NOLLYWOOD BOOM STILL BOOMING IN THE COPYRIGHT INDUSTRY: STREAMING IS THE NEW NORMAL IN NIGERIA
The boom in Nigeria’s film industry without a doubt has faced some hard times with COVID 19 pandemic. However, there is a struggle by filmmakers like Kunle Afolayan and a limited others. There are various documentaries featuring this filmmaker and other filmmakers in South Africa. They speak on what they have faced during the pandemic and how they are still able to generate an income.
‘Despite the Covid-19 pandemic leaving the cinemas and movie theatres closed, festivals cancelled, film releases pushed and also leaving film production stuck, there seems to be a silver lining for the industry.’ The film citation is an ongoing project which started just before the pandemic and there is a possibility that it could be released by streaming.
 CNBC Africa COVID-19: Dramatic impact on film industry10 May 2020
<https://www.cnbcafrica.com/east-africa/2020/05/09/covid-19-dramatic-impact-on-film-industry/> accessed 2 August 2020
The question for intellectual property practitioners are; what are the intellectual property implications and, in this situation, specifically copyright. The issues examined here is a copyright protection for films generated for the internet. The demand for new content on Netflix is on the rise, ‘the TV and film industry across Africa has pivoted in order to continue producing during these unprecedented times.’
A SNEAK PEEK INTO NOLLYWOOD AND NETFLIX PRIOR TO COVID 19
In 2018, there was news on the release of the film Lion Heart on Netflix by
 CNN How TV and film productions have pivoted across Africa, 13 July 2020 <https://www.msn.com/en-us/news/technology/how-tv-and-film-productions-have-pivoted-across-africa/vi-BB16GxmX> accessed 2 August 2020.
Genevive Nnaji a Nollywood actress and film producer. She was to pioneer the release of the film on Netflix rather than the cinemas. Nigerians that subscribed to Netflix were waiting expectantly. However, it was shown briefly in cinemas before it was launched on Netflix. All hailed Nollywood on Netflix.
Nollywood is not just on Netflix, it was on Sky, it is on Amazon and the popular Iroko. The later streamed mostly low budget movies and not so low budget. YouTube is another platform housing Nollywood films. These platforms are in existence with their contemporaries the cinema which began much earlier than streaming online.
YouTube is littered with low budget movies; many by persons other than the producers. Most times the titles are changed and they are made to appear anonymous regarding the film producers. One of the challenges of online piracy it that pirates often fill a gap they perceive there is a demand for and the owner has failed to fill that gap.
 Olabisi Aguda, How Covid-19 pandemic has affected the film industry’ Businessday 26 May 2020 <https://businessday.ng/brands-
‘Cinema and pay-television broadcast operators are the worst hit in the content distribution chain. By observing the physical distancing guideline, cinemas are closed, and families have no option but to stay at home and with limited content in circulation, pay-Television broadcast operators are forced to repeat programs across their channels.’ Indeed, it is time to generate content for online purposes. The presence of the industry should be felt online. Even though broadcasters cannot but repeat programs, there should be a mechanism based on digital technology that will make the creation and distribution of creative content easier.
‘In this COVID-19 era, I think cinema culture as we know, it is gone. Even if people continue going to the cinemas, the little intimacies we take for granted would be absent – no more leaning over to the next seat to have whispered conversations with loved ones as the movies go on.’
advertising/article/how-covid-19-pandemic-has-affected-the-film-industry/> accessed 2 August 2020.
 Ruth Okwumbu, ‘The “new normal” for Nigerian Cinema’ 11 June 2020
This quotation is indeed true of the future. Netflix might be more convenient for many in Nigeria to have a movie night without needing to leave the house and purchase tickets, with their homemade popcorn and drinks that are cheaper than the cinemas.
NIGERIA’S COPYRIGHT ACT 1988 AS AMENDED IN 1992 AND 1999: BEFORE AND DURING COVID 19
A cinematograph is ‘the first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a sound track associated with cinematograph film’ The copyright owner of the film according to section 6 of the Act has the exclusive right to:
‘(1) Make a copy of the film; allow the film as long as it has visual images or sounds, to be seen or heard in public; (2) Make any record embodying the recording in any part of the sound track associated with the film by utilizing such sound track; (3) Distribute to the public, for commercial purposes of the work, by way of rental, hire, loan or similar arrangement.’ Even though it appears there is a wide range of ways to distribute films due to the era in which it was drafted there is no electronic distribution. Obviously such transmission was not taken into consideration then and that is the present situation in Nigeria.
 Section 51 Copyright Act 1988 as amended 1992 and 1999 LFN 2004.
Nollywood distribution by streaming online is dependent on copyright contracts for film. Where exclusive rights of the copyright owner are licensed to the licensee. It is worthy of mention that these contracts subsists from production to distribution. There are many people involved in the making of a film. Copyright contracts for films is an aspect of law that protects the rights of the film maker or producer; if the contents are well stated and unambiguous or uncertain, the parties can avoid miscommunication at every stage from the beginning of production to the end and distribution as well.
Agreements need to be set in place with your production team, cast and crew even from before principal photography begins.’A distribution contract is an agreement between the owner of exclusive (distribution) rights in a film (usually the producer), and a company engaged in the business of marketing such works to users and purchasers such as Netflix as streamers online of Nollywood films.
‘As competition continues to saturate the streaming television and movie marketplace, content owners and streaming services recognize the importance of exclusive content to viewers. Under an exclusive licensing agreement, content is only available through a single streaming service such as Netflix for a set period or into perpetuity. Exclusive licensing agreements are far more expensive for
Section 6(1) (c) Nigeria Copyright Act 1988 (as amended) C28 Laws of the Federation of Nigeria (LFN) 2004.
Netflix than non-exclusive agreements, but they have the potential to bring in a greater number of subscribers over time.’ It is perceived from the above quotation that copyright licenses for creative works are crucial to streaming online.
COPYRIGHT BILL 2015: WILL IT BE PASSED BEFORE IT PASSES
There are provisions in this Bill on issues of online activities and infringement of copyright. The problem is the existence of the Bill for five years without passing it into law. There is a high probability that it will become obsolete before it is passed into law. Regardless, there is an urgent need for provisions on digital technology and copyright content online in the Act. The boom in the entertainment industry requires an updated Act to function properly.
PART VII: PROVISIONS RELATING TO ONLINE CONTENT SECTIONS 47 – 54
- Notice for take down, 48. Take down of infringing content, 49. Procedure for suspension of accounts of repeat infringers, 50. Misrepresentations,
- Information residing on systems or networks at direction of users, 52. Information location tools, 53. Identification of infringer, 54. Blocking access to online content.
At least if the bill is passed, there will be provisions on infringement of online content which is long overdue. Then, the process begins again. The judiciary has
 Investopedia, ‘How Netflix Pays for Movie and TV Show Licensing’
not been helpful in the development of case laws on copyright unlike the United State where precedents are set on copyright issues by the interpretation of the law to suit the present era or demands.
Streaming is the new normal for the film industry in Nigeria and it has provided the opportunity for those in the industry to explore the online space and fill up the vacuum created there. The Covid-19 pandemic hitting the cinema with high budget films and physical distribution of low budget films has made real the fact that the digital era requires more than the ordinary. Streaming has been the easy way to continue to view those films that cannot be shown in the cinemas or bought in retail stores.
In addition, the pandemic has shown that that the Copyright Act of Nigeria cannot cater adequately for content created in the digital era and it is 20 years in need of repairs. The Copyright Bill of 2015 drafted a few years ago was the much awaited transformation of copyright law in Nigeria. However, this bill is gradually losing its essence. In the situation Nigeria finds itself, it is preferable that the Bill is passed into law as it is, rather than recalling for another update before it is passed into law. Content creators, streaming services, regulators and prospective investors should re-evaluate their steps to creativity and the mode of protection available for their creativity in copyright contracts in light of the new norm in the ever-booming Nollywood.