Court Rules NBC Lacks Power to Prohibit Exclusivity on Privately Acquired Intellectual Property Rights in Programme Contents

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Balarabe Shehu Ilelah,DG, NBC

The Lagos Division of the Federal High Court has ruled that the National Broadcasting Commission (NBC) lacks the power to prohibit exclusivity on privately acquired intellectual property rights in programme contents and that it acted beyond its powers by seeking to regulate the practice of advertising in Nigeria.

Justice Ambrose Lewis-Allagoa, the presiding judge, in his ruling on May 25, 2022, held that the amendment of the broadcasting code is ultra vires, incompetent, null and void. The court set aside the proposed amendment to the 6th Edition of the NBC Code for being ultra vires, incompetent null and void and perpetually restrained the NBC from implementing the code.

The judge made the ruling in suit No. FHC/L/CS/1152.2020 instituted by Mr. Femi Davies against the NBC.

The court also declared that the NBC does not have the power to prohibit exclusivity and compel sub-licensing of privately acquired rights to television content as such is against the constitution and the copyright act.

Femi argued, among others, that if allowed, the amendment to the Broadcasting Code would greatly violate his right to a fair hearing. He therefore prayed the court to uphold his six prayers as set out in his originating summons.

The reliefs he sought in his originating summons include:

  • A declaration that the NBC lacks the requi­site vires to prohibit exclusivity on privately acquired intellectual property right in program content of a right-holder viz-a-viz the salient provisions of the constitution and the Copyright Act.
  • A declaration that the commission acted ultra-vires in so far as it sought to regulate the practice of advertising in Nigeria contrary to the provisions of the extant Advertising Practitioners (Registration, etc) Act, 2004.
  • A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant rights acquired under existing licence under the proposed amendment to the 6th Edition of the NBC Code.
  • A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant rights acquired through a partnership and /or joint venture with an investor under the proposed Amendment to NBC Code.
  • An order setting aside the amendment of the NBC Code and an order of perpetual injunction restraining the NBC from implementing the Amendment to the NBC Code.

Justice Lewis-Allagoa granted all Femi’s reliefs in his judgment, where he held that: “I agree with the submission that acquisition of exclusive rights to Broadcast a particular programme is an investment for returns and by virtue of the above-stated provisions, no one should be forced to surrender same when it is lawfully acquired.”

“I am in agreement with the plaintiff counsel that the said proposed amendment is a violation of the principle of fair hearing and natural justice. The proposed amendment purports that the defendant NBC shall without any fact-finding or recourse to the other party place the advertising agency on its black list, solely based on the complaint of a media house to the defendant and the defendant acting has the authority to itself shall pass its verdict without hearing the other parties.”

The judge therefore determined the questions in the originating summon in favour of Femi granted all the reliefs he sought.

On August 4, 2020, Alhaji Lai Mohammed, the Minister of Information and Culture, had launched the amended 6th edition of the code which seeks, among others, to regulate content exclusivity, enforce content sharing and empower the National Broadcasting Commission (NBC) to determine prices at which content is sold to sub-licensees by rights holders.

Not happy with the certain sections of the code, Femi sued the NBC.