The Federal High Court Lagos has declared the amended 6th edition of the National Broadcasting Code as illegal and the National Broadcasting Corporation (NBC) as lacking in powers to prohibit exclusivity on the right for privately acquired intellectual property in programme contents of a right holder.
Recall that the minister of information, Lai Mohammed had launched the amended the code on August 4, 2020, seeking to regulate content exclusivity, enforce content sharing and empower the NBC to determine prices at which content is sold to sub-licensees by rights holders.
However, the Executive Director of Dux FM 94.7, publisher of Metro News and president of Society of Digital Newspaper Owners of Nigeria (SDNON), Otunba Femi Davies dragged the commission to the court in suit No. FHC/L/CS/1152.2020.
Davies contended, among other things that the Commission lacks the requisite vires to prohibit exclusivity on privately acquired intellectual property right in program content of a right-holder, especially in consideration of the salient provisions of the constitution and the Copyright Act.
The NBC submitted that the amendment to the Code was done to protect local operators, promote creativity and maximise local content via the anti-trust provisions contained in the amendment, adding that it was aimed at stimulating growth in the broadcasting industry by attracting foreign investment.
In his argument, Davies stated that if the amendment was allowed, it would greatly violate his right to a fair hearing and asked the court to uphold his six reliefs as set out in his originating summons.
He sought the following reliefs:
“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 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.”
In his ruling on Wednesday, May 25, 2022, the presiding Justice Ambrose Lewis-Allagoa held that the amended 6th edition of the National Broadcasting Code was illegal and that the acquisition of exclusive rights to broadcast a particular programme is an investment for returns and no one should be forced to surrender the 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. I have determined the questions in the originating summon in favour of the plaintiff. For reasons given, consequently, all the reliefs sought by the plaintiff are granted as prayed. That is the judgment of the court,” Justice Lewis-Allagoa rulled.
The landmark judgement is a victory to the media industry singlehandedly fought by Davies.
