An Intellectual Property Lawyer, Sandra Oyewole takes a look at the current moves by the Minister of Information and Culture to turn the creative industry into a creative economy. In this interview with VICTOR AKANDE, Oyewole, partner with Olajide Oyewole LLP who canvasses criminal penalty for piracy offenders, also believes that it is time the Nigerian Copyright Commission left the Ministry of Justice to its lawful place in the Ministry of Information and Culture for the benefit of all stakeholders. Excerpts:
WHAT is your take on the current economic situation of the creative industry, vis- à -vis the renewed interest showed by the Federal Government?
The creative industry is our source of entertainment. It provides incredible amounts of information and is an educational resource. Statistics show how important the industry is in respect of employment and it is a viable source of revenue for the public and private sectors. For Nigeria’s creative industry to reach its maximum potential, the government must:
*Ensure that its intellectual property laws are up to date and strong;
*Implement practical and suitable funding structures;
*Create financial incentives, tax breaks etc;
*Ensure that the regulatory and security agencies as well as the judiciary are operating at maximum capacity; and
*Create the required infrastructure and enabling environment for the production and exploitation of creative works.
The stakeholders in the industry, i.e. the filmmakers/producers, directors, scriptwriters composers of music, authors, book publishers, artists (artworks), actors and other performers, the investors/financiers, legal service providers, guilds and associations, etc) have to continuously petition/appeal/lobby for any changes required.
Could you shed light on the aspect of the intellectual property laws being up to date and strong?
Nigeria does have laws that govern the industry and this reflects the attention of the government to the industry. However it is abundantly clear that some of our intellectual property laws such as the Copyright Act and the Trademark and Patent Act need to be urgently updated. With the growth of the industry over the years, the role of the government of Nigeria has steadily increased. Consider Project ACT and the Nollywood Fund set up a few years ago.
Other instances of efforts being made by the government of Nigeria include that of the Nigerian Copyright Commission (NCC) which has driven the drafting of a brand new and much needed revision to the Copyright Act. In the last month, it has been announced that Nigeria’s Police Force will establish Intellectual Property units in each state and that the Federal Executive Council has approved pioneer status for investors in the industry. These measures will significantly improve the economics of the industry and Nigeria, but efforts must not stop here.
There seems to be a rising interest among lawyers in the affairs of creative industry; is this as a result of economic viability of the sector or the need to protect intellectual property rights of the clients?
The creative industry is one in which the role of lawyers is vital to understanding intellectual property rights. Let us not forget that the creative industry is also a business in which all stakeholders require legal advice on not just intellectual property rights but also other areas such as licensing and contracts, commercial and other transactions, tax matters, corporate and company related matters, dispute resolution, etc. There are a few very well-known firms in the industry and there is no doubt that as it grows there will be more legal service providers.
One of the major problems of the entertainment industry is piracy. What in your opinion is the reason the Nigerian Copyright Commission (NCC) has not been able to make considerable impact since it was created?
Piracy, infringement, counterfeit, fake etc are a global problem and are not unique to Nigeria. Data available from INTERPOL and the Intellectual Property Office of the United Kingdom gives one a sense of the scale of the problem worldwide. It is an economic crime and for any country to seriously tackle the problem, a number of measures must be implemented and these include:
*Strong laws as stated earlier;
*Properly funded and equipped security and regulatory agencies;
*A judiciary that is able to hear cases within the shortest possible time;
*A culture and custom of nationwide public awareness and enlightenment; and
*The political will to stamp out or reduce the piracy levels.
These measures must be sustained over an indefinite periods of time and this will help to ensure that piracy levels are kept down/low. Piracy is an economic crime and has been responsible for the financial hardship of countless rights holders. The NCC is the agency with the responsibility of dealing with the piracy and infringement of films, music, books, artworks and other forms of copyright works..
What is the challenge of the NCC really?
Funding is one key challenge for the NCC. A visit to its office in Lagos also gives one a good sense of the tough conditions under which NCC officers have to operate. Despite its challenges, as I mentioned earlier, the NCC has been instrumental in ensuring that we have a brand new copyright bill that addresses the evolution of technology as well as the introduction of stiffer and more suitable penalties for the crime of copyright infringement.
When it is eventually passed into law, it will contribute significantly to curbing the piracy levels. It is now for the office of the Attorney General as well as the National Assembly to ensure that the copyright bill is passed into law within the next few months and without any further delays. A review of daily newspapers both traditional and online provides information on the investigations, raids, seizures and prosecution conducted by the NCC. Its website reveals the number of prosecutions it is involved in each year. The NCC is key in this war against piracy and with the requisite funding and support via the outlined measures; its operations can only expand and be even more effective.
There is a clamor for the relocation of the NCC from the Justice Ministry to Information and Culture, what, in your own views are the likely advantages if this is actualised?
The Nigerian Copyright Act clearly states that the supervising ministry of the NCC is the ministry responsible for culture which is effectively the ministry for information and culture. The choice of supervising ministry was carefully considered by the draftsmen of our Copyright Act. It was determined (and rightly so) that the functions of the ministry for information and culture are the most aligned with the creative industry.
This is evident in the activities of the ministry and the creative industry. It is for these reasons that stakeholders are unanimous in the request for NCC to be under the correct ministry as provided for by law. The law must be complied with and when all facts are considered, it is to the advantage of the industry that the ministry of information and culture is enabled to supervise the NCC.
Of what disadvantage will this relocation be to the Ministry of Justice?
None. The role and functions of the Ministry of Justice as enshrined by our laws remains clear and unequivocal. The ministry of justice should continue to carry out its functions diligently and judiciously.
Do you think that ‘Justice’ would miss anything is NCC is taken out of its domain?
No
Do you think that the AGF will or should play politics with the relocation of the NCC which the Minister of Information is asking?
The office of the AGF/the Ministry of Justice is bound by the laws of the land. There is no reason to play politics. Bearing in mind the importance of the creative industry to Nigeria, the two ministries should cooperate with one another to give effect to the provisions of the Copyright Act.
Does the AGF possess the power to stall the process? If yes, how do you think the Minister of Information can go about actualising this?
The AGF has no reason to stall the process. As I mentioned earlier, as the number one law officer of the law, the office of the AGF is aware of the laws of the land. Internally the ministries can work out the details of the transfer to make it happen.
PMAN is claiming that the Ministry of Information and Culture stole its idea of a creative industry summit, to what extent do they have a case?
The Copyright Act is clear on what amounts to a work protected by law. There is no copyright in an idea.
With the nature of the creative industry, is anyone or group capable of claiming ownership of an idea like a conference/summit to advance the lots of creatives?
A claim to ownership is one thing and a legal right is another. Conferences/summits cannot and are not construed to be copyright works under the Copyright Act (or even any other known laws).
From your romance with the creative industry so far, how prepared would you say practitioners are to maximize the new business environment that have them as engineers of the envisaged rise in GDP?
Historically, lawyers have been pivotal to the creative industry. For instance, it was a lawyer that led the eventual changes in U.S policy allowing Fox Networks to become the 4th network, after decades of dominance by NBC, ABC and CBS. Lawyers with a deep understanding of the laws, the operations of the industry itself as well as the economics are key to its growth.
Such lawyers are in a unique position to advise the creators of works, consider business plans and viability of the project, advise on the funding structure from the perspective of the financers and or the creators of works, draft the required agreements and lobby for any changes in policy, guidelines, regulation and the laws when needed. As the viability of the industry grows and becomes more apparent, it will in turn contribute to the growth of the GDP.
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