 2011 and 2012. And the situation of piracy is still on the rise.

Also, there  exist lack of enlightenment about the requisite protection as well as the  disfunctionality of administrative bodies to oversee the various IP recognitions in Nigeria.The weak enforcement mechanism and the absence of penalties and sanctions in our laws for violation and infringement of rights also constitute a deficiency.

Lastly , not all relevant existing IP related laws have been ratified and domesticated in according with Section 12(1) , Constitution of Federal Republic of Nigeria (as amended) 1999.

THE NEED FOR EFFICIENT RELATED  RIGHT PROTECTION FOR BROACASTERS.

The need for Related Right Protection for Broadcast industries is very much evident in the area of signal piracy. Signal piracy can take physical form such as the unauthorized recording of broadcasts on video tapes , DVDs or USBs .it can also be virtual such as the unauthorized redistribution of signals over the air or online. Hacking into encrypted pay TV signal with equipment designed to circumvent security measures is another form of signal piracy.

While live sports broadcast have been a particular target for unauthorized retransmission on the internet, the broadcasters have lost millions in signal piracy coupled  with lost pay TV subscriptions and advertising revenue .

In sport events for instance, the sale of broadcasting right is a major source of revenue to event organisers. Also digital piracy, poses serious threat to sport event organisers which face difficulties to protect their exclusive rights over the event broadcast.

By frustrating the investments made by broadcasters, inadequate Protection undermines the public interest making it difficult for broadcasters to meet rising demand for access to broadcasting signals such as through hybrid TVs , smart phones , tablets and the likes.

Piracy of broadcasts brings about loss of compensation from entities that retransmit the signals such as Cable and IPTV operators. It also brings about loss of revenue from advertising especially when it has been stopped from program and technical quality being reduced

Huge sums of money are paid by Broadcasters to acquire and distribution content of highest technical quality and in the conversion of analog transmission systems to digital transmission system. No Protection or weak Protection places the return on investment to be placed under threat.

One basic fact is that , radio and Tv broadcasters are very important in developing and sustaining an informed and engaged society and in fulfilling development objectives such as ensuring the public right to receive a diversity of independent information , fostering democratic and other fundamental social values such as basic freedom of expression ,by providing platforms for citizens to air their concerns and offering educational programming.

Broadcast piracy undermines investment in these programs and as such affects the will of creators who contribute to the production of the programs but also weakens the regulatory policy that underpins them.

INTERNATIONAL LEGISLATIONS / TREATIES PROVIDING FOR RELATED RIGHT PROTECTION.

• The first organised international response to the need for legal protection of related right beneficiaries was the conclusion in 1961 of the Rome Convention or more specifically The International Convention For The Protection of Performers, Producers of Phonograms and Broadcasting Organization.. it was an attempt to establish international regulation as few national law existed at the time.

Article 13 the Rome Convention which is in consonance of Article 15 of the Trade Related Aspect of Intellctual Property Rights (TRIPS) Agreement) confer broadcasters the authority to prohibit:

1 The rebroadcasting of the broadcast . In the landmark international case of Fraser v Jones TV LTD ( 1984 ) 1QB.434,;an injunction was granted to prohibit the rebroadcasting of the respondents TV show ,by plaintiff which published the same without authorisation.

2 The Fixation (recording) of the broadcast , meaning fixation of such broadcast in a medium.

3 The reproduction of such fixation where it is stored in a DVD or multiplication  of the broadcast in a DVD by another person . And the Communication to the public of the television broadcast.

4 The  communication of their broadcasts to the public in places where an entrance fee is charged

Article 14 of the Rome Convention sets a minimum term for the protection of broadcasters’ rights of twenty years from the end of the year in which the broadcast was first made, confirmed by the TRIPS Agreement (Art. 14.5). However, the Rome Convention is limited to broadcasts intended for the public [Art. 3(f)]

121 The Brussels Convention closes this loophole by providing for protection of satellite broadcasts not intended for direct public reception. .

• WIPO Performances and Phonograms Treaty (WPPT) concluded in Geneva in December 20 1996 together with WIPO Copyright Treaty. This treaty was developed to offer further protection of performers and producers of phonograms with regards to the exploitation of digital platform including over the internet-Article 5 -10 WPPT. It was entered in force ,May 20 2002.

Under some national laws additional rights are granted . For instance in countries of European Union(EU) producers of Phonograms and performers are granted a right if rental in respect of performed audio visual works and some countries grant specific rights over cable transmission.

• Beijing Treaty on Audio visual works. The Beijing Treaty on Audio visual performance (BTAP) adopted in June 2012 covers the related Rights of audiovisual performers in their audiovisual works and performers.

N/B It is to be noted that updated protection for broadcasters has not yet been addressed in a multilateral way. The Rome Convention is still the only international benchmark for protection in the broadcasting field.

 KEY INNOVATIONS THAT CAN HARNESS RELATED  RIGHT OF BROADCASTERS IN NIGERIA.

On proper assessment , the following can harness Related Right Protection for broadcasters in Nigeria. They Include

• A National Related Rights Law . The Copyright Act is not enough ,though both IP rights are similar but a distinct Related Rights law, will provide for the adequate protection needed. It should aslo include sanctions for infingements.
• There should be an establishment of a Nigerian Broadcast Tracking and Regulatory Commission. Which would be saddled with the responsibility for establishing guidelines and tracking of piracy of broadcasts in the internet space.The body should entertain applications of infringement and can order closure of broadcast companies who are guilty of signal piracy especially in the internet space.

However the fact must be appreciated ,in that according newly amended NBC Code 2016( as amended) 2020 , all operators, web and online broadcasters are now required to register with the NBC. The owners of the platform shall be responsible for their content and must comply with all laws and regulations including those relating to fake news and hate speech. In effect, online platforms like Netflix and IrokoTV and other online broadcast platforms, are now required to be registered with the NBC.

One Innovation in this current law , that raises worries on the exclusivity of rights is the prohibition  of  exclusivity of sporting rights in Nigeria. It further states that bids for sporting rights in Nigeria must be reasonable and subject to verification by the NBC. Where a broadcaster acquires a right to broadcast live foreign sports events, the broadcaster must make the right available to other broadcasters.They are mandated to offer those rights ti broadcasters  in(ii) Multipoint Microwave Distribution System (MMDS); (iii) Cable (Fibre Optics; (iv) DTT (Terrestrial); (v) Internet; (vi) Mobile; (vii) Internet Protocol Television (IPTV); and (viii) Radio.

Another provision in the amended law that raises concerns is the prohibition of exclusive licencing, which from acquiring any broadcasting rights in such a manner as to exclude persons, broadcasters or licensees in Nigeria from sub-licensing same.

• The broadcast Industry in Nigeria is multi million dollar industry, thus there is need for a strong Intellctual property legal framework harnessing the protection of broadcasters paying cognisance to the development in science and technology and the growth of digitalised mediums of disseminating content to the public.
• There needs to a purposeful collaboration between the government and broadcasting companies to identify challenges, dialogue solutions which will lead to the development of viable solution to enhance the protection of infringement of right of broadcasters.
• It must be pointed out that most of Nigerian IP laws and those domesticated are old and static and have not embraced the digitalised trend and modes matching the 21st Century global market place. For there to be effective protection there needs to be a revamp of the domesticated laws and a proper review of the laws to provide Protection of digitalised modes that suit the digitalised broadcast sphere.
• it is important to reiterate that a very serious challenge facing IP right owners in Nigeria is lack of efficient deterrent enforcement system. A revamp of laws can not produce good results if mechanism for enforcement of procedures is not enhanced. Law enforcement agencies particularly the police and customs need to be more empowered to carry out policing and prosecution of offenders. The officers need to be trained with modern technologies for desired  result to be attained.
• As canvassed, there needs to be a National Policy on IP for the IP system in Nigeria .A National policy on IP which will spellt out in clear term the overall IP goal of the nation, will serve as a foundation for the acheivement of long term goals.
• There needs to be an establishment of special IP court in Nigeria to entertain IP related matters.
• There is a lack of IP cases in the country which indicates that more efforts need to made by IP lawyers, Judges , law teachers, regulatory bodies , law reform commission and the general populace towards developing IP jurisprudence . Likewise, judges are to be trained to be familiar with  IP laws of the nation and its implications.

 Conclusion:.

For enhanced Protection of Related Rights in Nigeria there needs to be a revamp and reconstruction of our IP system with strict enforcement of laws and regulations. When that is done , a strong framework will be made possible.which will enhance improved investment in the Broadcasting sector and an improved economy

The proposed Nigerian National IP policy will be a platform and a mirror that reflects for the international community what direction our IP structure is headed and the way forward   and the international conventions and treaties Nigeria needs to ratify

Reference:

Femi Olubanwo and Oluwatoba Oguntuase,Banwo and Ighodalo, Streghtening Intellectual Property and Protection in Nigeria.

Related Rights, WiPO training Material, General Course on Intellectual Property