Weapons of Mass Construction: the Role of Intellectual Property in Nigeria's Film and Music Industries

• Citation: Vol. 29 No. 4
• Publication year: 2015
• topic: Intellectual Property

Weapons of Mass Construction: The Role of Intellectual Property in Nigeria's Film and Music Industries

Ana Santos Rutschman

WEAPONS OF MASS CONSTRUCTION: THE ROLE OF INTELLECTUAL PROPERTY IN NIGERIA'S FILM AND MUSIC INDUSTRIES

Ana Santos Rutschman^*

Abstract

This article analyzes the role of intellectual property (IP) in the recent and extraordinary growth of the film and music industries in Nigeria. This growth, largely attributable to the introduction of digital technologies across sub-Saharan Africa, has also been shaped by an intricate interplay between unbridled piracy and market-induced compliance with IP norms within the same industry. As a signatory of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Nigeria is bound by standards of IP protection that are applicable to both developed and emerging economies. In developing countries, this kind of legal harmonization often translates into a rigid enforcement of IP that poses the risk of stifling industrial production. The film and music industries in Nigeria, however, have thrived by incrementally transitioning from non-proprietary to IP-based regimes. The article traces that evolution, arguing that a combination of initial levels of low IP protection with progressive "formalization into IP" benefits developing industries that rely on digital production and distribution of content.

The first part of this article provides background information on Nigeria's economic profile, with an emphasis on the country's digital infrastructure in connection with production and distribution of music and film. The second part focuses on Nigeria's music industry from the viewpoint of IP enforcement. The third part zooms in on Nollywood, Nigeria's domestic film industry and the second largest film industry in the world as of 2009. It analyzes the role that IP has played in the development of Nollywood, identifying three functions of IP norms and policies throughout the different growth stages of the industry. Finally, this article shows how Nollywood's progressive "formalization into IP" has influenced monetization of digital content in other systems of production and distribution of digital content in Western Africa.

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I. Nigeria at the Dawn of the Digital Age: The Implications of Being a MINT Country.............................................................675

A. Digital Infrastructure and Social Media ................................... 677
B. Digital Infrastructure and the Judiciary Information System .... 679

II. The Nigerian Music Market: Piracy and Intellectual Property Enforcement Strategies.............................................680

A. The Contemporary Musical Landscape..................................... 680
B. The Nigerian Music Market....................................................... 681
C. Music Piracy and Intellectual Property Enforcement Strategies ................................................................................... 685

III. The Rise of Nollywood: A Revised Role for Intellectual Property Norms and Policies.......................................................689

A. The Rise of Nollywood: From Local Origins to International Relevance ................................................................................... 691
B. Nollywood, Part Two: Channeling Hollywood's Model: The Emergence of Intellectual Property........................................... 693
C. Monetizing Digital Content "Made in Africa": iRoko and the Consolidation of the Role of Intellectual Property.................... 697
D. "Weapons of Mass Construction": The Role of Intellectual Property in Fostering Industrial and Cultural Growth ............. 700

1. Capacity-Building Stage: Loose Regulatory and Intellectual Property Structures May Benefit Nascent Creative Industries .............................................................. 701
2. Stage of Expansion and Consolidation: Factoring in Intellectual Property Has the Potential to Enable Large-Scale Monetization at the Top of the Market, While the Bottom Still Relies on Informal Network ............................. 701
3. Stage of Sophistication: Higher Intellectual Property Protection Needed ............................................................... 702

Conclusion..................................................................................................703

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I. Nigeria at the Dawn of the Digital Age: The Implications of Being a Mint Country

Nigeria, we are increasingly told, is a MINT country.¹ Coined by Jim O'Neill, who years earlier had created the acronym BRIC,² the term applies to Mexico, Indonesia, Nigeria, and Turkey. These developing countries are densely populated and strategically located, with promising recent and prospective economic growth patterns. The most optimistic studies estimate that by 2050, the GDP of each of these four countries will be comparable to the projected numbers for the United Kingdom or Germany, and superior to Canada or Italy's GDP.³

Categorizations like BRIC and MINT, however, attract a fair amount of criticism, with questions surrounding the criteria used to aggregate such disparate economies, especially in the case of MINT countries.⁴ In the case of Nigeria, undeniably the second largest economy in Africa by general

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econometric standards, a close look at other studies is necessary to acquire a full picture of the economic and social dynamics of the country. The 2013 Global Innovation Index ranks Nigeria 120 out of 142 countries,⁵ between Malawi and Mozambique. According to the same index, Nigeria placed 101 for knowledge creation, 116 for knowledge diffusion, and 106 for creative goods and services.⁶ Nigeria also ranked 153 out of 187 countries in the 2013 Human Development Index Report, which places it in the "low human development" group, one place above Senegal, in a group that ranges from Republic of the Congo (142) to Niger (187).⁷ Ni geria is therefore in a dual position, an economic powerhouse in the making with consistently low levels of human and social development. This translates into a split in wealth allocation that leads to a very different economic climate than in any other sub-saharan country.⁸ A recent Forbes article entitled The 2014 Millionaire Race: Goodbye BRICs, Hello MINTs,⁹ which built on a study by spear's Wealth Management Survey and the WealthInsight Intelligence Center, estimated that "MINT countries as a whole will perform better [creating more millionaires] than both the BRICs and the G8" together in 2014. Among the MINTs, Nigeria is expected to register a ten percent increase, a number that is only surpassed by Indonesia's twenty-two percent estimate.¹⁰ The richest African person is Nigerian, as well as the richest African woman.¹¹ The problem in Nigeria is that poverty has also escalated in recent years almost as quickly as the

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formation of the country's upper economic class.¹² Nearly 100 million Nigerians, almost sixty-one percent of the population, live on less than USD 1 a day.¹³ This extreme polarization of wealth makes Nigeria noticeably different from smaller African economies. An additional distinctive feature, and a major concern, is that Nigeria displays much higher corruption levels, a problem that impacts the investment environment and foreign aid, among other areas. According to the Perceived Corruption Index, Nigeria ranks 136 out of 175 countries, with a score of 27 out of 100.¹⁴ As a comparison, consider that Ghana and Senegal are in 61st and 69th places (with 46 and 41 points out of 100, respectively), and South Africa ranks 72nd (with 42 points).¹⁵ Political instability has also been a longtime problem in Nigeria,¹⁶ with acute manifestations in recent years.¹⁷ Nigeria is therefore a country that outperforms virtually every other African country in major economic categories, but that remains afflicted by the same social, infrastructural and—paradoxically—economic problems that affect sub-Saharan Africa.

A. Digital Infrastructure and Social Media

Internet was introduced in Nigeria in the early 1990s, but it only became relatively widespread after military rule ended in 1999 and cybercafes began appearing in urban areas.¹⁸ In 2009, the Nigerian multinational telecommunications company Globacom financed the construction of 9200 kilometers of fiber optic cable from Europe to Lagos.¹⁹ Before the fiber optic expansion, only 7.2% of Nigerians had Internet access. By December 2012,

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that figure had climbed to 38%.²⁰ The number of Internet service providers rose from 18 in 2000 to 136 in 2011. Since 2004, it has been possible to access the Internet via mobile devices, and today there are four Nigerian providers of GSM²¹ mobile phone service—MTN, Globacom, Airtel, and Etisalat.²² As of May 2013, there were over 114 million mobile subscribers, which is a ratio of 69 phones per 100 inhabitants.²³ Computers remain the most popular form of accessing the Internet, with laptops being employed by 62% of Internet users; 49% connect to the Internet via mobile phone²⁴ and digital tablets are slowly on the rise, registering 24% as of August 2013.²⁵

Use of social media has also grown exponentially in the past three years.²⁶ YouTube has been available in Nigeria since 2005.²⁷ The latest available data show that YouTube viewership in the country increased by 125% in 2012, while uploads of content from Nigeria registered growth of 50%.²⁸ In 2013, the most watched videos were uploads of Nigerian music, followed by Nollywood content.²⁹ Non-African content is not represented in the overall top ten most watched videos; neither is it found in the music-specific category.³⁰ YouTube is the fifth most popular website in the country, after social networking platform Facebook, Google, Yahoo and Google Nigeria.³¹

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The YouTube Partner Program, which allows for monetization of content uploaded to YouTube, is also available in Nigeria.³² After the...