The Nigerian Broadcasting Commission (NBC), a few weeks ago rolled out a new code, the 6th actually, ostensibly meant to streamline the operations of the broadcast industry.
I have taken time to study this code and quite frankly, it seems to be an antithesis of what it purported to address.
It stifles creativity by proscribing exclusivity of contents, as it also encroaches on some extant provisions of the Copyright Act of 2004.
Some examples would suffice.
Item 7.9.0 and 7.9.1(a) which deals with unpaid advertisement rates which apply to advert placement on all broadcast media is, to all intents and purposes, a violation of the contractual obligations between the broadcast media and the advertisers.
7.9.1 states inter alia:
‘The broadcaster shall notify the Commission of outstanding and unpaid invoices whether used by itself or on its behalf, any advert on their platform after it has remained unpaid for a period of 44 days.”
The NBC cannot constitute itself as a meddlesome interloper in the contractual deals between broadcasters and advertisers. If for whatever reason, an advertiser defaults in its payment obligations to a broadcast station, the NBC has no right to interfere about this. It is at the discretion of the broadcast station if it wants to be flexible with advertisers in the payment of its advertisement placements.
It is akin to a situation where a third party comes in when a bank gives a loan to a customer. If a customer defaults in the payment of the loan, it is within the contractual terms of the two parties to work out their loan repayment schedule or seek a judicial reprieve. It is therefore on overkill for the NBC to move in when an advertiser defaults in the payment of advert placements.
Also, a perusal of item 3.18.2(e) and item 3.18.3 that have to do with the payment of royalties for artists. For ease of reference, I reproduce that provision hereunder:
3.18.2(e) ‘The broadcaster shall ensure that payment of royalties for all artistic and musical works is done promptly.
3.18.3: ‘Prior to the use of artistic work by way of publishing performance, production, reproduction, translation, distribution, adaptation, translation, broadcast and/or the making of a cinematograph film or a record in respect of a musical by a broadcaster, the broadcaster shall:
a. Obtain the appropriate licence from the owner or exclusive licensee sufficient to authorise the use contemplated and shall pay all applicable licence fees and/or exclusive licensee of the copyright; and;
b. Pay all sums, if any, payable to the collective management organisation and thereby obtain a clearance that is required as a result of the broadcaster’s use of the Sound recording on the Work, immediately after receipt of notice to such effect.
c. Failure to effect payment of the licensee fee and obtain the clearance before prior use by the broadcaster as described above shall amount to a Class B offence under this code without prejudice to the right owner’s right to lodge a report with the Nigerian Copyright
‘Commission for prosecution as well as seek civil remedies where applicable.’
This provision is clearly in conflict with the duties and responsibilities of the Nigeria Copyright Commission.
More worrisome are the provisions contained in items 9.0.1 to 9.0.3, pertaining to the exclusivity of content. That provision proscribes exclusivity by making content sharing with competitors mandatory. This certainly is a death knell to creativity. The code went further with magisterial finality, by declaring in 9.0.2 that “any agreement by a broadcaster or a decision which is prohibited by 9.0.1 shall be void.” Nothing could be more overbearing. This clause would certainly not stand the legal scrutiny when challenged in court. Apart from the fact that this provision is nebulous, as it did not define the nature of such anti-competition actions, this provision, apart from stifling creativity, is also a breach of the intellectual property rights of the broadcaster and content owners. What happens to the agreements/partnerships entered into by broadcast stations and independent producers, particularly with foreign concerns, particularly with humongous investments?
Apart from the overbearing nature of these provisions, it’s obvious that the implications of the combined reading of items 9.0.1, 9.02 and 9.03, apart from being unconstitutional, are at variance with the extant provisions of the Copyright Act.
Finally, while one concedes that the NBC’s intention may be altruistic, it nonetheless overreached itself by these omnibus provisions which would do more harm than good to the broadcast industry, content creators, and independent producers, who are still reeling from the economic effects of Covid-19.
These are people who have heavily invested in buying and/or creating content. This would certainly serve as a disincentive and even rupture already signed contracts/partnerships.
This would do more damage than good to the industry.
It is heart-warming that the NBC has indicated that it would engage stakeholders in smoothening the rough edges in the new code. One hopes that a holistic approach to amending this code would stave off the legal landmines as contained therein.
The current situation could have been avoided if the standard regulation-making procedure of wide industry consultation and taking input from the public had been followed. This, clearly, was not done, the reason the NBC is just inviting input from stakeholders. Democracy, which we practise, should permeate every aspect of our national life, particularly rule-making.
• Akinnola, a journalist, is Director, Media Law Centre