THE PUBLIC SPHERE
What informed the actions of broadcasting regulator National Broadcasting Commission (NBC) that recently ran into stormy waters with some privately-owned broadcasting organisations and other players in the ecosystem? The broadcasting services regulator released the sixth version of the broadcasting code without the input of players in the system. The players find the provisions of the new law repugnant because they claim it could shut their businesses.
The brouhaha around the 6th Code came as my third-year mass communication class was examining the legal and policy environment of media practice in the course Current Issues in African Media. We took it on board for interrogation. I wore the hat of educator and journalist, then called the Director General of NBC to hear their side of the story.
The draft of the 6th Code covered these areas: broadcasting standards, licensing, programming standards, programmes, and news and current affairs. It also included rules on sports rights, advertising, sponsorship, and infomercial. It also covered community broadcasting, network broadcasting, pay subscription broadcasting, and broadcast signal distribution. The other areas are technical, complaints and sanctions.
The contentious provisions are in the Amendment added and released this year. Former Managing Director of the News Agency of Nigeria Bayo Onanuga chaired the Committee on Reform of Broadcasting while Idachaba chaired the implementation committee that finetuned the final document. Key areas centre on anti-competitive objectives, web/online broadcasting, and character of Local Content. Other areas are music, sports rights, and the acquisition of sports rights. Then rules on production of advertising for local goods and services, unpaid advertisement rates, anti-competition, and national emergencies.
The contentions concern the provision of the 6th Code on intellectual property rights, programme licensing and competition. The concerned players include IrokoTV, EbonyLife TV, Netflix, Amazon, and Africa Magic. Others are all the indigenous producers of television content as well as those in the distribution chain. Some players produce sporting content such as SuperSport and local producers.
Compulsory sub-licensing is a significant contention. The Code states: “Every broadcaster must license its broadcast and/or signal rights in any genre of programming to another broadcaster in Nigeria if:
– The genre of program(s) enjoy(s) compelling viewership by Nigerians;
– It relates to a product or service that is objectively necessary to be able to compete effectively on a downstream market;
– It is likely to lead to the elimination of effective competition on the downstream markets; and
– The refusal is likely to lead to consumer deprivation.
Any platform that contravenes this provision will be given the chance to comply or risk a fine of N10 million ($25,773).
The Code prohibits a broadcaster or licensee from entering into agreements, concerted practices or taking decisions “which have as their object and intendment the prevention, restriction or distortion of competition in, or in any part of, the broadcast media industry in Nigeria; and…no broadcaster or licensee shall enter into any form of broadcasting rights acquisition either in Nigeria or anywhere in the world to acquire any broadcasting right(s) in such a manner as to exclude persons, broadcasters or licensees in Nigeria from sub-licensing the same” (Section 9.0.1). Such exclusive agreements or decisions are void (Section 9.0.2).
The Code imposes an obligation on sports and news broadcasters to sublicense premium content to other broadcasters for a fee and, if the broadcaster refuses to license, the NBC can compel it to do so.
It means, for example, that while Multichoice can bid for and obtain broadcasting rights for the Premier League, it cannot enter into an agreement or make a decision that prevents it from sublicensing those broadcasting rights to domestic TV stations (such as NTA). The person with an exclusive broadcasting license has earned the copyright to that service. Lawyers assert that as far as competition policy is concerned, a licensee should generally be free to refuse to license other firms and to restrict the exploitation of IP either to itself or its selected licensee(s).
The 6th Code stipulates the production of advertising in Nigeria for local goods and services. It says “the intention is to stimulate growth in the advertising spend which accrues to the broadcasting industry”. My students agreed with this provision for the promise of future job openings. The Broadcaster a) Shall ensure that all television and radio advertisements for airing on all broadcast platforms, shall be produced in Nigeria. Applies to goods and services of Nigerian origin, b)Shall not transmit adverts produced by foreign entities.
Inflation also happened to the sanctions NBC imposes. It amended Section 15.1.1. Light fines moved up from N200, 000- N500, 000, heavy penalties from N500, 000 to N4, 999, 000 and severe sanctions from N5m and above.
Professor Idachaba sees only a storm in a teacup rather than in the ocean. I sent a text message, and he indicated a time to call the next day and promptly answered his call.
The summation. National interest alone is the guiding philosophy of the amendments to the code. Idachaba said the 6th Code would give opportunities to more players in the industry. “We agree that if you invest money, you should get your money. But there is also a national imperative that you should share. We believe that in sharing programming content, you are also elevating Nigerian culture, elevating our traditions, and expanding the base for entrepreneurship. Other ancillary entrepreneurs will also share in the profits of the economic venture.”
What do you say to all those who have raised a cudgel to say NBC wants to kill broadcasting? Idachaba responded, “Now you are the journalist and the intellectual. You have listened to me. Is there anything here that stifles investment?
“It is greed. Essentially greed. They are not even talking to the regulator. They said at a point that we are going to fix prices. Look, I will send you the regulation if there is anywhere we said we are going to set prices. Even in this policy, we expect that the owners of rights will negotiate with interested people. Those who are interested will pay. It is not free. It is at the market level.
“But we are saying that we have a responsibility to directly through policy intervene to galvanise our local economy.”
Will the provisions of the 6h Code dampen the many positive developments in Nigerian broadcasting, particularly the entertainment segment? Netflix is planning Nigerian originals with EbonyLife TV, IrokoTV is expanding, and much more. While the debate raged, contrastingly, EbonyLife TV announced on June 23 end to its exclusivity with DSTV. It now wants to extend to StarTimes. End of argument?
The full interview will run in this medium. Meanwhile, all stakeholders need to sit down sans emotionalism to sort out the contentions. If that fails, there are other avenues for dispute resolution, including litigation. Paramount is the growth of broadcasting as the young people look forward to careers in the industry and the promise of digitisation.
Because broadcasting is pervasive and influential, citizens should also contribute. What are your thoughts, dear reader and citizen, on the issues of no exclusivity, compulsory sub-licensing and sharing of content as well as its implications for copyright and intellectual property?