Intellectual property

Legal Framework of Entertainment Law in Nigeria

There are no fixed legal rules on the subject matter of Entertainment Laws in Nigeria; apparently, the laws governing intellectual property in Nigeria generally applies and form the legal framework of the entertainment industry since all activities in the industry are intellectual property related. These laws are as follows:

Companies and Allied Matters Act Cap C20 LFN 2004  

Companies Income Tax Act Cap C21 LFN 2004  

Constitution of the Federal Republic of Nigeria, 1999  

Patents and Design Act Cap P2 LFN 2004  

Personal Income Tax Act Cap P8 LFN 2004  

The Copy Rights Act Cap C28 LFN 2004  

The Trade Marks Act Cap T13 LFN 2004  

The Companies And Allied Matters Act established the Corporate Affairs Commission, which is the regulatory body saddled with the responsibility of company incorporation, incorporated trustees and registration of business names and other responsibility to give effect to the provision of the Act. The business activities of the entertainment industry are mostly governed by this Law.

Artist in the entertainment industry are usually signed under a record label, production,  promotion or management agency and these agencies are usually companies incorporated and clothed with legal personality therefore, they are bound by the provisions of the Companies And Allied Matters Act ranging from capacity to form a company, filing of  returns, meetings and other required compliance.  

The Companies Income Tax Act governs the administration of company income tax applies to every company registered with the Corporate Affairs Commission. The Act makes provision for the current tax rate payable by  a company in Nigeria which is 30% on profit accruing in, derived from, brought into or received in Nigeria. Companies in the entertainment industry such are record labels, film production  e.t.c are incorporated companies. Therefore they are eligible to pay companies income tax and non-payment of same attracts a penalty.  

The Constitution is the grundnorm in Nigeria, and it is of general application in the country. Any other law that is inconsistent with its provisions shall be null and void. The provisions of the constitution must be taken into cognizance in going about the activities of the entertainment industry as the constitution is supreme.  

There are cases where players in the entertainment industry are being intimidated and their artistic work, wrongfully or maliciously banned from being aired. However, the CFRN diligently provides for and protects the fundamental human rights of every citizen of Nigeria and beyond. Thus, an aggrieved party can bring an action in court for enforcement of his/her fundamental human rights.  

The Patent and Design Act makes comprehensive provisions for the registration and regulation of patents and Designs. The Act further provides that an invention must be new, it must result from an inventive activity or constitute an improvement on a potential invention. A patent in Nigeria is valid for twenty (20) years from the date the patent application was filed. Where the prescribed annual fee with regards to the patent is not paid within the stipulated time and the fee remains unpaid after the six month grace period given by the commission, the patent shall lapse.  

The Personal Income Tax Act governs the administration of personal income tax. It imposes income tax on individuals, communities, families, executors and trustees and provides for the assessment, collection and administration of tax. Every player in the entertainment industry whether an artist, an  author, an inventor of a work is eligible to pay his or her personal income tax and failure to do so attracts a penalty.  

Role of Legal Practitioners in the Entertainment Industry  

There are specific functions In the industry that require the expertise of a legal practitioner, they are:  

Contractual advice to clients, most clients enter into contracts without understanding the depth of it. Hence the need for a lawyer to advice/ guide you on the legal consequences.  

Drafting and negotiating development and production contracts, such as writer agreements, talent agreements, and recording agreements.  

Facilitating and negotiating distribution deals for an entertainment project.  

Working on financing agreements for sponsorship, bank loans, co-production investments, grants, and other types of investments.  

Reviewing and commenting on pitches and budgets for television series, films, mobile apps or other entertainment projects.  

Preparing form agreements for clients, such as appearance releases, location releases, and license agreements.  

Reviewing contracts and other legal documents to analyse right issues or other business or legal questions.  

Resolving contract disputes through alternative dispute resolution ( Arbitration, conciliation or mediation).  

Ensure the client complies with the regulatory agencies in the field they operate.  

Institute an action in court for copyright infringement, trademark infringement, breach of contract and other related matters.  

Attend meetings on behalf of the client where necessary.  

Assist the client with real estate deals, for instance, carrying out due diligence on a proposed property to ensure the property is free from encumbrances.  

Menaces  in  the Nigerian Entertainment Industry  

The entertainment industry has undoubtedly contributed to the development of the country’s economy in recent times. However, it is also necessary to state the challenges that abound in the sector.  

The most prevalent issue in the entertainment industry in Nigeria is the issue of copyright infringement also known as plagiarism, piracy, free-booting, buccaneering and so on, which has become a subject matter for concern that requires immediate attention. Piracy or plagiarism is the unauthorized use or reproduction of a  work belonging to another person, usually associated with intellectual property. Although laws and regulatory agencies have been put in place to protect intellectual property, piracy is on the increase.

This continued practice has occasioned great financial constraints to the industry and the Nation at large. The creator of a work makes little or no money compared to the amount invested in the project whereas some person in the popular Alaba International Market makes good money from selling thousand(s) of pirated copies, the situation is appalling. Hence the popular phrase “Monkey dey work, Baboons dey chop” is well played out in this instance.   

A lot of owners of intellectual property fail to register their works which attracts grave consequences. For example, Section 3 of the Trademarks Act provides for the effect of the non-registration of a trademark. It presupposes that an unregistered trademark owner cannot institute a proceeding to prevent or recover damages on infringement save for passing off.  

There also appears to be issues arising from contracts signed by parties in the industry. Most often than not this happens because the actors and actresses sign these contracts at a point where they are hungry for fame and have little or no cash, which makes them vulnerable to the managers who seem to hold their future. The agreements are usually drafted to exploit these upcoming players in the entertainment industry.  

Furthermore, there is this notion that hiring a lawyer at the early stage of their pursuit is too expensive and unnecessary, however, they fail to realize that the consequence of entering into contracts they do not completely understand outweighs the cost of hiring a lawyer to scrutinize and even seek to expunge parts of the agreement that is not favourable on their part because once the contract is signed, parties are bound which could transcend to indirect slavery for the number of years the contract subsists.  

Lack of access to financing of the entertainment industry has been a major drawback for the industry. This necessitated the National Film Corporation (NFC) the Nigerian Copy Right Commission (NCC) and the Nigerian Broadcast Commission (NBC) to jointly endorse the establishment of the National Film Development to tackle this issue of lack of financing for film production activities in Nigeria.  

The Inadequacies and lack of enforcement of these laws governing intellectual property and entertainment law in Nigeria also affect the activities of the industry. This is one of the reasons piracy is still at its peak in the country.  

Conclusion

The entertainment industry is emerging and still in its formation stage in Nigeria. The need to adhere to and enforce the laws governing this industry cannot be sidelined considering the remunerative and vibrant possibilities it poses to this generation and future  generations. The creation of the entertainment and creative services department out of the department of culture in 2017 is a welcome development that the fate  and interest of the government in the entertainment industry.  

We recommend that awareness campaigns should be held frequently to promote and create awareness on the importance of intellectual property, players in the entertainment industry need to accept the fact that the role of a legal practitioner in the entertainment industry is crucial at every stage( from the pre-contract stage to completion and even post-completion stage),

More effective stringent enforcement procedures should be put in place to curb the menace of piracy and counterfeiting in the industry.  It is safe to say that entertainment law has not attained a great height in Nigeria, therefore it is pertinent to get legal advice every step of the way in dealing with players in the entertainment world, to avoid deprivation and infringement of legal and intellectual property rights in the industry.

Furthermore, Legislations more connected to entertainment should be established to regulate the activities of  the entertainment industry in Nigeria and a distinct court to entertain matters from the entertainment industry (like the National industrial court for labor related matters) should be established.

About the Author

Justina Kaka Okong is a young aspirant to the bar. She obtained her LLB from the prestigious University of Calabar and completed her Law School in Lagos Campus of the Nigerian Law School. She has and ardent interest in Entertainment Law and is already making a career from its practice. At her spare time, she surfs the net to be abreast with the recent happening around the globe. She sings and cook like a pro.