Nollywood’s Absurd Demand for a Constitutional Right to IP in Nigeria

It is no longer news that Nigeria is seeking to amend its copyright law. Nollywood, Nigeria’s popular film industry, however has some complaints with regard to the amendment of the Nigerian copyright law. According to an article dated 28 November 2015 and published in a Nigerian newspaper, Vanguard, Nollywood apparently has its own demands that it expects to see reflected in the reform of the Nigerian copyright law. Nollywood feels that the Nigerian Copyright Commission, the regulatory agency in charge of copyright in Nigeria, has not carried the film industry along in the reform process.

According to the newspaper report, Nollywood’s demands are contained in a paper titled, ‘Nigeria’s Film Industry Copyright Manifesto.’ I do not have access to this document but the newspaper report provides some clues as to the contents of Nollywood’s demands. Among other things, Nollywood wants ‘more robust provisions targeted at curbing online pirating of films.’ Nollywood also wants ‘a specific broadcast right’ because ‘section 6(1)(c) of the Copyright Act does not specifically mention “the broadcast of a film” as one of the rights of a copyright holder.’ Nollywood is equally requesting for the criminalization of ‘the making, selling, using or stocking [of] devices that circumvent anti-copying technology.’ I do not intend to assess the merits or otherwise of these demands in this post. It is unsurprising that the Nigerian film industry is seeking to secure stronger rights to protect the interest of film producers. However, I believe this can be done without necessarily making absurd demands.

Apart from the demands highlighted above, Nollywood is also demanding for the introduction into the Nigerian Constitution of a right to intellectual property. Nollywood wants Nigeria to follow the Kenyan model in this regard. Article 40(5) of the Kenyan Constitution provides that, “The State shall support, promote and protect the intellectual property rights of the people of Kenya.” It is noteworthy that Article 40(5) is ensconced within the context of Article 40 of the Kenyan Constitution which deals with the protection of the right to property. Importantly, Article 40 is located in chapter 4 of the Kenyan Constitution which contains the Bill of Rights. In other words, Article 40(5) appears to equate intellectual property rights with property rights. Article 40(5) also seems to suggest that intellectual property rights share the same status as other fundamental human rights contained in the Kenyan Constitution.

I really have no clue why Nollywood feels intellectual property rights should be constitutionalized in Nigeria. As it has been noted previously on this blog, intellectual property rights (including copyright and patent rights) are not human rights. Furthermore, intellectual property rights are distinct and should never be confused with real property (though they might appear to share some similarities). Perhaps, Nollywood has failed to properly consider the broader implications of this absurd demand.

Firstly, if intellectual property rights are deemed to be human rights, it can exacerbate the tension already existing between fundamental human rights (such as the right to health) and intellectual property rights (such as patent rights). By the way, if you think there is no such thing as the right to health in Nigeria, you might want to read this judgment. I don’t need to bore you with examples to show how patent rights on pharmaceutical products can affect the enjoyment of the right to health. Just ask poor patients living in India or South Africa. NGOs like MSF will equally be happy to educate anyone on how patent rights can affect access to medicines. Apart from its potential impact on the right to health, Nollywood’s demand can also exacerbate the conflict between copyright and the right to freedom of expression. Indeed, without transforming intellectual property rights into fundamental human rights, intellectual property rights (as ordinary rights) naturally conflict with a number of fundamental human rights. So why do we need to up the ante in this regard in Nigeria?

Secondly, Nollywood’s demand appears to be based on the assumption that the Nigerian government is not already supporting, protecting and promoting the intellectual property rights of Nigerians. What about the various enactments governing intellectual property rights in Nigeria such as the Copyright Act and the Patents Act? I think we need to draw a distinction between a total failure to protect and promote intellectual property rights on the one hand and the need to strengthen existing mechanisms for the protection and promotion of intellectual property rights on the other hand. I believe the latter can be done in Nigeria without following the Kenyan model of constitutionalizing intellectual property rights.

In a future post, I intend to examine some Kenyan case law to show how the Kenyan courts have interpreted Article 40(5) of the Kenyan Constitution. For now, I can say this much: in my own view, the Kenyan Supreme Court appears to have endorsed the position that Article 40(5) of the Kenyan Constitution is merely hortatory. I sincerely hope that Nigerian lawmakers  ignore and reject this absurd demand by Nollywood.

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