THE NBC AMENDED CODE: LEGAL IMPLICATIONS TO THE CONTENT CREATION INDUSTRY IN NIGERIA.

By Path Solicitors.

The entertainment and broadcasting industry is one of the most fantastic sectors of the Nigerian economy, witnessing rapid growth and development both in creativity, innovation and revenue stream. So, it’s no wonder that the Federal government of Nigeria has cast its radar on the broadcasting sector, with the Nigerian Broadcasting Commission (hereinafter referred to as the NBC) leading the charge. Just last month, the NBC announced a set of amendments to the NBC Code. This Article provides a breakdown of the code, its legal implications and how it affects content creators, both indigenous and international.

Aim Of The Amendment

The Amendments are armed with the following goals and aspirations:

Promote local content and inclusion of local talent in broadcasting projects
Increase advertising revenue for broadcasters and content producers
Restrict and discourage monopolistic and Anti-competitive practices
Establish effective codes of practice relating to content acquisition.

Key amendments of the code directly or indirectly apply to providers of motion picture, prime sports and musical content. Providers include Pay TV (DSTV, Gotv, Startimes etc), Video-on- Demand/Streaming platforms (iRoko TV, Netflix et al), etc.

Highlights Of The Code

Highlighted below are the salient amendments to the code:

Exclusive Licensing:

According to the Code, the exclusivity of content is anti-competitive and monopolistic. Section 9 of the NBC Code provides:

“The Broadcaster or Licensee shall immediately after the coming into force of this Amendment be prohibited from entering into any form of agreement, contract, concerted practices or take any decision which have as their objectives and intendment the prevention, restriction or distortion of competition in, or in any part of, the broadcast media industry in Nigeria ; and for this purpose , no broadcaster or licensee shall enter into any form of broadcasting rights acquisition either in Nigeria or anywhere in the world to acquire any broadcasting right(s) in such a manner to exclude persons, broadcasters, or licensees in Nigeria from sub-licensing the same.”

The above provision explicitly prohibits restriction of competition by content producers. Licensees and broadcasters are prohibited from acquiring sole broadcast rights that excludes any group/individual, broadcaster/ licensee, in Nigeria from sub-licensing or accessing same rights. In this vain, the NBC has opened the flood gates of sub-licensing all and any broadcast content on the airwaves. Any agreement that excludes broadcasters from sub-licensing is rendered a nullity under the code.[1]

Local Content/Local Talent:

Section 3.15 provides:

“The Broadcasters shall ensure that for a programme to qualify as Local content, its conceptualization, production, target audience which in every case should be Nigeria, satisfies all the following:

The producer of the programme is or their producers of the programme who must be responsible for creative control, monitoring and decision making pertaining to the programme are Nigerians residing in Nigeria;
The director of the program is, or the directors of the program are, Nigerian(s); or
The author of the programme is or the writers of the programme are, Nigerian(s)
At least 75% of the leading authors and major supporting cast, including voice actors, or on-screen presenters appearing in the programme are Nigerians…”

The above provision mandates broadcasters to promote contents that are reflection of the Nigerian character and Nigerian life. The contents are to be directed at a Nigerian target audience, and should include local talent in the production of such content in Nigeria.[2] The section further requires at least 75% of lead and supporting casts, presenters, production and post-production crews to be composed of Nigerians whether the production is in collaboration with a foreign entity or not.[3]

Web/Online Broadcasting:

By virtue of Section 2.0.3 of the Code:

“All persons who wish to operate web/online broadcasting services in Nigerian territory shall be registered with the Commission.”

The section further provides thatweb/online platform owners shall bear liability for the contents posted on their platforms, and they must conform to the provisions of the code on programming standards, especially as it relates to hate speech and fake news.

Where a service provider or platform provider breaches any or all of the provisions of the Code on web/online broadcasting, sanctions as provided in the Code, including a take-down order, a block, or a shut-down shall apply.[4]

Sports Content Acquisition:

Owners of broadcast rights to prime sports events are now required to offer such rights and make it available for retail to interested broadcasters on any platform, be it Internet, satellite, mobile, cable, radio, etc.

The preamble to Section 6 of the Code states:

“It is the policy of the Nigerian Government to promote local entrepreneurship in the creative industry in Nigeria. In the actualization of this policy, the broadcast industry in Nigeria shall promote the full exploitation of Rights to Sport and other programming content for the broad benefits of Nigerian.

Therefore, the exclusive exploitation of rights, even when acquired is not permissible in Nigeria.”

Furthermore, section 6.2.10 of the amended code requires broadcasters or right owners of Prime Foreign Sports contents/events to invest 30% of the cost of acquiring such rights in a Prime Local Sports content/events of the same category.

What Does It Mean To Content Creators?

The interpretation of the code, as it affects broadcasters, has caused furor and uproar amongst producers of content. While the code will enable local talents get more attention, and music artistes will be given the opportunity to realize full monetary compensation for their work, Pay TV, video on demand platforms and broadcast rights owners have been hit with the hammer of government intervention in private enterprise. Center to this is the provision that explicitly gives the NBC the right and regulatory powers to mandate a content producer in any broadcast platform to sub-license its broadcasting rights to another broadcaster, content producer or licensee in Nigeria, on terms and conditions dictated by NBC.

Section 9.0.3 of the amended code lists the factors to be considered in determining whether an agreement is exclusive in nature or not thus:

The relevant economic market
Global trends in the relevant market.
The impact of the conduct on the number of the competitors in a market and their market shares
The impact on the barriers to entry into the market, on the range of services in the market, and the conduct on the cost and profit structures in the market.

Drawbacks To The Code

Some provisions of the amended NBC Code have raised constitutional and legal concerns as well as issues surrounding the possibility of enforcement.

Contradicts Certain Provisions of the Copyright Act:

The amendment threatens the provisions of the Copyright Act that a broadcaster or owner of a copyright has the freedom to enter into exclusive contracts, license or sell his work in any manner he or she chooses. By virtue of Section 6 of the Copyright Act[5], a broadcaster or owner of copyright has exclusive rights to do certain acts in respect of the work. Section 11 subsection (3) of the Act[6] also makes provision for exclusive licensing of a work so far such act is in writing. Furthermore, Section 8 of the Act provides that a broadcaster shall have the exclusive right to control the doing in Nigeria the recording and re-broadcasting of the whole or a substantial part of the broadcast; communication to the public of the whole or a substantial part of a television broadcast either in the original form or any other form; and distribution to the public, for commercial purposes, copies of the work.

The implication of this contradiction is that the provisions of the Copyright Act being an Act of the National Assembly, supersedes that of the Code which is a subsidiary legislation. Under the Nigerian jurisdiction, where there is a contradiction between the provision of an Act and a subsidiary legislation, the provision of the act prevails.[7]

Thus, it is imperative for the National Assembly to amend these sections of the Copyright Act to reflect the amendments in the Code in order to achieve an unhindered implementation of the NBC Code.

Enforcement of The Code:

As earlier stated, there are also concerns emanating from the feasibility of enforcing the code, chief of which is how the commission hopes to efficiently regulate multinational and multijurisdictional streaming platforms such as Amazon TV, Apple TV, Netflix, etc. Would the NBC have to go through the production portfolio of each content creator or broadcaster for each programme, in each category, to ascertain compliance with the directive to include 75% of local talent in conceptualization, production and post-production?

Being an ITU member state, Nigeria can adopt the measures provided by the ITU[8] on international telecommunication coordination. One of these measures is the promotion of Digital Object Architecture (DOA) for Information Technology (IoT) which enables tracing of online communications thus allowing levying of fees and taxes on financial transactions as well as content streaming among other online communications.

Overstretches the Powers of the National Broadcasting Commission (NBC):

By having anti-competition, intellectual property, and local content as its aim, the Code has exceeded the powers given to the NBC and have delved into areas that have other statutory bodies established solely for that purpose. The powers of the NBC under section 2 of the NBC Act[9] among other things, is the regulation and control of the broadcasting industry. This power doesn’t include anti-competition which is under the purview of the Federal Competition and Consumer Protection Commission (FCCPC) established by the Federal Competition and Consumer Protection Act (FCCPA) 2018 to promote fair, efficient and competitive markets in the Nigerian economy.[10] Matters relating to intellectual property are regulated by the Nigerian Copyright Commission.

Furthermore, the absurd nature of the provision requiring broadcasters or right owners of prime sports events to invest 30% of the cost of acquiring such rights in a prime sports events of the same category at the local level, is a cause for alarm for the broadcasters as that mandate imposes unfair financial burden on the broadcasters and also prevents freedom of contract.

Conclusion

The amendments to NBC code focus on anti-competition, prohibits non-exclusivity of broadcasting rights, and empowers local web/online content producers. Despite the complexities in legalization and enforcement arising from the amended code, the music industry is ecstatic as their most notable concerns over the years have now been given due attention. Code 3, section 18, subsection 3, as amended, explicitly provides that broadcasters are mandated to pay all sums in form of royalties to Collective Management Organizations (CMOs), in this case, the Copyright Society of Nigeria (COSON), and obtain necessary permission for the use of artwork in the form of licenses from artistes or owners of recording artwork, before such can be transmitted on the airwaves. In all, the amendment is a laudable step taken by the Nigerian Broadcasting Commission to ensuring that the broadcasting industry is flooded by Nigerians to produce regulated contents for Nigerians.

References

https://www.mondaq.com/nigeria/broadcasting-film-tv-radio/954936/regulating- nigerian-content-on-broadcasting-platforms-an-examination-of-the-amendments-to- the-6th-edition-of-the-nigeria-broadcasting-code

https://www.lawyard.ng/2020/06/29/a-review-of-the-amendments-to-the-sixth- edition-of-the-broadcasting-code/

https://www.pulse.ng/entertainment/music/what-does-the-6th-amendment-to-nbcs- broadcasting-code-mean-for-nigerian-music/9yy8f48.amp

https://www.pulse.ng/entertainment/movies/what-the-nbc-broadcasting-code- amendment-could-mean-for-nollywood-explainer/ky4fj5l

https://nairametrics.com/2020/06/14/nbc-code-why-video-streaming-platforms-say- no/

https://allafrica.com/stories/202006180295.html https://opinion.premiumtimesng.com/2020/07/11/amending-the-nigeria- broadcasting-code-a-legal-analysis-by-justin-ige/

https://www.thecable.ng/iban-asks-nbc-to-suspend-implementation-of-amended- broadcasting-code/amp

[1] Section 9.0.2 of the amendments to the sixth edition of the Nigeria’s Broadcasting Commission (NBC) Code.

[2] Section 3.15 of the NBC Code.

[3][3][3] Section 3.15.1.f of the NBC Code.

[4] Section 2.12.7.2 of the amendment to the sixth edition of the NBC Code