Creating an Enabling Environment for Nigeria’s Entertainment Industry: the Role of Law
In the 1st quarter of this year, our newsletter focused on harnessing Nigeria’s non-oil economy for the sustainable growth of the country, highlighting opportunities in various sectors including the entertainment industry. In this edition, our focus is on the entertainment industry in Nigeria.
Despite its recognition as an industry that has the potential to add tremendous value to the national GDP, the industry is far from meeting this potential. The role of the Law in creating an enabling environment for the industry to thrive and build capacity cannot be overemphasized. We have highlighted therefore, some of the challenges facing the industry and how the law can be used to address these challenges.
In addition, we have also pointed out the role of various stakeholders in bridging the gaps in the law and regulations in order to optimally protect intellectual property which lies at the heart of the entertainment industry. Sterling Partnership is also organizing a round table, pooling stakeholders in the entertainment industry. This forum is aimed to distill issues hampering the success of the entertainment industry in Nigeria and to chart a way forward. Details of this event has been provided for your attention and participation.
Do enjoy a good read.
Nigeria’s entertainment industry (including live entertainment, film, music, publishing, advertising, broadcasting etc.) has witnessed rapid development over the years and recent trends show that the industry has the potential to revolutionise the nation’s economy. Nollywood, for instance, is reported to be the third largest and fastest growing movie industry in the world, after Hollywood and Bollywood. Despite such notable prospects, Nigeria’s entertainment industry is posed with a variety of challenges which affect the growth of the industry.
Top on the list of these challenges is piracy. Although there are laws and regulatory agencies established to protect intellectual property rights, piracy has persisted. The internet and technological gadgets has proven an open haven for unauthorized reproduction and distribution of entertainment materials at no cost or for fees not accounted to the owner of such material. This practice has inevitably caused great financial loss to the entertainment industry. With respect to physical entertainment materials, the comparative quality of pirated copies vis a vis originals and relative affordability of the former creates an appeal in favour of piracy in the open market. These challenges have hampered financial investment in the industry and challenge existing paradigm of the law in affording the much needed protection.
Consequently, the starting point towards maximizing the potentials of the entertainment industry should be the creation of an enabling environment which can be achieved by the development of afit for purpose legal and regulatory framework to adequately address the challenges of the growing industry, especially those posed by technology.
In this article we have briefly considered the existing legal framework of Nigeria’s entertainment industry and expounded on perceived gaps while proffering recommendations for expanding the industry to further boost the nation’s growing economy.
THE LEGAL FRAMEWORK
The legal framework for regulating the entertainment industry is generally categorised as intellectual property law. The laws governing intellectual property in Nigeria are the:
- Copyrights Act, Cap C28, Laws of the Federation of the Federation of Nigeria 2004;
- Patents and Designs Act, Cap P2, LFN 2004; and
- Trade Marks Act, Cap T13, LFN 2004
Of the above legislations, the most central to the entertainment industry is the Copyrights Act which aims to protect literary works, dramatic works, art and music. Nigeria is also a member of WIPO and the World Trade Organisation, and has ratified several international treaties in respect of intellectual property, i.e. the Paris Convention for the Protection of Industrial Property (ratified in September 1963), the Rome Convention (Performers, Producers of Phonograms and Broadcasting Organisations) ratified in (October 1993), the Patent Law Treaty (ratified in April 2005) and the Patent Cooperation Treaty (ratified in May 2005). Nigeria has also ratified the Berne Convention for the Protection of Literary and Artistic Works 1886 (ratified in September 1963).
The foregoing laws and treaties seek to address and protect the different aspects of intellectual property including origin, term and recognition of copyright, fair and private use of copyrights, protection in the event of reproduction of sound, images and/or circulation of printed material among other issues.
The Nigerian Copyright Commission (NCC) is empowered to regulate the music, publishing, artistic and literary societies in Nigeria and the Nigerian Broadcasting Service (NBC) regulates the award of broadcasting rights, licenses and assignments. Several subsidiary legislation have also been enacted to protect copyright in Nigeria, but the implementation of effective copyright and other intellectual property protection has continued to be elusive. These subsidiary regulations include: Copyright (Security Devices) Regulations 1999; Copyright (Video Rental) Regulations 1999; Copyright (Optical Discs Plants) Regulations 2006; Copyright (CMOs) Regulations 2007; Copyright (Reciprocal Extension) Order 1972; and Copyright (Levy on Material’s) Order 2012.
Addressing the Gaps
The enormous economic potentials of the entertainment industry to Nigeria’s economy cannot be overemphasized. However, in the light of the current legislative and regulatory regime as discussed above, a lot more needs to be updated in our laws, policy and practice to make this clime suitable for the sustainable growth of the entertainment industry. Without claiming exhaustive coverage of the subject, we would be addressing these gaps under the following heads:
- Legislative reforms;
- Judicial activism;
- Regulatory/institutional reforms;
- Cohesive collective societies;
The enlarged jurisdiction of the NICN has led to the emergence of decisions which have developed Labour/Employment Law in Nigeria. An awareness, in the very least, of developments of the law from these decisions is imperative since the standards for employer/employee relationships in Nigeria now hang on them. Some of these decisions are captured below.
1. Application of international labour standards: Any international labour convention may be adopted by the NICN, even without domestication by the National Assembly, so long as same is pleaded as a treaty which Nigeria has ratified. Internal best practices can be established by leading evidence or by urging the Court to take judicial notice of the same. Relying on international labour standards, (conventions and best practices) the NICN in Ejieke Maduka v. Microsoft Nigeria Limited & ors (2014) held that sexual harassment amounts to a breach of an employee’s fundamental right to dignity of person. This gives wider latitude to courts to explore in achieving justice.
2. Hire or fire for any or no reason: The NICN has decided that contrary to common law principles in termination and dismissal, an employer must provide reasons for the termination or dismissal of an employee. It was also the decision of the court in PENGASSAN v. Schlumberger Anadrill Nigeria Limited that in every case of dismissal, all earned benefits, up to the time of dismissal, must be paid to the employee. Furthermore, if an employer terminates or dismisses an employee for reasons not stated, the court can, in an action in that regard, award steep damages against the employer. In British Airways v. Makanjuola, the Court awarded two years’ gross salary as damages.
3. Sexual harassment: Sexual harassment in the work place will be a cause of huge liability as an employee who suffers same can now claim for breach of fundamental rights. What constitutes sexual harassment includes quid pro quo, physical, verbal and, non-verbal form of sexual harassment.
4. Vindictive suspension, termination or dismissal: Any suspension, dismissal, termination or refusal to promote which is undertaken vindictively by the employer, will be struck down by the NICN. Termination of job on the basis of pregnancy also got an award of one year’s gross full pay totalling above 5 million naira in the case of Folarin Oreka Maiya v. The Incorporated Trustees of Clinton Health Access initiative, Nigeria & 2 ors (2012)
5. Resignation with immediate effect: The NICN has resolved in Beloved Patrick Anokwuru v. Omatek Ventures Plc & anor (2011)that resignation with immediate effect by an employee carries with it three legal effects: the right to leave service automatically; the employee’s forfeiture of any benefit; and the employee paying any indebtedness to his employer. The justification for this is that an employee who resigns with immediate effect is not allowed to also benefit from such immediate separation by claiming benefits from the employer.
6. Voluntary retirement: Voluntary retirement can only emanate from the employee. When an employer compels or induces an employee to “retire voluntarily”, it may either amount to compulsory retirement or constructive dismissal, depending on the facts of the case.
The NICN (as seen in the case of Miss Ebere Ukoji v. Standard Alliance Life Assurance Co. Ltd  ) now construes constructive dismissal in a variety of cases, where the employee is coerced, lured or otherwise influenced to hand in his resignation.
7. Damages for expected promotion: The NICN now awards damages for “expectation interest”. This arises in instances where it forms part of the employment contract, that the employee will be considered for promotion if he meets certain criteria. In Patrick Obiora Modilim v. United Bank for Africa Plc, the letter of employment stipulated that the employee would be considered for promotion, if he met certain criteria. The employer was held liable and damages awarded against it, for failing to demonstrate that it had considered the employee for promotion, after he had met the criteria stipulated in the contract of employment.
8. Work/Employment reference:By a recent decision of the NICN there is now an implied duty in the contract of employment for employee to provide work reference to any departing employee (seeKelvin Nwaigwe v. Fidelity Bank Plc ). A work/employment reference must be true, accurate, fair and not misleading. Anything short of this could result in the employer being liable either in contract or in tort.
9. The new 2017 Rules: The National Industrial Court of Nigeria Civil Procedure Rules 2017 provides extensively for procedure of approaching the National industrial Court for redress. It will be of great benefit for the Employers to appreciate some provisions of the Rule that touches particular instances in labour law. Particular example is Rule 14 which gives a detailed description of what could constitute sexual harassment in the work place.
10. Appeal against NICN decision:By virtue of section 243(2) of the 1999 Constitution (as amended), appeals from the decision of the NICN have in the past been construed to be restricted to questions on fundamental rights as contained in Chapter of the Constitution. This led the Court of Appeal to state the case to the Supreme Court to decide on the issue.
The Supreme Court has now decided, in Skye Bank Plc v Ananem unreported Suit No. SC/885/14 the judgment of which was delivered today, 30 June 2017 that the Court of Appeal has the jurisdiction to hear all appeals from the NICN. On the strength this decision the position of the law now is that every decision of the NICN can be appealed against.
In view of the foregoing Labour/Employment Law developments, it is important that employers, employees and other stakeholders involved in employment relations understand the changing trends and set up parameters and creative legal solutions that protect the interest of all parties involved. The nuances of equity that the courts apply in interpreting termination of employment and other aspects of industrial relations have to be considered by employees while developing employment contracts and policies. While there remains much to be desired of the Labour/Employment Law regime of Nigeria, much that was desired has come to play. It then behoves us, investors and local business owners, employers and employees, lawyers and clients to be abreast of these extant developments and seek to uphold and protect them. Employee contracts, employee handbooks, outsourcing agreements, workplace ethics and standards should therefore reflect the current position of Labour/Employment Law.
CBN Ban on Foreign Currency Deposits
By a circular dated 5 August 2015 [TED/FEM/FPC/GEN/01/015] the Central Bank of Nigeria has issued a directive prohibiting the acceptance of foreign currency deposits by Deposit Money Banks (DMBs). This directive is made in contemplation of recent statements by DMBs concerning the large volume of foreign currencies in their vaults. The directive was addressed to all authorised dealers and the general public and was to take effect from the date it was issued.
With respect to foreign cash lodgments made prior to this date, the account holder has the option to either withdraw his or her foreign currency cash or Naira equivalent. Note, however, that only wire transfers to and from Domiciliary Accounts are permissible.
FG, World Bank Sign NGN 47.4 Billion Power Plant Guarantees
The Federal Government has signed NGN 47.4 Billion risk guarantees with the World Bank in support of the 450 megawatts Azura-Edo Independent Power Plant. Parties to the agreements are the Federal Government (represented by the Ministry of Finance and Nigerian Bulk Electricity Trading Plc), the World Bank (in its role as the provider of the guarantees), the project sponsors (represented by Azura Power West Africa Limited), and various lenders (represented by JP Morgan, Standard Chartered Bank, Rand Merchant Bank, Standard Ban and Siemens Bank).
The project is scheduled to add 450MW, about 10% of the country’s current power generation capacity, to the national grid by 2018. It is the first of a series of new IPPs expected to drive growth in the power sector.
[Reported in “The Punch Newspaper”, Monday 24 August, 2015]
A housewife, an accountant and a lawyer were asked “How much is 2+2?”
The housewife replies: “Four!”
The accountant says: “I think it’s either 3 or 4. Let me run those figures through my spreadsheet one more time.”
The lawyer pulls the drapes, dims the lights and asks in a hushed voice, “How much do you want it to be?” Culled from http:www.iciclesoftware.com/