Broadcast Piracy: Encouraging Signs of Africa’s Rejection

Edamisan Job

Aknockout punch it may not be, but the 8 June judgment of the Port Harcourt Division of the Federal High qualifies as major blow on broadcast signal piracy and other strains of intellectual property theft in Nigeria.

For long, broadcast signal pirates, with no little chutzpah, have run rings around content creators and rights holders. But on 8 June, they had the stuffing knocked out of them when the Federal High Court delivered judgment that will have significant impact on intellectual property rights in the country.

The judgment, in my view, represents a chance to loosen the chokehold of piracy on the content economy, thereby engendering a healthier creative ecosystem as obtainable in progressive societies around the world.

The judgment was in a suit was filed last year by cable television operator, Metro Digital Limited, against MultiChoice Nigeria. Joined as co-respondents were the National Broadcasting Commission (NBC) and Minister of Information. Metro Digital, which was pirating the signal of MultiChoice, in addition to the content of football authorities, LaLiga and UEFA, via a Belorussian satellite company and redistributing same to its subscribers in Nigeria, had aroused the interest of the Economic and Financial Crimes Commission (EFCC), which raided its office along with those of members of the Association of Cable Operators of Nigeria (ACON) involved in rebroadcasting MultiChoice content without authorisation.

With their operations disrupted by raid, which led to seizure of equipment used in the illegal activity, Metro Digital Limited approached the Federal High Court (Port Harcourt) seeking a bouquet of reliefs.

Prior to its litigation, Metro Digital had written to MultiChoice, asking that it be authorised to retail some of its channels and programmes to its subscribers, a request that was rejected. The rejection was based on the fact that the channels and programmes for which Metro Digital sought sub-licensing rights are not owned by MultiChoice and that granting such a request will be in violation of agreements with the owners of those properties.

From the foregoing, it should have been obvious that MultiChoice itself is a sub-licensee. But while the case was still in court, Metro Digital and other ACON members continued to redistribute MultiChoice’s content for which they charged between N3, 000 and N5, 000 monthly.

In court, Metro Digital hung its case on the belief that the 6th National Broadcasting Code issued by the NBC last year entitles it to rebroadcast content on MultiChoice platforms, as it prohibits content exclusivity in the country and empowers the regulator not just to compel broadcasters to share exclusive content with competitors, but also determine prices payable.

But in its ruling the Federal High Court dismissed Metro Digital’s case, stating that the cable television operator had failed to contradict MultiChoice’s claim of lack of ownership rights/sublicensing rights to the content sought. The court refused to grant the reliefs sought by Metro Digital and dismissed the matter in favour of MCN and NBC, with the latter adjudged as lacking in powers to compel sub-licensing.

The court also held that the Minister of Information, whose ministry supervises the NBC, was not a necessary party to the proceedings and struck off the minister as a party to the proceedings.

It was not the first time that Metro Digital had sought to illegally feed off other operators. In 2007, the National Copyright Commission (NCC) raided the office of the cable television operator, which responded with a lawsuit in which it demanded $200,000 as compensation for alleged human right breach. The raid was at the instance of the defunct HiTv, which complained to the commission that its signal to the matches of the English Premier League meant for the Middle East (HiTv held the rights in Nigeria at the time) were illegally down-linked via Showtime smart cards purchased in the Middle East and re-transmitted to subscribers in Port Harcourt, Onitsha and Asaba by Metro Digital.

In 2010, Communication Trends Limited (CTL), a member of ACON, had its licence suspended for pirating HiTv signal. In 2018, the NCC cautioned two Kaduna-based cable television operators, ABG and QTV, that they risked suspension for unlicensed broadcasting. News reports quoted Augustine Amodu, NCC’s Enforcement Director in Kaduna, as saying that the warning was issued after the commission received letters from international broadcasters such as Aljazeera, BeiN and Canal Plus that their content was being redistributed illegally.

“The only people with the exclusive license to broadcast English Premier League, UEFA Champions League, LaLiga among others is MultiChoice Nigeria. So, we are here to issue a very stern warning to you to desist from this illegal act or run the risk of been shut down,” the NCC said in its letter to the cable operators.

Two years ago, TStv, which operated for a short while, claimed to have acquired rights to premium sporting, news and general entertainment content, which it was offering to subscribers at implausible low rates. Just before it rolled out, CNN, FOX Entertainment and BeiN wrote separately to the NCC to deny that they had any content redistribution agreements with TStv, adding that it is ineligible to operate in sub-Saharan Africa.

The recent Court of Appeal judgment is a credit to the judicial and law enforcement arms of the government, as it indicates a readiness to protect the intellectual content landscape and the wider economy. Across Africa, there is growing realization of the danger that intellectual property theft represents to the content creator, rights owners and the wider society. This realization has given rise to the development of policies and passage of legislations against piracy as well as their implementation and enforcement.

By its simplest definition, broadcast content piracy entails the unauthorized broadcast, streaming and sharing of copyright-protected content. The illegal distribution of content, especially on a commercial basis, denies content creators, artists and the whole of the creative landscape revenues from their investments and talents. Without the revenues, creative industry professionals cannot have a viable livelihood let alone bequeath a legacy to coming generations. The same realization is also kept aglow by Africa’s desire to attract foreign investments, which are crucial to the economic well-being of the individual nations.

Speaking directly to this is African Growth and Opportunity Act (AGOA), a United States Trade Act enacted in May 2000 as Public Law 106 of the 200th Congress.
The legislation, which has since been renewed to 2025, significantly enhances market access to the US for qualifying Sub-Saharan African (SSA) countries.

Qualification for AGOA preferences is based on a set of conditions contained in the legislation. In order to qualify and remain eligible for AGOA, each country must be working to improve its rule of law, human rights, and respect for core labor standards. The AGOA eligibility requirements, which provide access to US trade and investment, include the defence of intellectual property rights.
Thus, when intellectual content theft goes on unchecked, content creators/owners are unable to get paid, while investments peter out and the creative ecosystem shuts down.

To avoid this grim possibility, the African creative economy requires a sturdy legal foundation that builds investor confidence. Steps towards this are already being taken through advocacy and importantly, law enforcement and the judiciary. In the island nation of Seychelles, the Supreme Court recently made the first successful application of the country’s copyright law in the case of MultiChoice Africa Holdings B.V/ SuperSport International (Pty) Ltd v Intelvision Limited, which transmitted matches of the 2019 CAF African Cup of Nations without authorisation.

The court held that Intelvision was in breach of the country’s copyright act when it broadcast AFCON matches, for which it had no broadcast rights. The position of the court is especially significant, as it upholds the protection of the rights of content owners and guarantees that they receive just compensation for their investments.

To provide recompense to the injured parties, the court ordered a probe of Intelvision’s finances to ascertain its earnings from the illegal broadcast, with a view to arriving at damages due to MultiChoice Africa and SuperSport.
In Kenya, the country’s copyright organ, Kenya Copyright Board (KECOBO), is leading a cross-stakeholder awareness coalition, Partners Against Piracy (PAP). The anti-piracy coalition seeks to combat the crime through public education on the ruinous effects on livelihoods and the wider society.

A similar initiative is also taking root in Zambia, where it is driven by the National Arts Council (NAC).
In addition to this, there appears to be a new resolve among stakeholders in the content industry to stand up for themselves, as evidenced by the MultiChoice/ SuperSport victory in the Seychelles.

Drivers of Africa’s anti-piracy efforts are likely to have taken inspiration from the recent anti-piracy operation in Italy. Executed by the Guardia di Finanza, an anti-economic crime agency, and coordinated by the Naples Public Prosecutor’s Office, the over one week-long operation resulted in the shutdown of over 600 illegal platforms illegally broadcasting matches of the UEFA Euro 2020 matches, with those running the pirate schemes liable to jail terms of between six months and three years. End users are also liable to hefty administrative fines that could rise to €1,032.

Next up for Africa are stiffer legislations that prescribe heftier sanctions in the shape of jail sentences for pirates and fines for end users.
––Job, a copyright activist, writes from Lagos.