VOLUME  2  ISSUE 1

Webinar Summary: Copyright and Entertainment Industries in the “NEW NORMAL”

Summary: In the cause of the discussion some issues raised includes; Benefits of copyright protection and reforms in Nigeria, The difficulties experienced by the Nigerian Artist in comparison to his foreign counterpart using United States of America as a direct case study, Investment in the film industry with regards to the viability, Key difference between the Nigeria and United States creative industry, The opportunities available in the intellectual property industry for both creatives and regulators, The issues of important clauses in an entertainment (musical work) contract and Enforcement of creative right. These are a tip of the iceberg amidst the plethora of issues discussed and solution attempted.

HOST: D. Olatunde Laoye (OL) is the Managing Partner, L & A Legal Consultants. He is a consummate solicitor and expert negotiator at the transactional end of practice. He has extensive experience in corporate and commercial practice, intellectual property, media and entertainment amongst others.

 The webinar had intriguing discussions on conceptual and practical intellectual property issues from different perspectives around the creative industries in the ongoing pandemic disruption and possibly beyond. Shared experiences and insights on the state and future of the creative industry were explored in an engaging, relaxed manner, albeit with a conversational flavour to make a Saturday morning interesting and refreshing for participants.

Copyright and the entertainment industry in the new normal is due to the unending presence of the COVID 19 pandemic. This era can be regarded as a blessing in disguise by providing opportunities to explore digital technology in the entertainment industry or the creative industry generally. The opportunities provided by digital technology should have been exhausted prior to the era of COVID 19. There is a space online that Africa is required to fill otherwise it will be exploited by those who will or who are already exploiting without authorization the rights of content creators.

MODERATOR: Adebambo Adewopo (AA) Of Counsel, L & A Legal Consultants. He is Professor of intellectual property at the Nigerian Institute of Advanced Legal Studies (NIALS) and Senior Advocate of Nigeria, the first IP academic admitted to the Inner bar.

Creative industries have always been an important cultural industry at the cutting edge of major economic and technological changes. The webinar, organized by L & A Legal Consultants, contributes to the current debates on the impact of COVID-19 (C19) on global industries, with focus on the creative industry in Nigeria. The webinar covered the broad spectrum of entertainment sectors especially music and film. It assembled a rich blend of panelists from academics, industry, regulators and IP practice in Nigeria and outside who will discuss and bring different perspectives on recent industry development including important transnational lessons especially from the US’ entertainment and copyright environment.

Aurelia Shultz (AS) is Counsel in the Office of Policy & International Affairs at the U.S. Copyright Office, DC, where she handles, among other regions, the sub-Saharan Africa portfolio. She obtained her law degree from Vanderbilt University.

United States Copyright industry is different from the Nigerian Copyright industry in that there is a synergy amongst the government and its organization to protect copyright and promote the enabling environment for the sector to thrive. Perhaps, practices in the copyright industry in the United States will not thrive in Nigeria. There is a need to study and adopt mechanisms that are suitable to the Nigerian terrain.

Enforcement of intellectual property protection should balance in a manner that emphasis is on facilitating protection of the copyright industry, thus providing an enabling environment for the generation of revenue rather than merely imposing sanctions or policing copyright works which is expensive for small creators.

John Asein (JA) is currently the Director-General of the Nigerian Copyright Commission. He is one of the best trained copyright administrators and experts in Nigeria having served in the Commission for several years prior to his appointment.

The Director General of Nigerian Copyright Commission (NCC) is of the perception that copyright industry in Nigeria has suffered the worst hit from the Covid-19(Corona virus) pandemic. We are already getting used to the ‘New Normal’ looking at intellectual property reform in Nigeria. A reform is long overdue since Nigeria signed the WIPO treaties; if we had it right, Nigeria should review copyright laws periodically.

The last amendment to the Copyright Act was in 1999, approximately two decades ago. When the world became digital in the period regarded as the millennium, Nigeria did not switch to the norm in other jurisdiction then, regarding the provisions in the Copyright Act.

However, the catastrophic nature of the pandemic has woken Nigeria up to the reality of digital technology and copyright industry. The reform in this era is a first of its kind since it will be the first in a democratic regime. The copyright Act of 1988 and previous amendments to the Act were established during military regimes in 1992 and 1999 respectively. The passing into law of the 2015 Bill is delayed because it was initially returned by the house of assembly.

The sanctions were perceived as too light. Rather than say not more than 5 years, it was preferred to say not less than 5 years. It is better to allow the Bill move on to the next stage to avoid further delay in this democratic dispensation by resuscitating the debate on the nature and purpose of the Bill. It is worthy of mention that the Copyright Bill 2015 has a wide spectrum of provisions on creative content online which is totally missing in the present Act and it has also taken into consideration other technology issues in this era.

Wale Davies (WD) is an experienced entertainment executive whose career has spanned diverse roles as a performing artiste, talent manager, and a video and film director.

Without a doubt COVID 19 pandemic has greatly affected the music industry in Nigeria. There was so much dependence on live events or performances. The notable difference in structure of the music industry in Nigeria, United States and United Kingdom is the presence of multiple sources of income from music composers and music publishers amongst others. Those sources are not available in Nigeria to provide different types of revenues apart from public performance.

There is a better understanding of legal protection of the rights of the artist, the presence of streaming platforms and redistribution of royalties in Europe. This understanding is missing in Nigeria. Moreover, in Nigeria, collecting societies are fighting battles locally and abroad, the instability they have created in the music industry is conspicuous during the pandemic. 

In Nigeria, most artist generate revenue from performance and physical distribution. The pandemic has created more awareness on streaming platforms for music to generate incomes.  Music publishing is not appreciated by most artist or creatives. It is worthy to note that supporting the interest of artist and creating a suitable structure for the legal and technological is what is urgently required in the ‘New Normal’.

Steve Gukas (SG) is an award-winning Film Producer/Director and development consultant, whose films have enjoyed artistic and commercial success around the world.

Prior to the beginning of 2020 there was an increase in both interest and inflow in the film industry. Basically, there are two trenches regarding investment in the film industry. There is investment in production and in the distribution and exhibition sectors.

Over 3 years, cinema locations have grown to approximately 62 locations.  Those interested in investing in films to be shown in cinemas were on the increase prior to COVID 19. There was a huge projection of the number of cinemas that were going to come on in 2020. The returns attracted more people to the film industry as investors. However, most of the activities in the film industry are on hold due to the pandemic. PricewaterhouseCoopers (PWC) had speculated that by 2021 the movie industry will experience an increase in the turnover of over 22 million dollars, thereby surpassing the turnover in 2019.

The advent of streaming platforms in the new normal has affected the growth of the film industry in the pandemic. However, new opportunities for creators to develop content for platforms such as Netflix is provided. The hit of Nigeria’s film market by Netflix has also increased further returns on films. Those who know their rights in the film industry are able to find other means apart from exhibitions to earn an income from their films.

Kike Aluko is a member of the Entertainment & Media Practice in the Greenberg Traurig LLP (GT) Atlanta office.

The focus should be on updating the laws in Nigeria. These laws will enable digital distribution to respond to the need in the present era. Awareness in Nigeria of United States copyright law and policy in association with global laws is key. In the United States, there is an effort to stimulate production revenue. The collecting society industry provides digital updates on the economy of copyright. There is a well-structured environment that helps to monetize copyright in this digital age and ensure the collection of royalties.

In Nigeria, the issue of piracy still needs to be tackled even though the resources available are limited. Nevertheless, there should be strides taken in finding a solution to stimulate revenue generation both in the country and globally. A virtual performance has replaced conventional concerts. COVID 19 pandemic has created new opportunities to reach out to the global audience through innovation. There are new channels on the virtual social media platforms. The question is which business model will be able to sustain these virtual platforms for the long term and which of these platforms will not become extinct.

Oyinkansola “Foza” Fawehinmi is a visionary entertainment business Leader. She is a founding partner at Technolawgical Partners a boutique entertainment law firm.

Protection and maximization of intellectual property rights to the fullest potential is what is crucial in the digital era. Artists should know their rights and the implication of having such rights as bestowed on them by copyright law. The contracts they enter into and the kind of rights granted can determine the protection of their works. Online policing is crucial in the digital era which is the focus in the COVID 19 pandemic. Officials or inspectors that can manage intellectual property online and ensure the law is enforced are proposed as a means of protecting creative content in Nigeria.

Right holders must scrutinize the clauses in an entertainment contract to be in sync with the rights they license out to licensees, whether it is the physical distribution or digital distribution or streaming. Royalty accounting and finance distribution must be considered. Intellectual property valuation in music and streaming is key to the copyright or creative industry.

Please click the link below to watch the recorded version of the Webinar.

https://youtu.be/DFypYrZ9Yd

For further inquiries, about our IPRs Talk Series, please send a mail to info@lalegalconsultants.com

Ayoyemi Lawal-Arowolo (AL) Professor at the School of Law & Security Studies, Babcock University. LL.B Lagos State University (LASU), BL, LL.M a Indiana University-Indianapolis US and Ph.D. University of Kent, Canterbury UK.

Copyright laws in the 1990s was compatible with the industry then, based on the level of technology. Piracy and the technological challenges regarding production of films or movies was limited. The difference in eras can be viewed in the production of living in Bondage produced in 1992 on VHS cassettes and that of 2019 in the cinemas and on Netflix. The production of the films and recordings are miles apart regarding technology. Developed countries keyed into the opportunity provided in the 21st century (the millennium) from a legal and technology perspective. Nevertheless, there were no changes in Nigeria’s copyright law or other aspects of intellectual property law. Gradually, technology in the copyright industry increased but still had gaps. The copyright Act has still not been able to rise up to the challenge. The Copyright Bill of 2015 is yet to be passed into law and might as well have become obsolete by the time it is passed. In agreement with the DG NCC for a better option, the Bill 2015 should be passed as it is, so Nigeria can finally cater for part of the digital era in the copyright Act.

Copyright protects the creator by providing exclusive rights to the owner. It is also important for the right holder to understand the rights they have and guard it against negative exploitation as much as possible. Good work is going on by Kunle Afolayan on Netflix Africa. He appears to be using the opportunity provided by the pandemic. In a clip I regard as an advert for Nollywood on Netflix, it states, ‘stay true to your dream and craft and the world will be in your palm’.  The entertainment industry is in the palms of those who are creators.

In my opinion, creators have to engage the space online provided by digital technology, if they do not, that space will be exploited negatively by pirates, if it has not already begun. ‘Have you ever heard someone else tell your story, take your voice and replace your face until no one else can see or hear’- Genevieve Nnaji on Netflix Africa. The creative industry has unlimited opportunities online, protectable by copyright.

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