Copyrights Protection In A Digitised Broadcasting Industry

COPYRIGHTS PROTECTION IN A DIGITISED BROADCASTING INDUSTRY As Nigeria sets to join the rest of the world in the digitisation of its broadcast industry, the broadcast industry in Nigeria will undergo a radical revolution because of the transition from analogue to digitisation; a technological innovation that will change the scope of radio and television broadcasting in the country. Nigeria had set June 17, 2012 as the switch-over date from the current mode of broadcasting to the ultramodern digital terrestrial broadcasting. The date is three years before the June 17, 2015 deadline for the entire world set by the International Telecommunications Union, ITU, after its Congress in Geneva, Switzerland, in 2006. Nigeria officially started the digitisation of its broadcast industry in December 2007 following President Umaru Musa Yar’Adua’s approval. Digitisation has many advantages over analogue broadcasting, especially in terms of clarity and quality of signals and spectrum efficiency. Digital television signals in particular are clearer and stronger in their audio and video output. Since digital technology has opened a vista of possibilities for broadcasting, a huge spectrum will be available for radio and television broadcast in the country. As a result, more frequencies or wavelengths will be available for television stations in the country. It will also afford the industry opportunities for interactive broadcasting as the television sets would now do much more than receive broadcast signals. Television sets, under digital technology, would perform like computers and telephone handsets, provide access to internets and store data apart from the main function of receiving audio and visual signals. Digital Television (DTV) service represents the most significant development in television technology since the advent of color television in the 1950s. Three major components of DTV service must be present for consumers to enjoy a fully realized “high definition” television viewing experience. First, digital programming must be available. Digital programming is content that is assembled with digital cameras and other digital production equipment. Second, digital programming must be delivered to the consumer via a digital signal. Third, consumers must have digital television equipment capable of receiving the digital signal and displaying digital programming for viewing. Nigeria has set measures in motion for the realization of the project, the Federal Government set up a Presidential Advisory Committee on Transition from Analogue to Digital Broadcasting in Nigeria. (PAC), which was inaugurated on 13th October, 2008 by the then Hon Minister of Information and Communications, Mr John Ogar Odey, with Terms of Reference which include recommending a policy on digital terrestrial broadcast transition using global best practices, recommending an appropriate regulatory framework and recommending a National Broadcasting Model. The PAC has since submitted its report to Government for acceptance and the subsequent production of a White Paper, and the proposal of the appropriate bills to the National Assembly.

Before this bill is passed, however, I will recommend that we take a closer look at the copyrights issues that are likely to ensue and give profound thought to developing a protocol for transmitting and receiving digital television in a way that accommodates competing interests. Digital content, like other media, can be relatively easily duplicated and distributed, especially with the aid of the Internet. Unlike other types of content, duplication of digital information does not degrade the original; a digital program may be copied almost infinitely with no effect on the quality of the medium. It is due to the ease and inexhaustible potential of copying digital media, coupled with the proliferation of peer-to-peer services that content providers have greeted this new technology with some trepidation because the protection of their copyrights is further jeopardised. The digital platform enables a significant improvement in the quality, quantity and accessibility of content. New mechanisms are required to compensate content developers and distributors as it is easier to replicate perfect copies. This calls for a need to update the existing legal apparatus for the broadcasting industry. Simulcast of a copyright protected material results in a right to additional copyright payments even though few or no additional viewers are involved. Such demands may be perceived as a disincentive to provide or extend digital services. Developments in digital broadcasting can be constrained by right holders, given the specificity and territorial nature of copyright, taking into consideration that digital broadcasting, unlike the analogue, represents a system with many participants in the chain leading from programme production to broadcasting; content provider, multiplex provider, transmission provider, broadcast provider. The Nigerian Broadcasting Corporation and the Nigerian Copyrights Commission are saddled with the task of guaranteeing and ensuring the liberty and protection of the broadcasting industry with due respect to the law and protecting the creative industry respectively, in this digital dispensation, they should be empowered with the legislation that is able to nip this imminent challenge in the bud. Since we are still at the conception phase of digital broadcasting we can adopt a model that has worked in other digitalized nations regarding the protection of the creative industry. Because of the technological advancement of the United States of America, digital television(DTV) is on a fast track. At the same time, development of digital television has necessitated balancing competing interests – those of content holders, and those of the consumer and technological industries. Reconciling these interests has led to the development of a “broadcast flag” to combat unauthorized redistribution of content broadcast through digital television signals. The move to protect digital content was given urgency by the Federal Communications Commission(FCC). The “broadcast flag” is a combination of technical specifications and federal regulations designed to combat unauthorized redistribution of content broadcast through digital television (DTV) signals. Content providers, fearing widespread piracy that would endanger aftermarket sales (such as cable re-broadcast, and DVD sales), urged the FCC

to provide for a means to protect their assets. The FCC published a Report and Order in the matter of digital broadcast content protection, which required all digital devices capable of receiving digital broadcast over-the-air, and sold after July 1, 2005, to incorporate a standard content-protection technology that would recognize the broadcast flag, and limit redistribution when the flag is recognized. The FCC’s regulations apply the flag mark to all devices and receivers that are capable of receiving digital content. Such devices include, but are not limited to: televisions, computers, digital video-recorders, and DVD players. The broadcast flag itself is optional for broadcasters, allowing them to determine how much copy-protection they wish to impose on their digital broadcast content. Like the United States of America, the ‘broadcast flag’ should be adopted by Nigeria, but, unlike them, it should be made compulsory for broadcasters only, doing otherwise would be ridiculously impracticable here in Nigeria. Broadcasting organizations have a vital role to play in copyright, since they serve as carriers of copyright works, apart from having their own copyright. It is therefore part of their responsibility to comply with copyright law and regulations governing their operations. If the broadcast flag is adopted by these gatekeepers of copyrights, it will curb piracy to a large extent before Nigeria becomes ready technologically to adopt the flag for individual devices and receivers capable of receiving digital content. No doubt there will be issues to contend with which will include the protection of “fair use” or practice under existing copyright law. In addition, some consumer electronics and information technology groups contend that the licensing terms for approving new compliant devices are limiting, and may potentially stifle innovation. Nevertheless, enforcement by regulators will be easier and cheaper when the broadcasters are held accountable for copyrights infringement originating from their frequencies; this will help protect the soon-to-be-proliferated digital content space. My recommendation on this matter made a home-run through the words of a friend recently during a discussion about the imminent challenge of content regulation on the internet; ‘Technological poisons come with technological antidotes.’

Ayo Ayeni is a partner with Law & Allied Resourcery, his area of specialization is entertainment and intellectual property law. With Law & Allied Resourcery, he aims to bring global dynamism to legal practice in Nigeria. He has a passion for writing and golfing.