He is a man of many parts. A lawyer, a university teacher and an author. The Nigerian Copyright Commission (NCC) Director-General, John Asein, brings his rich background to bear on his job. But will the war against copyright infringement ever end? In this chat with EVELYN OSAGIE, Asein, who was the Reproduction Rights Society of Nigeria (REPRONIG) Executive Director, speaks on the fight against rights’ infringement.
Has two decades of democracy helped copyright protection and regulation in the country, given your over two decades of experience in the commission?
Copyright protection and regulation have experienced a positive change in the last two decades.
Incidentally, the Copyright Commission was inaugurated in August 1989. So, as Nigeria celebrates two decades of its modern democratic experience this year, it will also be marking three decades of its modern copyright administration. The present Copyright Act, which established the Commission, was promulgated in 1988. Speaking specifically on the developments since 1999, I can say that copyright protection and regulation have grown tremendously. The Commission has moved progressively from a simple administrative agency to a regulatory agency and now an enforcement agency with the powers of the police and additional mandate to prosecute copyright offenses. It has also seen the transition from being under a military regime to civilian rule. If the first 10 years of the Commission under military rule was used to lay the foundations and begin a new culture of respect for copyright, the last 20 years have seen a consolidation and maturity in the copyright system. There have been all manners of legal and regulatory issues, such as those we are experiencing in the area of rights management and enforcement. Some of these issues have helped to enrich the experience, strengthen the copyright ecosystem and engender a more robust and jurisprudence. Others are still with us and I believe they will eventually be resolved.
The last two decades have also witnessed a global shift from analogue to digital platforms with its attendant challenges for copyright enforcement. Fortunately, the copyright system has managed rise up to the occasion in many cases. Although the Act is in dire need of review. There is a general consensus that it is still a relatively good law. The ongoing Copyright reform is taking care of the gaps and credit must be given to the Commission and the courts for making the best use of the Act and adapting its provisions to achieve the much that the country has achieved in the last two decades.
Another immediate gain from the present democratic experience, and we must give credit to the present administration of President Muhammadu Buhari for this, is the ratification in October 2017, of four (4) copyright treaties: the WIPO Copyright Treaty; WIPO Performances and Phonogram Treaty; Beijing Treaty on Audio-visual Performances; and Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled. The ratification of those treaties is not only an affirmation of Nigeria’s commitment to global standards of protection, but it also signals this administration’s resolve to bring about positive change in the copyright system as a veritable tool for growing the creative sector. It is instructive to note that the two WIPO treaties, which are meant to deal with the challenges confronting copyright protection and administration in the Internet age, had been on the table since 1996 when they were concluded. Their ratification is therefore, like a rite of passage for Nigeria to be counted among countries that have formally subscribed to that higher standard of protection and regulation of copyright. Needless to say that Nigeria also set a record; as I do not recall any other country that has deposited four instruments of ratification at WIPO on the same day! Of course, the provisions of the treaties would have to be domesticated and Nigeria is presently in the process of doing that. We are not there yet, but given the challenges and global realities, I would say we have done well in the last two decades.
 How has your over two decades of experience been in the fight against rights infringements and now as D-G?
My over three decades of activities, traversing all aspects of the intellectual property (IP) landscape, has been a very rewarding experience, pursuing what has become an inexplicable passion to add value to IP in Africa. In my professional restiveness, I have found myself as a teacher in several universities from University of Calabar to University of Abuja and to Africa University Mutare, Zimbabwe. I have also made my modest contribution to the development of the literature from the first ever book on Nigerian copyright law Nigerian Copyright Act: With Introduction and Notes (published in 1994) to the first comprehensive treatise on Nigerian copyright law and practice: Nigerian Copyright Law and Practice (first published in 2003 and revised in 2012). I have devoted a greater part of my adult life to the Nigerian copyright system from when I joined the Nigerian Copyright Commission as its first lawyer in 1992. I have, therefore, been fortunate to have been involved in the formulation of most of the policies, programmes and legislative reforms from 1992 to date. I have had the privilege of representing Nigeria on several norm-setting processes, including the negotiation of all the four recently ratified treaties and other emerging IP issues, particularly within the World Intellectual Property Organisation (WIPO). I served as Chairman of the Technical Committee on the Review of the Copyright Act and worked on the present Draft Copyright Bill. I also experienced copyright in action from the private sector when I served briefly as the Executive Director of the Reproduction Rights Society of Nigeria (REPRONIG) from 2017 until my appointment as Director-General of the Nigerian Copyright Commission.
How is the agency being repositioned for effective regulation and development of the creative industry, especially with the advent of the social media?
For us, changing the copyright narrative is really about aligning our strategic goals and programmes with the policy architecture of this administration to ensure that the copyright system runs optimally and delivers maximum benefits for the greater good of all segments of the creative sector. As you are aware, the copyright-based industries generally contribute anything between 5 to 10 per cent of the GDP of countries. It is estimated that the figures for Nigeria should be around 7.5, given out thriving film and music industries. Our goal is to grow the numbers through a more efficient copyright system, contribute to the ease of doing business and secure returns on investment. For me, I want to see a copyright system that promotes the production, distribution, use and protection of works. Of course, we are mindful of the differences in the needs of industries, so know we cannot recommend a one-size-fits-all solution to the industry problems.
In specific terms, and with the help of others agencies of government, we are determined to strengthen human and institutional capacity for better service delivery; ensure an early passage of the Copyright Bill as a step towards reconstructing the policy and legal framework; ensure effective rights management and enforcement, including the strengthening of the collective management system for the benefit of right owners; promote awareness and instil a culture of copyright respect and appreciation of the immeasurable value of the creative industries as major economic block; and more importantly, adopt a more strategic and efficient approach to copyright administration and enforcement.
Fortunately, the government and the organised private sector have in the last few years been paying more attention to the copyright-based industries and I know that several intervention programmes have been introduced to grow the creative sector. For instance, the Central Bank of Nigeria and the Bankers’ Committee recently came up with a plan to help practitioners in the creative sector (including music, movies, fashion and the ICT) access single digit facilities to grow their businesses. This is good news for industry practitioners, especially the small and medium scale ones. The Commission is determined to provide safe corridors for the final products of such laudable policies so as to ensure adequate return on investment.
I am hoping that this time around, the Commission can help by bringing copyright, which I dare say is the lifeblood of creativity, into the equation. That proactive approach is part of changing the copyright narrative. Of course we also have in the pipeline our strategic anti-piracy programmes that I am unable to elaborate upon for obvious reasons. What I can say is that we will deploy all available analogue and digital tools to fight piracy and provide a conducive atmosphere for the creative industries to thrive and attain their full economic potential.
We are also mindful of the copyright dependent industries such as the visual arts that have not received adequate attention in the last few years. Artists need the copyright system to work for them also. Similarly, we shall be activating the provisions of the Act that have been dormant for some time, including the compulsory licensing provisions that should help out educational institutions gain legal access to works that would otherwise be unavailable. This, in my view is a better option than having the pirates step in to exploit the scarcity of books in the market.
Will the fight against piracy ever end, what are the measures NCC is taking to strengthen copyright regulations, ensure adequate reward for copyright owners and users across the country, and prosecute infringements?
Piracy has, indeed, been one of the major challenges confronting the creative industries. As a hydra-headed problem, I believe it requires hydra-headed solution. It must be attacked from all sides in well coordinated private-public stakeholder collaboration. The fight against piracy must start with improving our mindset and the way we do business. Practitioners should be encouraged to anticipate and make adequate provision for possible breaches and abuses. Right owners must be encouraged to invest not only in the creation of works, but more importantly also in the management, protection and if it becomes necessary, the enforcement of their rights.
We are sharing information and working closely with the associations of rights owners and I must say we are beginning to see more fruitful results from these collaborations. Of course, the Commission on its part has in the last decade or so invested a greater percentage of its resources in the enforcement and prosecution of copyright infringements and other abuses.
In furtherance of its proactive enforcement interventions, the Commission has in the last decade conducted increased surveillance and carried out anti-piracy operations in several piracy hotbeds across the country. In our last report we showed how the Commission had in the last decade or so, arrested over 730 suspected pirates; removed about 9.3 million units of assorted pirated copyright works, comprising books, software, DVDs, CDs, MP3 and contrivances from different piracy outlets across Nigeria with estimated market value of 9.6 billion. More recently, the Commission, in collaboration with the Nigeria Customs Service, confiscated 28 shipping containers loaded with pirated books, musical and film works of local and foreign titles at different seaports across the country. Over 99.3 million units of pirated copyright works comprising literary works, musical works, films and contrivances with estimated value of 10.3 billion were destroyed publicly pursuant to court orders. The Commission has continued to monitor the optical disc plants to ensure copyright compliance just as it has kept vigilance on the operations of collective management organisations (CMOs) to protect the interests of the millions of local and foreign right owners that they represent.
On the enforcement side, the Commission has continued to strengthen its prosecution of offenders. It had recorded a good number (about 60) of convictions in the last decade. Many more cases are at different stages of completion. This is remarkable considering the lean resources and the fact that criminal prosecution of copyright offenders in Nigeria only commenced about 20 years ago.
Like every other societal ill, the perpetrators and criminals will fight back so the Commission has been inundated with all manner of actions by those who would want to use the judicial process to scuttle their prosecution and resist the changing narrative. The Commission is aware of these counter moves but will not relent in cutting this monster you’ve talked about to size.
You recently mentioned in your address at the world Book and Copyright Day that the Commission was working with the blind to make books more accessible. You also warned that henceforth you will hold proprietors of schools responsible for the distribution of pirated books in their schools. Could you please elaborate on these?
Nigeria in 2017 deposited four copyright treaties, one of which is the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty” for short). One of the objectives of that treaty is to create a more inclusive culture of access to published works for the blind, visually impaired and print disabled persons. We have already proposed necessary textual changes to domesticate the provisions of that treaty. Our recent engagement with stakeholders in the blind community is to implement a Pilot Project in Nigeria under the aegis of the Accessible Book Consortium, which is a platform hosted by WIPO. We are working in collaboration with the Nigeria Association of the Blind (NAB), the Nigerian Publishers Association (NPA), as well as the Reproduction Rights Society of Nigeria (REPRONIG). One of the objectives of the Project is to offer hands-on training in accessible book publishing and production to book publishers and to NGOs that are involved in the production of braille. This has been executed successfully. A number of students in the South West selected for the under the Pilot Project have also been provided with assistive devices to aide access to reading materials and they have also been trained in the use of the devices. Selected titles will also be produced in braille and accessible formats for the use of blind students in secondary schools across the country. It is our hope that we can follow up with a sustainable plan to promote the production of such materials after the Pilot Project.
On the renewed drive to stop the use of schools as distribution points for pirated books, we have issued warnings to schools proprietors, principals and head of schools and authorities in charge, informing them that henceforth, they will be held responsible for any pirated books distributed to pupils and students through their schools. Such schools will also be sanctioned under the criminal provisions of the Copyright Act. As you may know, Section 20(2) of the Act makes it an office to sell, distribute or be in possession of infringing copies of copyright works especially when the work is not for private use. Our Copyright Inspectors have “all the powers, rights and privileges of a police officer”. The Copyright Inspector also has powers to enter, inspect any building or premises (including schools) that he reasonably suspects is being used for infringing activities. He or she may arrest any person who he reasonably believes to have committed an offence under the Act. The notice is therefore, to forewarn school authorities. Parents and guardians have been advised to report any cases of suspected piracy or distribution of pirated books to any of our offices across the country. Reports may also be made online throughout website or phone.