[Desmond Oriakhogba, reposted from University of Cape Town IP Unit, Link] On 4 October 2017, Nigeria deposited during the 57th meeting of the WIPO general assembly in Geneva four ratification instruments concerning the WIPO Copyright Treaty (WCT) of 1996, the WIPO Performances and Phonograms Treaty (WPPT) of 1996; the WIPO Beijing Treaty on Audiovisual Performances of 2012 (Beijing Treaty); and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled of 2013 (Marrakesh Treaty) with the WIPO. The ratification instruments were signed by the President of The Federal Republic of Nigeria (President Muhammadu Buhari) on 24 August 2017.
Consequently, Nigeria has now accepted and undertaken to respect and implement the obligations under these treaties. However, the treaties do not have any force of law within the Nigerian territory unless domesticated (s12 Constitution of the Federal Republic of Nigeria, 1999) either by an enforcement and domestication Act or by including its provisions in the Copyright Act, Cap C20, Laws of the Federation of Nigeria, 2004 through an amendment. This piece argues that as we celebrate the ratification of the treaties, there is, however, a great need to pause and ponder on the effect of implementing ‘the standards stipulated in the treaties’ in Nigeria. What impact will the standards in the treaties have on creativity, innovation and access to information for educational purposes in Nigeria? Put broadly, what effect will they have on the knowledge economy and the overall development in Nigeria?
The WCT, WPPT and the Beijing Treaty are meant to promote and protect copyright and performers’ rights in the digital space. The treaties were negotiated in response to the growth of digital technology and its impact on copyright and performers’ rights. The WCT relates to copyright generally, while the WPPT and the Beijing Treaty address rights of performers and producers of sound recordings, and rights in audio-visual performances respectively. The WCT and WPPT are already in force, while the Beijing Treaty is not. The Beijing Treaty will come into force three months after being ratified or acceded to by 30 eligible parties. As at the time of writing, only nineteen countries have ratified or acceded to the Beijing Treaty.
Under these treaties, the main exclusive rights that are relevant in the digital environment are the reproduction rights and the rights of communication to the public, including the rights of making available to the public (Article 8 WCT; Articles 7, 10, 11 and 14 WPPT; Articles 7, 10 and 11 Beijing Treaty,). The Beijing Treaty includes the broadcasting and communication to the public rights as exclusive rights, but allows state parties the liberty to reduce such rights to equitable remuneration rights (Article 11 Beijing Treaty). Performers and producers of phonograms are also entitled, in addition to the exclusive rights, to equitable remuneration rights in respect of direct or indirect commercial broadcasting or communication to the public of phonograms. State parties may choose whether to include these rights as exclusive or mere remuneration rights in their national legislation (Article 15 WPPT).
The treaties further attempt to answer the question of adequate rights protection in the digital sphere by making provisions relating to technological protection measures (TPMs) and rights management information (RMI). RMI help to identify a work and its owner, track usages of the work and assist in the distribution of collected revenues. On the other hand, TPMs aid the prevention of unauthorised uses of works either through access control mechanisms [passwords or encryption] or copy control mechanisms [limiting the number of authorised copies] (Articles 11 and 12 WCT; Articles 18 and 19 WPPT; Articles 15 and 16 Beijing Treaty).
The Marrakesh Treaty came into force in June 2016. It is dedicated to the promotion of ‘user rights’. Essentially, it
“has a clear humanitarian and social development dimension and its main goal is to create a set of mandatory limitations and exceptions for the benefit of the blind, visually impaired and otherwise print disabled (VIPs). It requires Contracting Parties to introduce a standard set of limitations and exceptions to copyright rules in order to permit reproduction, distribution and making available of published works in formats designed to be accessible to VIPs, and to permit exchange of these works across borders by organizations that serve those beneficiaries”.
In a celebratory tone, the Nigerian Copyright Commission (NCC) stated that “[w]ith the ratification of the four treaties, Nigeria is about to witness a new era in its intellectual property protection policy and legislation. The development again underscores the urgent need to enact a new Copyright legislation that will implement the standards stipulated in the treaties.”
Still in the festive garment, stakeholders in the creative industry are being called upon to mount pressure on the National Assembly, through public advocacy, to hasten the passage of the DCB. Similarly, in a commendatory message to the President and the NCC, John Asein – the executive director of the Reproduction Rights Society of Nigeria (REPRONIG) – stated that the real gains of the treaties “can only be realised if their provisions are promptly domesticated and effectively implemented. There is therefore an urgent need to conclude work on the on-going process of amending the Nigerian Copyright Act. Fortunately, the Draft Copyright Bill [DCB], which has received impressive reviews from national and international stakeholder groups and experts, adequately conforms to Nigeria’s obligations under these treaties”. The process for enacting a new Copyright Act in Nigeria had earlier been ignited by the NCC. The DCB was produced and revised in 2015. The DCB already incorporated major provisions of the treaties. Its enactment into law will signal the domestication of the treaties.
The DCB available online contains proposals aimed at domesticating provisions of the treaties. For instance, it seeks to define ‘communication to the public’ to include “live performance or delivery, any mode of visual or acoustic presentation, making available the work or copies thereof to the public, including by digital transmission over computer networks”. Broadcast is defined to mean “sound or television broadcast by wireless telegraphy or wire or both, or by satellite or cable programmes and includes re-broadcast”. Further, a work will be deemed published if copies of it are made available in a manner sufficient to render the work accessible to the public (s85). Also, the DCB seeks to introduce some general and special exceptions and limitations to copyright. Specifically, it proposes special exceptions for blind, visually impaired or otherwise print disabled persons (s22) in line with the Marrakesh Treaty. The DCB also makes provisions aimed at prohibiting the circumvention of technological protection measures adopted by owners of copyright (s44). It also makes provisions relating to actions for circumvention of technological protection measures and right management information (s46). It also proposes the issuance of take-down notices (s47); procedures for effecting a take-down as well as suspension of accounts of repeat infringers (ss48 & 9); limitation of liability of Internet Service Providers (s51); use of information location tools (s52); and blocking of access to infringing content (s54).
As we celebrate the ratification of the treaties, there is, however, a great need to pause and ponder on the effect of implementing ‘the standards stipulated in the treaties’ in Nigeria. What impact will the standards in the treaties have on creativity, innovation and access to information for educational purposes in Nigeria? Put broadly, what effect will they have on the knowledge economy and the overall development in Nigeria? This question is germane considering that Nigeria is a developing nation facing challenges of access to information for educational purposes.
The Marrakesh treaty is very friendly to a developing nation like Nigeria. The only authoritative report on the rate of visual impairment and blindness in Nigeria is based on a collaborative survey conducted from 2005-2007. The report, which has been subject to some academic review, shows that at least 4.25 million adults aged 40 years are visually impaired or blind in Nigeria. The statistics do not include people under the age of 40. However, it is strongly arguable that – in recent times – more persons than the above number are visually impaired or blind in Nigeria, especially given the fact of Nigeria’s increasing population. Nonetheless, the results of the survey are a confirmation of the usefulness of the Marrakesh treaty to the social and economic development of Nigeria.
According to van Wiele (‘Comments on the Marrakesh Treaty: Considering South African copyright law and policy’  2 SAIPLJ 66-74), domestication of the Marrakesh treaty “has an important development dimension since a severe shortage of accessible format books, newspapers, magazines and the likes aggravates the social and economic problems faced by [visually impaired persons] in developing countries”. Thus, if domesticated, the treaty will cater for the interest of the blind and visually impaired Nigerians who have over the years been crying of government neglect in terms of developmental policy initiative. Moreover, the treaty will enhance the right of such persons to education by allowing them access to relevant information. Domestication of the treaty will align with the current legislative efforts at promoting the rights of the disabled – particularly the blind – persons in Nigeria. The Senate of Nigeria recently passed the Discrimination Against Persons with Disability (Prohibition) Bill, 2016. The Bill awaits assent of the Nigerian President for it to become law. Summarised, the Bill seeks to provide social protection to persons with disabilities and provide safeguards against any discrimination that they may suffer from. It also establishes a National Commission that will ensure that their right to education, healthcare and other social and economic rights are attained.
However, the same cannot be said of the WCT, WPPT and the Beijing Treaty. If at all, these treaties should be domesticated with due care and consideration of the local circumstances in Nigeria. Like most international intellectual property (IP) treaties, the treaties are based on protectionist ideology. They are aimed at locking up knowledge in order to promote the economic rights of rights owners. They are examples of strong international IP regimes.
Although research tending to show the contrary exists, a preponderance of literature establishes that strong IP regimes favours the economic interest of developed countries, while disfavouring developing ones. Thus, developed countries push for such regimes at the international level, with promises to developing nations that a globally harmonised strong IP regime “promotes predictability and … foreign direct investment and international trade”. An Open AIR working paper based on a survey of 130-years of international IP treaty negotiations and the involvement of African (developing) countries, concludes that
“[t]he 130-year history of IP treaty adoption across Africa tells a colonial and neo-colonial story of the creation of a globalized IP system. The developed world imposed IP policies that benefited Western rights holders while limiting African participation in negotiating new treaties. As a result, IP policies do not reflect the realities in many African countries, contributing to poor performance on global metrics of innovation”.
A recent publication on innovation, IP and development co-authored by Nobel prize winner Joseph Stiglitz and co-published by the IP Unit seems to align with the above conclusion and identifies some important demerits of strong IP regimes. First, they will ‘entail the transfer of more money in the form of royalty payments from developing to developed countries’. Secondly, even if they may promote innovation within a developing country, they will constitute a barrier to the capacity of local firms to bridge the knowledge and innovation gap existing between the developed and developing nations. According to the authors, apart from the gap in resources, developed countries are distinguished from developing countries in the knowledge and innovation gap.
Thus, from the literature, it appears an open, less protectionist and more flexible IP regime would best suit the developmental needs of a developing country like Nigeria. Indeed, the experiences of countries like India, China, Japan and Korea – as gleaned from the literature – give credence to the advantages of an open and flexible IP regime to developing nations. Moreover, research also shows that some of the developing nations had such IP regimes at their early stages of development. Essentially, open and flexible IP regimes allow some form of imitation to build up local capacity. Moreover, it should be noted that with IP, one size never fits all. Thus, domestic IP laws should be tailored in such a way as to enhance local developmental goals.
Although much of the literature speaks to IP generally, these arguments are relevant to this discourse because copyright falls within the IP landscape. The goal here is not to canvass for a rejection of the WCT, WPPT and the Beijing Treaty. Their ratification and the planned domestication are, in principle, laudable. Nigeria has a booming creative industry. But given that strong IP regimes create unnecessary hurdles to market entry in the creative industry, lawmakers would have to be wary in adopting their provisions hook, line and sinker. Also, it is important for lawmakers to be mindful of the gap existing between Nigeria and other developed countries, especially in the area of access to information for educational purposes. Further, they should be concerned about not creating unnecessary rent in favour of foreign (developed country) rights holders to the detriment of local ones. In particular, the lawmakers should strive to tailor the DCB to sufficiently promote access to educational materials and enhance the growth and success of SMEs relying on digital technology, while ensuring that local creators benefit from their creative efforts. After all, the essence of copyright is about creating a fair balance between the interest of rights owners and those of the public in the promotion of social welfare. To this end, the general and specific exceptions to copyright proposed in part II of the DCB should not be jettisoned. Rather, they should be made more user friendly and possibly be expanded and brought in line with digital realities. For instance, the fair dealing provision proposed in s20 (1) should be made open-ended to resemble the fair use provision being recommended to the South African Parliament by a consortium of international IP scholars.