12 February 2002
analysis
As the nation moves toward increase private sector participation in the economy, one area that needs to be properly addressed is the protection of right to intellectual properties. OLUMIDE EKISOLA in this piece focuses on the "free to air" right for the just concluded Nations Cup.
Audiovisual law is an area of law that is not that developed in Nigeria and the reason for this is not far fetched, up until recently, the bulk of the practice in audiovisuals was strictly regulated with the Government (both state and federal) being the major player in the industry but the only one player in the mass medium of Television. That being the situation, there was little or no conflict until the Charly Boy/ NTA (Nigeria Television Authority) imbroglio. However as a result of the deregulation of this industry and the boom in the home-movie sub division of the same industry a lot of players are getting more and more aware of their rights and the stage was set for claims and counter claims. The aim of this write up is to examine the most current issue in the industry (i.e broadcast rights of the current Cup of Nation 2002) and to make suggestion and clarifications of the rights and corresponding duties of the players, the regulator and of course the supervising ministry.
One must straightaway point out that the facts forming the basis of this analysis are those picked up from the news either from the tabloids or from the electronic media themselves. It has been reported that the Confederation of African Football (CAF) ceded the free to air rights for consideration to a company called Groupe Jean Claude Damon who in turn had the rights sold to a South African company called TV Africa. The nature of the right sold to TV Africa was exclusive over the entire territory of Africa except South Africa. The meaning of the exclusive right is that for any television station to beam its "free to air" signals of coverage of the event to any place in the territory of exclusivity it must do so with the express permission and consent of the right owners, which in this case is TV Africa. Any television station that does otherwise will be doing something illegal. The pertinent question at this stage is that what rights does TV Africa have in the eyes of the law. It is equally important to consider the status of TV Africa itself. Is TV Africa a licensed Television outfit in Nigeria? Does it have a valid Television Licence? If not, does it then have a right that can be protected?
Going by the recent statement credited to the Director General of The National Broadcasting Commission (the regulatory body of broadcasting outfits in Nigeria), the outfit TV Africa does not have a valid Television Broadcast licence and that the nearest to a licence TV Africa has is that of a television content provider. In essence what the Broadcast Commission was saying is to the effect that TV Africa could not in law have signals to be pirated, as their signals in Nigeria being a television station signal will be illegal. The legal meaning of this is that the area of law protecting the copyright of broadcast signals of a television station will not avail TV Africa not being a licensed Television Station or outfit in Nigeria. While there may be some pedestrian logic in the argument presented above. A close scrutiny will show that that the reasoning actually contains a fallacy. If it be conceded that TV Africa has a licence for content provision then the transmission of its content to its clients (i.e. the various licensed television station could be done via satellite as other live coverage of events are done. Any broadcast of the content provided by TV Africa will be protected by Copyright. S: 7 & S 8 of the Copyright Act Laws of the Federation 1990. Once the ingredient of ownership of the work, being an audiovisual work, is established and the illegal usage too is settled then the owner has right to be protected. TV Africa and its affiliate stations can indeed maintain an action for breach of copyright of both the audiovisual work and the broadcast signal. The right to sue for breach of copyright of a broadcast signal would inure to the affiliate stations if what was actually rebroadcast was their signals. The essence of this will be gleaned when looked at from the economic point of view. The owners of broadcast rights are usually sold those rights and are expected to recoup their investment from adverts from the business public who will want to exploit the mileage that the broadcast will provide. The broadcast of the Cup of Nations 2002 for instance is being jointly sponsored by one of the newly licensed GSM providers and other companies. It was expected that an exclusive mileage would be given their products and services. In reality the reverse is the case. This is aptly represented by the fact that a major competitor of the GSM Company has been exploiting the same mileage by running its adverts and branding on a television station that does not even have the exclusive right or any right to the broadcast of the event. The economic result of this is that the mileage that was to be enjoyed by the company that paid the right owners is now being undermined as such it is not getting the expected value for its money. Both the right owner and the sponsor are being dealt with the wrong end of the stick while the broadcast station that is illegally carrying on this act is smiling all the way to the bank and reaping where it has not sown.
The interesting thing about the situation on the ground is that what the other unauthorised television stations are broadcasting is neither the content of TV Africa nor the Signals of its Affiliates. Thus the Copyright Act will strictly not be applicable to protect TV Africa and its affiliates. The pertinent question now is; how can the television stations carrying on this act be brought to book and not be seen to be able to carry on this tendency with impunity? I am of the view that the only way that the rights owner and its affiliates can seek redress is to approach the courts not in an action for an infringement of their copyright but an action couched in form of the tort of unlawful interference in business and also an action for an account of the revenue realised by the stations carrying on these nefarious activity. It is pertinent to note that the broadcast right owners are at liberty to join as defendants the entities that agreed to run advertisement the said illegal broadcast. This tort was explained by the learned authors of Clerk and Lindsell on Torts (17th edition) page 1244 to be one in which "a person using unlawful means to interfere with the economic interest of another with the object and effect of causing damage to the other person" In Merkur Island Shipping Corpn V Laughton [1983] it was held that "Such interference in business does not require proof that existing contracts have been broken or interfered with; but the cause of action exist... when the defendant has brought about the damage by use of unlawful means and this includes indirect and direct interferences with economic rights".
It stands to all reason that to be able to establish this cause of action, the plaintiff must establish among other things that the defendant must have used an unlawful means to interfere and in the case at hand it has been reported that the other stations that are broadcasting this events are pirating the signals of a cable television company without the permission of the cable television company. The very act of doing this breaches SS: 7 and 8 of The Copyright Act and as such we have "an unlawful means" being applied to interfere with the economic interest of both the owners of "the free to air" rights and their legitimate sponsors. Thus it was held in CBS Songs Ltd V Amstrad Consumer Electronics {1988) that "where the defendant commits an actionable wrong, such as authorising or procuring a breach of copyright deliberately to harm the plaintiff, he commits the tort"
Another interesting thing that was reported was the meditative intervention of the Honourable Minister for Information. While one might see his action from the politician's point of view, one is constrained to submit that business particularly such done with a view to make a profit does not easily mix with politics, the essence of the rights owner paying money to obtain the rights was with a view to making a profit. When the National Television Outfit had the rights to a sporting event recently, it barred other broadcasting outfit from transmitting the events and the Director General Of Nigeria Television Authority justifiably defended this position and no person faulted him because the authority had to pay money for the exclusive rights. One is therefore constrained to agree that what is good for the goose should be good for the gander.
The order reportedly given by n the Minister of Information allowing the Nigeria Television Authority to broadcast the events was not considerate of the rights of the exclusive right owners. It is this kind of attitude that leaves foreign investors with the mindset that the government is actually playing double standard when the issue of deregulation and private sector initiative is discussed. The Nigerian economy is said to be undergoing a restructuring to allow more private sector participation and here we have an unnecessary intervention in a strict business matter by the government. As a commentator observed concerning this issue "the recent events in the broadcasting sector may have put to test the sincerity of government policy on the privatisation exercise" and I dare say its deregulation policy. In conclusion it is submitted that the right owners should actually pick up the gauntlet and insist on their rights as provided for the laws of the land.(ACONS)
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