COPYRIGHT ENFORCEMENT: THE WAR THAT MUST BE WON

Ask Adebambo Adewopo, the Director General of the Nigerian Copyright Commission, and he’ll tell you that his job is not to be envied. And you must believe him. His job is made even more difficult by the fact that a host of people in Nigeria, including people in government, are not abreast with copyright issues. Even in the best of years, and in the best of economic climates, tackling copyright related issues has never been easy. As such, one can imagine the enormity of the task during a period of economic crunch as we currently have.
From the Americas to Afghanistan, copyright infringements and the operations of pirates are big issues. But in these climes, they are not anything compared to the situation in Nigeria. Nigeria is in indeed in a very sorry state when it comes to issues of intellectual property rights. The wanton ignorance and plummeting economic situation in the country further complicates the situation. And the problems seem to be defying all the efforts aimed at nipping it in the bud. At least, that has been the case for a long time. But this time around, it looks like it is time to sing a new song, especially as the Nigerian Copyright Commission marks its 20 years of existence. The DG of NCC, along with a high-powered delegation of NCC officials, paid M2 a courtesy visit penultimate weekend. In all, he says that the greatest challenge of the NCC is to get policy makers to appreciate the centrality of intellectual property as a key index for national development. But despite the numerous challenges facing his organisation, he insists that the war in his hands is one that must be won. Elcee McEdwards captures the essence of the visit in this piece.

The Strong Reason
Copyright issues and the whole field of intellectual property have been generally regarded as esoteric in nature because of the level of awareness. But Nigeria has come to such a time that the respective industries that deal with intellectual properties must be abreast with these issues for many reasons. The first reason is that today’s global economy is knowledge-driven. It is not becoming knowledge-driven; it is indeed knowledge-driven. This is actually the knowledge age. And all the great nations of today that Nigeria aspires to be like have attained to that level in their pursuit of development. And one of the ingredients of the knowledge age is the harnessing of the human resources that is comprised in the various industries that make up those economies. Coming back home, one of the greatest endowments that Nigeria has as a nation today is human resources, and not just the natural resources. So, taken from that perspective, it is high time Nigeria began given increased attention to copyright and intellectual property issues, knowing fully well that all the activities that make up the industries are such that can generate a lot for national development. In fact, copyright and intellectual property development is generally regarded as one of the most important tools for national economic development. Be it in the copyright-based industries such as book publishing, entertainment, education, advertisement, media or the arts, effective enforcement has profited many nations that dared to promote it. The greatest export that America has today is not in their missile and weapons. America’s greatest export today is intellectual property. Statistics have shown that California, a state in the USA, is regarded as the fourth largest economy in the world. The question is: why and how? Hollywood easily comes to mind and nothing more. But there are no less endowments in Nigeria. Nigeria has enough human resources and intellectual properties that can be harnessed and used as a tool for national development. That is where the mandate of the Nigerian Copyright Commission is situated – as the sole government agency for the administration and enforcement of copyright. As such, the NCC is a key public institution that must be supported by all well meaning Nigerians..
The Mandate
As mandated by the law, the NCC is responsible for administration, on the one hand, and enforcement, on the other hand, of Nigerian copyright. The question then would be: What is it that the NCC is doing; who are your publics; and who are the beneficiaries of these issues? Under the law we have about eight categories of works that are protected. Each of them constitutes viable and vital industries in themselves. They can be regarded today as one of the important pillars of the Nigerian economy. One of them is the publishing industry. This has been the case for many years. But there are issues like piracy that has been plaguing the publishing industry. If not controlled, it will keep causing damages for the contributors for many more years to come. Coming to the entertainment industry, there has been an explosion of new talents in the country in recent times; an eloquent testimony that the industry should be harnessed. The engine room for the harnessing of these resources is the copyright enforcement, for the benefit of the right owners and for the nation. Let’s look at ICT software industry. It has been said that the software industry is perhaps one of the fastest growing industries in Nigeria in the last one decade, though Nigeria has not achieved the UN ratio of internet penetration. But the direction of software and ICT development and regulation in Nigeria can be clearly seen, especially in the telecommunication sector and the entire engine is carried by the copyright commission. How is it carried? People use ring tones which are viable copyright issues. In recent times there have been agitations by Nigerian musicians against the use of their songs for ring tones without payment. Ring tones alone can generate millions for the economy and the creative community.
There are also the visual arts, which are relatively obscure.. But there is a very huge inventory of Nigeria’s visual arts, as well as literature, education, advertisement, science and technology. All of these aspects of the economy are affected, one way or the other, by copyright and intellectual property issues. This is why the NCC as a pubic institution believes strongly in the enforcement of copyrights as having great potentials for national development.
The Campaigns
A couple of years ago, the copyright commission started a campaign called the Strategic Action Against Piracy, due to its conviction that, amidst other challenges, the biggest problem bedevilling the actualisation of the potentials of these industries is the problem of piracy. Piracy is a global problem and not just a national issue. It is only peculiar to Nigeria in the sense that its impact in the Nigerian economy is so much more than what is obtainable in other countries. This is why everybody has a stake in the eradication of piracy through copyright enforcement, rather than living it to the copyright commission alone. Piracy is killing the economy, yet it is not getting front page news like other issues of national importance. Yet the menace is greatly affecting Nigeria’s image in the foreign community, and hindering potential international companies who might want to invest in the country. A good example is Microsoft. Microsoft no.1 concern in Nigeria is whether their intellectual property rights will be well protected. Can it be guaranteed? Can it be enforced? That will be the challenge, even if we are able to convince them to come to Nigeria because of the huge market and potentials it offers. This has also affected the country’s image which is the reason for the Re-branding Nigeria Project. What is Nigeria re-branding when it is considered a haven of criminals and pirates?
Nigeria is a country blessed with a lot of creative minds and talents that could be harnessed to create wealth for Nigeria. For example, in America, the artistes that we see are instruments for creating wealth. They generate employment and bring income to the country and the economy. Is it impossible for us to properly harness these resources to create wealth for the right owners and the country at large? Of course it is. In the music industry, the works of people like Fela, and the numerous contemporary talents that we have today, are good export materials. There are huge employment opportunities that lie in properly harnessing talents in Nigeria.
The Challenge
Enforcement: In Nigeria today, enforcement is a herculean task, and that is because the machinery for adequate enforcement is not in place at the moment. The law enforcement agents themselves do not understand the issues at stake. This makes it difficulty to enforce something like copyright which is relatively obscure so to say. Other challenges include cost, resources, capacity available for the agency to deploy resources to effectively enforce.
Public enlightenment: Public enlightenment seems to be the most important strategy for the Basic Action against Piracy. This is because there is the need to build a culture that respects creativity. This is the foundation that must be laid. Nigerians must come to appreciate the value for creativity. The sad thing is that in Nigeria, Piracy, which is a crime, has been accepted as a legitimate means of livelihood, and has become institutionalised as an industry so to say. The orientation of Nigerians and the value they attach to creativity will be the key to overcoming piracy. The mission to put the pirates out of business is one that must be accepted by the markets who are Nigerians – the end users. That is why NCC plans to take the campaign to the den of pirates, the class rooms and the street corners. It also plans to take it to movie viewing centres, to let Nigerians know that they are the ones that can put pirates out of business.
Problem of Ignorance
The NCC DG was on a campaign to the eastern past of Nigeria sometime ago, a mission embarked to gain the support of some political leaders in the course of combating piracy. But the DG got the shock of his life.. In his words, “We were with the governor of a state (I will not want to mention his name) and ask if he could just stand up to say “stop piracy”, hoping that his voice will command some respect and his people will listen to him. Could you imagine the response he gave? He said, ‘Each time I see the Nigerian Copyright Commission rake the markets and stores, I feel sad because I think you are depriving my people of the jobs which provide their daily food.” Politically, this appeared to be a gain for him but it is a huge lost to the creative community. This is the kind of challenges we are facing. We need a lot of awareness and education for the public.”
Piracy has gone beyond a being threat to the national economy. A place like Alaba International Market constitutes a threat to the security of the nation. This is because such a place has become a den for criminals who perpetuate all sorts of crimes. The proceeds from piracy have also been used to fund organized crimes, terrorism and money laundry. Nigerians do not know that every pirated CD they buy is actually killing the artistes. Nigerian home videos are even in larger demand outside Nigeria. The pirate buys only one and mass produces millions of copies. It is a national question nobody is helping to provide answers to. It looks insignificant, but it has far reaching consequences coming back to our families, local communities, nation and finally back to us.
Price and Affordability
There is also the problem of price and affordability which is a potent tool in the hands of the pirates. This is because the average Nigerian can not afford an original CD or an original book. These are part of the complications that the commission has to face. And this appears to be a big challenge. The general thinking is that people can not afford the original, so they must go for the cheaper ones which are fakes.
But Nigeria’s situation is made even more complex due to the fact that there is now a very thing line between the original and the fakes in terms of pricing and packaging. That is basically because the right owners are settling to compete and sometimes cooperate with the pirates. Some years ago in Nigeria, a music CD cost N1500. Then it went from there to N1000, N700, N500, N250, N200, N150, N100, and even to as low as N70. Nigeria is the only place in the world where an empty CD costs more than a music CD. Reason: the right owners, for fear of losing out completely, are cooperating with pirates. They package in their format and sell at their prices. This is a big problem on its own, and it must be addressed.
Public Resistance
The former NAFDAC boss, Dora Akunyili, was able to close down the biggest notorious drug markets. Knowing that Alaba International Market is a den of criminals, what is the government agency doing about it. This is the question many people tend to ask. But, according to the DG, the situation of the Nigerian Copyright Commission and that of NAFDAC are not the same. The manufacturers of the original drugs and the Nigerian public gave their best to support NAFDAC. So they succeeded. But the entire creative society is so devastated that it does not even trust itself again and the government agency responsible does not even have the necessary support for effective enforcement of the law. Nigerian legislators do not even understand copyright, or so it seems, not to talk of making laws to strengthen it. The executive, on their part, seem not to have the time for intellectual properties. They are pre-occupied with telecommunication, power and oil. There is the need for a leader at the highest level to key into intellectual property rights and see to its enforcement. Public resistance is one of NCC’s greatest challenges. It is interesting to know that many the commission’s raid actions has been aborted because people say that CD is CD and they are willing to buy anyone they see. They claim it is not a crime to buy a CD. The more the CDs are being collected, the more the people are buying and the police are not helping matters either. They are satisfying their immediate appetite, but in the long run it is damaging the entire society.
The NCC insists it needs real collaborators and sympathizers to come and join hands with it. In the words of the NCC DG, “We visited Alaba about three years ago, and, as an enforcement agency that does not carry fire arms, we rely on the police force, just like all similar agencies. We were shocked with the level of counter-attack we got, and, to our surprise, the police left our harmless civil servants at the mercy of these armed pirates that are in the market. The media men that followed us were brutalized and their cameras destroyed. From our understanding, some members of the police force don’t even know the ills of adulterated products and the harm it is causing the nation. Alaba is not a place for enlightenment. All it needs is an enforcement of the law.
Place of the Right Owner
Before the Oshodi market was destroyed and rebuilt, the traders believed they were making a living, but it was at the expense of the citizens that ply that route. In the same vein, the ordinary man on the street easily gets a pirated CD at his convenience, but it has dire consequences. There is therefore the need for much more aggressive campaign and strategy to get more credible stakeholders on the side of effective copyright enforcement.
But first, there is the need for the creative industry itself to begin to be more active. This is because copyright is a private right and the primary protection is the responsibility of the owner/creator. So the role should be situated primarily to the owners. It is easy to say “piracy is killing us,” but what are the right owners doing to protect their rights. There is no where in the world where one does a job, puts it in the market to the public domain and sits back. No, you must deploy your resources to protect your work. You must act first before the state can intervene which is usually a criminal enforcement and not a civil action. The right owner is the first beneficiary of that action and is the one to act for damage and right infringement before the court. So the role of the right owner is fundamental and not negotiable. It is irreplaceable, and that is what the NCC has been preaching.
Frankly speaking, the fight is beyond what only the NCC can take on. Though the agency is responsible for copyright, yet the dynamics of tackling piracy, which is necessary for proper copyright enforcement, is beyond NCC’s mandate. So there is the need for alliances, partnerships and public-private participation. There is also the need to address the fundamental structures setting up the agency, and for stakeholders to support it as is done in more developed countries. For example, before NCC confiscate pirated CDs and prosecute the pirates, the artiste will need to testify in court that he has not authorized the duplication of his work. But at this stage many artistes disappear because the pirates would have paid them money to silence them. And to most artistes in this part of the world, that is the important thing. The NCC has lost in the law courts a number of times because the right owners compromised. But in the last one year, NCC has had over 50 cases, out of which it has secured about 19 convictions. Though this number might look insignificant, it is indeed something to be celebrated, considering the challenges on ground.
Broadcast Versus Creative Industry
Most Radio and TV stations channels do not pay royalties to artistes for works used as content for their media. But the problem is not just that of the offending stations. There seems to be a bigger problem of authentic collecting societies to receive these royalties for the right owners of the works. The media and the broadcasting corporations are even saying they want to pay artistes for airing their songs but do not know who to pay since different sets of people claim the right for the songs. The industry has been at war with itself for a long time, and this further complicates the issues. The industry of pirates are not at war with themselves; the industry of broadcasters at not at war with themselves; but the creative industry is not settled. The right owners need to come together and to speak with one voice. There are a lot of excuses, dynamics, accusations and counter accusations. The creative industry needs to put its house in order. It is only then they can test the sincerity of the broadcast media industry. But now, they have an excuse not to pay because of the crises in the creative industry.
The Alaba Phenomenon
There is the need to shut down the Alaba International Market, but is not in the capacity of NCC to do it. An average Alaba trader is armed right in his shop. This tells you that it is not just piracy that goes on there. Again, this raises serious security issues. In the words of the NCC DG, “this does not mean that we are not pushing. Because of some security issues, I will refrain from talking much about this. But the days of Alaba International Market is numbered, so to say. That’s because they can not thrive unhindered. It is just a question of time.
Production and Distribution
Distribution system is lacking in the entire chain of production in Nigeria. This is why you will find CDs being hawked on the streets of Nigeria. These are the two key points of the pirates. What the NCC is working at is regulating production and distribution by registering the production plants. Twenty years ago, there were just two CD production plants in Nigeria. Most pirated CDs at that time was imported in Nigeria from China, Malaysia and other Asian countries. But due to the anti-piracy campaigns in those places, they have relocated to because of our weak system, and they are operating those plants here in Nigeria.
It is in a bid to curb this menace that the NCC has made it mandatory to register with it. This way, the plants can be regulated to ensure that they observe best practices in the production of CDs. Today, there are fourteen production plants in Nigeria registered mainly in Lagos. It must be said here that it is not all producers of CDs that are involved in piracy, but their efforts must be complimented with proper distribution.
In pursuance of this, some of the CD production plants have been shut down, some have been fined, and some have been prosecuted depending on the degree of non-compliance with the best practices. All these go to show that there are huge business potentials in the arena of intellectual property. All hope is not lost.