Oluwatobiloba Akinmuleya

23rd Oct, 2023 : 9;16am

16th September 2023. This date might not strike you as important but in the intellectual property world in Nigeria, it is. Netnaija announced that they would discontinue their service and would no longer list movies on their website. A move that offered creatives across the Nigerian movie industry a sense of relief knowing that their creative works and expressions would not be exploited anymore, and they could see a rise in revenue for their products. Netnaija, a movie hosting platform had been in the news for promoting piracy and illegal hosting of movies, an act which was primarily carried out by hosting movies on their site without the permission of the creators and also generating revenue by running ads on that listing platform, revenue which does not go in any way to the owners of the creative works listed on the site which attracts the traffic to that site. It is clear that the operations of the project: Netnaija clearly violated the proprietary and economic rights of creators in Nigeria and the struggle and success to bring the project down with the use of legal resources shows the importance of intellectual property rights for the Nigerian Creative.

But What is Intellectual Property and How Do Movies Come in?

Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names, and images used in commerce. It is a broad term that encompasses various legal rights, including patents, trademarks, copyrights, and trade secrets. These rights provide creators and inventors with exclusive control over the use of their creations, ensuring that they can benefit from their work and prevent unauthorized use or exploitation by others. In the context of the Nigerian creative industry, intellectual property rights are crucial for protecting the interests of artists, musicians, writers, and filmmakers. These rights grant creators the legal authority to control the use, reproduction, and distribution of their creative works, allowing them to earn a living from their talents and fostering innovation within the industry.

Now, let's delve into how movies fall under the umbrella of intellectual property. Movies, as a form of artistic expression, are protected primarily by copyright law. Copyright grants the creator exclusive rights to reproduce, distribute, perform, and display their work. In the case of movies, this means that filmmakers have control over how their films are used, where they are shown, and who can reproduce or distribute them. When a filmmaker (the producer) creates a movie, they automatically hold the copyright to that work. This copyright extends to the script, the visuals, the soundtrack, and any other creative elements involved in the film. Therefore, anyone wishing to use or exploit these elements for commercial purposes must obtain the necessary permissions from the copyright holder, typically the filmmaker or the production company. In the case of Netnaija, by hosting and distributing movies without obtaining proper authorization, Netnaija violated the filmmakers' exclusive rights to control the use of their creative works. This not only undermined the economic interests of the creators but also fostered an environment conducive to piracy, negatively impacting the growth and sustainability of the Nigerian creative industry.

The legal actions taken against Netnaija highlight the significance of intellectual property rights in protecting the rights of creators and maintaining a fair and thriving creative ecosystem. As the Nigerian creative industry continues to evolve, the enforcement and respect for intellectual property rights will play a pivotal role in ensuring that artists can continue to produce innovative and compelling works while reaping the benefits of their creativity.

Now why could this legal action be taken to bring down Netnaija?

The simple answer is that we have copyright laws in Nigeria that protect the creative works of a person and the more complex answer would be to start from Section 1 of the Copyright Act also known as “The Act” which talks about what the objectives of the act are about and these objective include to ‘protect the rights of authors to ensure just rewards and recognition for their intellectual efforts and to provide appropriate limitations and exceptions to guarantee access to creative works, so now that one has an idea about where the act stands fundamentally, the next point of call would then be Section 2 of the Act which talks about works that are eligible for this protection, where we see literary works, musical works, artistic works, audiovisual works, sound recording, and broadcasts listed therein. Now let’s bring it down to our story, movie creations involve the production of moving images that capture the story that is being told, automatically this category of intellectual property would fall under audiovisual works, a type of creative work that is offered protection by Law.

So, If Copyright is a thing that can be protected, who then owns it?

Well, that might seem tricky if we go deep into the world of Intellectual Property as you have a lot of concepts around the ownership of copyright to artistic and literary works but lets use a simple guide as given by the copyright act in Section 29 where it says - Except as otherwise provided by agreement - copyright in a collective work shall vest in the person on whose initiative or direction the work was created. Therefore, the person on whose direction (usually the artist or record label who paid for the work to be produced in the case of songs or the executive producer who paid for a movie to be produced is the person who owns the copyright, the right to protect such work from exploitation or use without his permission.

Now follow me, let me take you more into the journey, you may ask yourself, what are these protections (copyright) that are given to the artistic works, well these protections are rights that are assigned to the creators of these works. According to the act, each type of creative work has its own rights that are assigned to them, these rights are usually identical but are different where they need to be. Section 9 – 13 of the act talks about the various rights for each type of creative work but we are going to focus on Section 11 as that is the part of the act that talks about the protections offered to audiovisual works as in this case we are looking at the Netflix story but bear in mind that all other types of creative works such as literature and musical works, sound recording etc., also do have some of the rights that we are about to talk about.

According to Section 11, there are quite a number of rights that are given to audio-visual creative works, and they include the exclusive right to do and authorize the doing of any of the following acts -

(a) reproduce the audiovisual work;

(b) cause the audiovisual work that consists of visual images to be seen in public and of sounds to be heard in public;

(c) communicate the audiovisual work to the public;

(d) broadcast the audiovisual work;

(e) make any copy of the sound track of an audiovisual work;

(f) make the work available to the public by wire or wireless means in such a way that members of the public are able to access the work from a place and at a time independently chosen by them;

(g) distribute to the public, for commercial purposes, copies of the work, through sale or other transfer of ownership provided the work has not been subject to distribution authorized by the owner;

(h) make an adaptation of the audiovisual work;

(i) make a translation of the audiovisual work or any part thereof; and

(j) do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work under this section.

If you know the NetNaija story your guess is as good as mine as to the question of what copyright was NetNaija violating when it listed those movies for download on its site?. Yes, Section 11(f & g). Netnaija by making the audiovisual work of these movie producers available to the public by wireless means of the internet in such a way that the members of the public are able to access the work from a place and at a time independently chosen by them, NetNaija could be said to be distributing to the public, for commercial purpose (as they where charging for ads on the website) copies of the work, an act which is in clear violation of the copyright of the owner.

Although NetNaija had come out to say that they were following DMCA standards in that when a movie is listed on their website, producers are allowed to submit a request to have them pulled down and a such they were not in violation of the law. This is not so, as while the creator of a creative work has the right to issue a cease and desist, such as a notice to take down such content (Section 54 of the act)  which was issued to NetNaija on several occasions, fundamentally there are two broad aspects to the type of rights a copyright protection offers which are the moral right of the owner of the copyright also known as the proprietary right and the economic right of the owner of the copyright. So, while economic rights allow right owners to derive financial reward from the use of their works by others. Moral rights allow authors and creators to take certain actions to preserve and protect their link with their work, of which one of such is the right to issue permission or licenses in relation to the use and exploitation of their works. It is misconceived to say that you can put up a work on a public platform knowingly without the permission of the owner and then remove such (an action which has a process and can take some time before being resolved) upon given a cease and desist by the owner without being in breach of the copyright of the creator. No, you are already in breach from the moment you knowingly put content on your public platform for distribution which you had no permission to do. Not only are you breaching the economic rights of the creator, you are also ikn breach of their moral right to such content as they have the exclusive to issue permission to the use of that work in such form BEFORE the use of that work in such form.

Now that we have been able to tell the Netnaija Story, What Should they have done, and What should we all know?

Well, the simple answer which we have been repeating throughout this article is – Permission, yes, they are to get the permission, in legal terms - the license to use or distribute such works and a perfect example of a entity that does just that is Netflix. It is noted that before a movie goes up on Netflix, an agreement is reached electronically or physically through the signing of documents that allow a license for the use of such audiovisual work in the form at which Netflix carries on business which is the distribution of such movies. According to our Nigerian Law, in Section 30 of the act, the owner of a creative work who of course automatically owns the copyright has the legal right to allow permissions for the exploitation or use of such creative works in various forms and it is upon such permission that another person can then be cleared or allowed to use such creative work in the manner in which he has been given permission to use and in only such manner as allowed by the permission from the owner can he use the work. For example, if the owner says you can only distribute my work in the city of Aba, then the person who got the permission (license) can only then be allowed to use the distribute the work in the city of Aba.

Conclusion

Fundamentally, the key to avoiding copyright infringement lies in obtaining permission or licensing from the copyright owner. This is exemplified by platforms like Netflix, where agreements are reached before the distribution of movies. The Netnaija story serves as a powerful reminder of the pivotal role intellectual property rights play in nurturing a fair and thriving creative ecosystem. As the Nigerian creative industry evolves, respecting and enforcing these rights will be paramount to ensuring artists continue producing innovative works while reaping the deserved benefits of their creativity. In a world of ever-expanding digital platforms, the Netnaija saga illuminates the importance of upholding intellectual property rights to secure a prosperous future for Nigerian creativity.

N/B: Please note that this information is not a comprehensive overview of the topic and one would need tailored advice from a legal professional in respect to their particular situation. You can reach out to the author.