Piracy: don’t blame the NCC yet

AS usual, you were right in your submission in your column of August 10, 2013 that if the National Distribuition and Exhibition Framework (NDEF) could be fully implemented, it can create the much-desired legal distribution owners at different levels of our society and that these distribution ownerships can serve useful purposes in the fight against the present endemic piracy that daily threatens the meaningful existence of our entertainment industry, particularly the movie segment. However it is important for all of us to realize that the mandate of Nigerian Copyright Commission (NCC) does not extend to creating the copyright or in the case of movies, distribution owners. Unless and until they are created in all our communities nationwide, we will not be fair to blame NCC for not being effective in the fight against piracy. I admit that their occasional comedy of seizing and burning the so-called pirated copies of movies is irritating but this is not about holding brief for NCC or putting the Censors Board in the dock. It is just that we need to clearly understand the scope of each of the governmental agencies and what they are meant to regulate, administer, promote and or support within the industry. That way, we will know who to hold responsible for what. It is also not about trading blames but imploring that we match our expectations to the enabling legal mandates of each of the agencies.

Whenever a film is released for public distribution, there are two distinct and legally-separable owners for it; the copyright owners that produced the film and the distribution proprietorship created by the valid distribution contract between the copyright owners and a licensed distributor of the National Film and Video Censors Board (NFVCB). Even if the production and the licensed distribution companies have the same owner, there must still be a written transfer between them as a formality. The three major aspects of a valid distribution contract are the period covered by the contract, the territory and the amount payable. The distribution proprietor must also before the release, place a public announcement in at least a national newspaper to establish their proprietorship and as a notice to the copyright owners to hand off the movie until the lapse of the agreed distribution period as enshrined in the distribution contract. Now in reality, it was the copyright owners, the producing company that initiated cases of piracy and most of them neither had the distribution license by the NFVCB nor a working agreement with a licensed distributor, so it was a case of using illegality to fight illegality! Most of the time, the pirated movies were not censored by NFVCB!

Even where the licensed distribution company was the one fighting piracy, it was either that there was no formal and legally-valid distribution contract between the copyright owners and the distributor or where both the producing company and the licensed distributing company are owned by one person, the process of a formal transfer of the movie by the producing company to the licensed distributing company or inter-departmental transfer IDT – in case of the same company that produced also holding the NFVCB’s distribution license was usually not followed, so it was still an imperfect and flawed platform of the fight. All these do not reduce the criminality of piracy but they make successful prosecution difficult if not impossible. Secondly, since the major distributor had in effect delegated their distribution ownership and authority to the mass of retailers selling the movies at different communities, it was any of such empowered retailers in whose territories the infraction of piracy took place that ought to have initiated the legal proceedings of copyright infringement.

But again, there hardly was ever a formal contract between the major distributor and the retailers to establish their legal relationship and where there was, there is still the problem of the retailers not having specified operating territories by NFVCB to easily prove their rights as the authorized distribution proprietor of their areas and doing legitimate business where the piracy happened against the pirates. The operating guidelines to the licensed distributors stipulate that they must submit the list of their retailers across the country to the Board before the start of distribution or where that is not possible to make the returns not later than two weeks after release but this is observed more in breach! Some will argue that the retailers don’t have the necessary resources to successfully prosecute the pirates but that is precisely why the NDEF stipulate that National Distributors must have presence in all the geo-political zones, while the Regional Distributors have theirs at each state capital of their zones to give their authorized retailers the necessary support in the fight against piracy wherever and whenever it happens within their territories.

Another argument could be that the roadside traders will not have adequate interest in fighting piracy in their domains on behalf of the major distributors but this will only demonstrate an insufficient knowledge of the provisions of the NDEF and how it is programmed to operate. Every licensed community retailer is an authorized agent of the NFVCB in the assigned territory. The foremost responsibility of each retailer is to monitor and ensure that there is no piracy of movies in their territory, particularly movies that they have not invested in by buying the distribution right for the territory from the main central distributor. Where the retailer condones any copyright infringement within their territory, or fails to monitor or report any illegal activity in their territory, the Board can withdraw the license of that retailer. Now because the NDEF is yet to be fully implemented, it is the same community retailers that ought to prevent piracy in their domains that are themselves the main vehicle of piracy across the country, selling more pirated movies than the legally-acquired ones! There is a provision for the NCC, Police, EFCC, State and LGA agents to regularly go into the shops of the community retailers to inspect their books and ensure that they are retailing only the legally-acquired movies, but they can only start to do this if the NFVCB, that is legally empowered to create these retailers through-out the country, register and license them; attach each to a specified geographical territory such that there is no inch of Nigeria’s geographical spread that is left out uncovered, and then formally inform them and the general public.

The summary of all these is that the basis upon which NCC can meaningfully fight piracy has to be provided by the NFVCB and till that is done, I believe we should not blame the NCC for not being effective in the fight against piracy yet. It is also important to appreciate the position of the NFVCB that with the size of our country, the Board needs financial support to be able to carry out the delineation of community retailers territories nationally just as INEC did before the 2011 elections, carry out extensive publicity and promotions of the NDEF so that it can carry all the stakeholders along in the registration and licensing of the community retailers across the country. That is why I suggested earlier that for the FGN’s grant of N300 billion to achieve the desirable impact, the bulk or almost all should be expended in funding the necessary infrastructure that will effectively strengthen our DTH (Direct-To-Home) distribution network. In plain English, it means providing the Board with adequate financial wherewithal to conclude the implementation of the NDEF.

—Yinka Ogundaisi is a writer, filmmaker and public commentator

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