The implementation of the Beijing Audiovisual Performances Treaty in Nigeria

The Beijing Treaty on Audiovisual Performances is a multilateral treaty which regulates copyright related rights for audiovisual performances and expands the performers' rights. It was adopted on 26 June 2012 by the Diplomatic Conference on the Protection of Audiovisual Performances of the World Intellectual Property Organization, in which 156 WIPO member states, six intergovernmental, and six non-governmental organizations participated. Forty-eight countries signed the treaty on 26 June, followed by 19 other countries in 2012 and 2013. The treaty was signed by 74 states and will enter into force on 28 April 2020 follow the receipt of the 30th ratification.

The treaty has been praised by artists' and performers rights advocates around the world as well as some activist nonprofits such as Knowledge Ecology International, but has also been criticized by some digital rights and free culture activists such as the Electronic Frontier Foundation (EFF) as an infringement on free speech, and aiding censorship schemes.

On October 4th, 2017, Nigeria ratified the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT) of 1996. The country also ratified the WIPO Beijing Treaty for Protection of Audiovisual Performances of 2012 (BTAP); and the Marrakesh Treaty for the Blind and Visually Impaired Persons of 2013 (Marrakesh treaty). Nigeria now joins other countries that have ratified these treaties. Thus it has undertaken to respect and implement its obligations under the treaties. However, by s. 12 of the 1999 Constitution (as amended), the treaties are not in force in Nigeria unless and until domesticated. The Constitution extends the powers of the National Assembly outside the Exclusive Legislative List for the purpose of domestication of treaties. In this case, such a bill shall not be presented to the President for assent and has to be ratified by at least a majority of all the Houses of Assembly in Nigeria before it is enacted. This is one instance where the assent of the President is not required before a bill is enacted into law in Nigeria.

The consequence of failing to get ratification of a treaty by a majority of the various State Houses of Assembly in Nigeria where a matter to be legislated upon falls outside the purview of the Exclusive Legislative List, is that such Law enacted by the National Assembly will be made to govern only the Federal Capital Territory, Abuja. Statuses of Treaties Domesticated in Nigeria have the same force of law as our Nigerian statutes. So, their provisions are interpreted in the same way our statutes enacted in Nigeria are interpreted. Nigeria has given herself actively to participating and signing of international treaties as it applies to the nation, but lesser attention is given to domestication of such treaties signed by the country, even after many years of such international agreements.

It is not enough to domesticate international treaties ordinarily, but there is the need to sensitize legal practitioners to the laws, as well as to provide the people with informed knowledge of what the laws constitute. Every level of government – from a local to state and federal government – is responsible for seeking enforcement of those obligations for the progress of the nation. Civil society should also join such advocacy, in their circles of influence, to push not only for domestication of international treaties but the sensitization of the masses to know what is in it for them. According to the Nigerian Copyright Commission (NCC), with the ratification of the treaties,“Nigeria is about to witness a new era in its intellectual property (IP) protection policy and legislation. The development again underscores the urgent need to enact a new Copyright legislation that will implement the standards stipulated in the treaties”.

But as we celebrate the ratification of the treaties, there is a great need to ponder on the effect of their domestication in Nigeria: what impact will the standards in the treaties have on creativity, innovation and access to information for educational purposes in Nigeria?

Put broadly, what effect will they have on the knowledge economy and the overall development in Nigeria? This question is important considering that Nigeria is a developing nation facing challenges of access to information for educational purposes, as shown by the 2014 report of the IOM on needs assessment in the Nigerian education sector. An open and more flexible IP regime would best suit the developmental needs of a developing country like Nigeria. Nigeria has a booming creative industry. But given that strong IP regimes create unnecessary hurdles to market entry in the creative industry, lawmakers would have to be wary in adopting their provisions unquestionably, however their ratification and the planned domestication may be regarded, in principle, as laudable.

It has been rightly stated that performers’ rights provide a very similar form of protection to the rights granted to authors by copyright. Nevertheless, there are a few notable differences between the rights enjoyed by authors and those granted to performers. First, the duration of these rights differ, with copyright typically lasting longer than performers’ rights. Second, performers’ rights only protect the recording of a performance; they do not protect the actual performance itself in the way that copyright protects against copying the actual work. For example, it is perfectly lawful to copy or imitate another performing artist’s style, demeanor or mannerisms: these aspects of their performance are not protected. Lastly, and perhaps most surprisingly, performers do not have right to object to false attribution, which is an important moral right enjoyed by authors.

Finally, it is worth noting that the same artist may enjoy both copyright and performers’ rights in his or her contribution to a creative work. For example, consider an actor who directs and/or produces his or her own film, or a singer-songwriter who writes, composes and records her own music. As a songwriter, the musician will enjoy copyright in the songs that he/she writes. And, when he/she records her song, she will enjoy performers’ rights in the recorded performance. It is essential to human creativity to give creator’s incentives in the form of recognition and fair economic rewards. As a result of this recognition and fair economic reward, the enjoyment of culture, knowledge and entertainment is enhanced. Performers have rights almost equivalent to those of authors and copyright owners conferred on them by the Act.

It is important for lawmakers to be mindful of the gap existing between Nigeria and other developed countries, especially in the area of access to information for educational purposes. This gap may be filled if unnecessary barriers to access to information in the digital environment are removed. In addition, lawmakers should be concerned about not creating unnecessary rent in favor of developed countries’rights holders to the detriment of Nigerians. They should strive to tailor this Beijing Treaty on audiovisual Performances to promote access to educational materials, while ensuring that local creators benefit from their creative efforts, after all the essence of copyright is about creating a fair balance between the interest of rights owners and those of the public in the promotion of social welfare.