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OYELOLA, Abayomi O.: Nollywood and Copyright Administration in Nigeria: Implications for National Development

Nollywood and Copyright Administration in Nigeria: Implications for National Development

Abayomi O. OYELOLA, mni

Director, Administration & Human Resources

National Institute for Cultural Orientation (NICO)

Abuja-FCT, Nigeria

Email:

GSM: +234-803-333-4289

Abstract

Nollywood, which is the popular name for the Nigeria movie industry, has phenomenally grown like any other profitable manufacturing concern in Nigeria. The explosion in that aspect of creative industry has created its own economic and management challenges for which solutions had to be sought and applied. While Nollywood is encapsulated in the interplay of some rules and regulations, as well as laws to protect productions and indeed distribution for cultural, political and social purposes, the utility and economics of such creation, is subject of a specific law. Hence, the enactment and application of the Nigerian Copyright law since its inception, is to protect the abuse and misapplication of the end product of the creative works of artists, which include films and home videos produced in the Nollywood industry. How the application of the Copyright Law and administration of it by the Nigerian Copyright Commission (NCC) on the products of Nollywood has enhanced economic development, is the subject of this presentation. The presentation will consider some of the provisions of the law that are germane to the protection of the creativity of the Nollywood artists and efforts made by the NCC in its administration under the law, to safeguard the economic interests of both the artists and by implication, enhance economic development of Nigeria.

KEY WORDS: Nollywood, Copyright, National Development.

Introduction

The phenomenon called Nollywood is a product of the creative ideas and actions of some gifted individuals who converted their intelligence and talent into producing entertainment materials for the social, political and economic benefits of the Nigerian and international viewers. Creativity is thus a fundamental human resource with endless potentials. It is generally accepted that man’s ingenuity as manifested in his creative potential is unique and vital to the development of any society in such a way that the outcome of this effort needs to be protected and the creator encouraged.

Nollywood has developed over time to become an industry, which provides products and services with an attempt to satisfy societal needs in the areas of education, entertainment, and commerce. This is why it is necessary for Nigeria to adopt new economic development model that prioritize protection of the creative assets of Nigerians particularly the film industry. It is the only way that Nollywood can be integrated into the National development agenda.

Therefore, Nigeria must of essence seek to protect the creativity of the Nollywood stakeholders, not only to safeguard the interests of creators, but also because it is increasingly becoming clear that such protection has huge potentials for the economy and the society at large. Essentially, the protection of creative assets spurs economic and national development which will not only expand existing job opportunities, but create new industries.

The rapid worldwide proliferation of digital technologies, which enable users and viewers to seamlessly access, transfer, utilize and distribute information and data, has facilitated a global boom in creative outputs engendering new business models as well as an explosive growth of traditional and newly-cultivated creative industries, including film and music. It is this same development that has made it easy for piracy in the industry, which has not only become a negative scourge to national development and economic sabotage, but has deprived the creative artists the benefits of their intellectual labour and work.

Nigeria has clearly become a beneficiary as well as an exceptionally productive participant of the new global market for creativity and innovation based goods as can be seen from the huge stride made by Nollywood. The preeminent example of Nigeria's success is undoubtedly its film industry (Nollywood), which experienced rapid growth throughout the 1990s and 2000s fuelled by the introduction of affordable digital filming/editing technologies. As of 2012, Nollywood was adjudged by a significant margin, the largest film industry in Africa and the second largest film industry on the planet, churning out over 200 low-budget films for the home video market every month at an estimated annual revenue stream of $250-600 million. Nollywood exploded into a lucrative industry that forced foreign media off the shelves, an industry now marketed all over Africa and the rest of the world.

Nollywood as a Source of Development

Okome, cited in Olayiwola, averred that the Nigerian film Industry now known as Nollywood has gained popularity with that name but the first film in Nigeria came through the Balboa and Company, a Spanish firm, in 1903 and toured West African countries. It was a silent film that predated The Jazz Singers, the first of the talking pictures. The success of this exhibition encouraged other merchants, notably Stanley D. Jones and Albuerio based in Lagos. At this period, cinema activities were limited to Lagos before it spread to other parts of the then Western Nigeria; Ibadan in 1921 and Ijebu ode in 1929 (Olayiwola 84).

The name, Nollywood, has an uncertain origin but was derived from acronyms such as Hollywood and Bollywood. Haynes highlights that it apparently appeared for the first time in print in an article by Matt Steinglass in New York Times in 2002 (Haynes page?). Nollywood is the name for Nigerian film industry, but the Nigerian Movie Productions started over fifty years ago with the likes of Latola Films in 1962 and Calpenny Nigeria Ltd anchoring The Escapade (Wikipedia). Historically, Latola Films was one of the first and earlier film production companies in Nigeria. It started movie production as far back as 1962 (Laura page?). Equally, the Yoruba Travelling Theatre groups, for instance, Ola Balogun, Late Hubert Ogunde, Adeyemi Afolayan (a.k.a. Ade Love), Adebayo Salami, Afolabi Adesanya and others pioneered the earliest movies in Nigeria. However, Kenneth Nnebue was the first to spearhead the production of movie in Nigeria when films were shot with video home system (VHS) cameras and edited in television studios using a couple of videocassette recorder (VCR) machines (Usman et al 236).

In fact, the local discourse around the video production was, almost since the production of Living in bondage in 1992, considering the video phenomenon in terms of “film industry,” something that would have soon been able to rival its Indian or American counterparts. Olayiwola who attributes video-film tradition in Nigeria to the Yoruba travelling theatre troupes, still averred that:

Undoubtedly, most available historical records on the history of Nollywood identify Living in Bondage as the premier video film… Igbo ethnicity and language brought a ray of hope into the industry. With the box office success of Living in Bondage, Igbo centred video-makers bombarded the industry, and within a short while, bestrode the home video market. And having established a vast marketing network in audio-cassette distribution in Onitsha, Aba and Lagos, it became relatively easy to convert a network for video marketing… “An Igbo-language production, Living in Bondage produced by Kenneth Nnebue in 1992, ushered in the birth of Nollywood.” Ebewo also shares this view, positing that Living in Bondage is credited with “jump-starting” the video film in Nigeria (189).

There is no gainsaying the fact that Nollywood has come to stay and its involvement in film production and distribution in addition to exhibition is enormous. Nollywood produces about 50 movies per week, second only to India’s Bollywood and ahead of Hollywood. Nigerian films can be produced within a month and are generally profitable within two to three weeks of release. Most titles are recorded in English and sell over 200,000 units (the usual break-even sales point in Nigeria) (USITC “Nigeria’s Film Industry”). With this, Lobito records the success of film production and distribution in Nigeria thus:

Since the emergence of its video industry in the 1990s, Nigeria has pioneered an innovative and highly successful model of film production and distribution. Lagos is now home to the fastest-growing film industry in the world, which releases well over 1000 titles a year without assistance from the government, NGOs or international film festivals (337).

The contributions of Nollywood, not only to national development, in terms of its cultural and social contents, but to economic development, in terms of opportunities and returns, have been captured by many participant actors and researchers.

Okome validates the above with the point that street markets across the entire African continent overflow with tapes and discs, which are restocked on a weekly basis (cited in Lobato 341). Furthermore, Nollywood has also generated its own an international distribution networks. As video is the dominant distribution medium in Nigeria, video films are for all intents and purposes ‘real’ movies – they are what millions of Nigerians watch, think about, and talk about. It is important to note that Nollywood films which are released straight to video or fail to get a distribution deal, have negligible audiences. Almost all the Nigerian films are commercially distributed, and typical sales for the average Nigerian film are around 20,000. So, while Nollywood is not the world’s largest film industry in terms of revenues or audience, it’s likely that it produces more films that significant numbers of people actually watch than anywhere else in the world (Lobato 341-342).

            This means that demand for Nollywood films – particularly among the African Diaspora – has also fuelled a surge in the export of Nigerian films. In this regard, Nollywood films are purchased and watched throughout Africa, the Caribbean, Europe, North America, and parts of Asia. Consequently, with limited channels for exporting movies legitimately, few or no international returns go to the actors, directors, and producers, and practically no related tax revenue goes to the Nigerian government. The Nigerian Copyright Commission (NCC) estimates that the country is losing over $1 billion annually to piracy (USITC “Nigeria’s Film Industry”).

Nollywood as a Creative Economy in Nigeria

Despite Nigeria's robust creative potential Nollywood especially to national development, its economic output remains sub-optimal. Available statistics indicate that the totality of the creative sectors presently produce a significantly lesser share of Nigeria's Gross Domestic Product (GDP) than the world average of 5.4 percent. In essence, their contribution to the Nigerian economy remains only a fraction of what it could be.

Among the principal factors inhibiting Nigeria from capitalizing on its tremendous creative potential is the inability of the creative industries to leverage on the available legal and policy framework to maximize their potentials. These potentials are in the area of production, marketing and distribution and it is in these areas that the problem of piracy and counterfeiting occurs. This scourge is infringing on the rights of the artists thereby limiting their ability to reap from their labour or sweat, thus the copyrights of the artists become subject of infringement.

Nollywood and Copyright Protection

Copyright can simply be defined as the exclusive right of the creator of certain kinds of creative works to control acts that may be done in relation to such works by a third party. Intellectual property law remains the primary jurisprudence for the protection of these entertainment industries, although contract, torts and criminal law have featured prominently in the legal framework of protection. The protection through national copyright legislation and international instrument has continued to grapple with the development through a systematic redefinition or expansion of the rights of creators where their works are produced, performed, adapted and distributed in the new media.

One of the vital and notable results of the emergent digital environment that has impacted on the entertainment industries is the more increasing convergence of media. Today, television, computers and telephony has overlapped making it possible to access different information in a single palm-held contrivance, be it television and Internet service. The distinctions among them have largely disappeared with the combined effect of legislative and commercial endorsement.

An important fact that must be borne in mind however is the fact that the foundation for the successful protection lies within the compensatory regime which has been evolved over time and accepted as a necessary incentive for creativity. This is epitomized in the concept of copyright. The entertainment industries depend on the copyright system for their survival. Film/recording companies for instance depend on the supply of literary, dramatic, musical and artistic works for their productions.

The process of production and dissemination of these works involve a considerable amount of financial and human resources. Major recording companies spend millions of naira on the promotion of artistes and the marketing of their works. Campaigns that attend events such as musical concerts, or television shows attract millions of people. All these would not be possible without the certainty that those who invest in these industries will be able to recoup their investments and be rewarded for their efforts. The orderly acquisition and transfer of rights in the various products emanating from the industry guarantee the return of investment by way of licence fees, sales and royalties. The copyright system therefore remains a cardinal determinant of the fortune of entertainment industries like the film industry.

In the context of the Nigerian film industry, the application of some of the protective provisions of the Copyright law, present a serious problem. It is sometimes difficult to establish with reasonable certainty, who the person responsible for the making of the film is considering the fact that in most cases, the relationship between those who are responsible for the artistic content of the film on the one hand, and those who provide necessary finance on the other, is not well defined. This, as experience has shown is a potential source of conflict. The solution here lies in creating a regime of express contracts as contemplated by the Copyright Act.

Section 9(4) of the Act enjoins a producer of a film to conclude, prior to the making of the film, contracts in writing with all those whose works are used in the making of the film. The rationale of this provision is that the law recognizes the independent status and creative quality of the different components that makes up a film. While the final product becomes the intellectual property of the producer, the law nevertheless, seeks to protect the interest of other authors whose works are included in the film. The importance of a pre-production contract cannot be overemphasized. Apart from mitigating the possible conflict that may arise in determining the issue of ownership, they could be used to determine the nature and extent of rights of all parties involved in the production process.

Specific Protection Provisions of the Copyright Law

Section 39(1) of the Act defines cinematograph film to include,

the first fixation of a sequence of visual images capable of being shown as a moving picture and of being the subject of reproduction, and includes the recording of a sound track associated with the cinematograph film.

By this definition, any sequence of visual images, which can be shown as a moving picture is protected, irrespective of the medium of fixation involved. In essence, cinematograph works embodied in celluloid, videotapes, compact discs or any other device attracts protection under the Act. It is also pertinent to note that in the wake of new technologies, the definition of cinematograph films have been expanded to include products that are not, strictly speaking, film. One of such is computer game. By its nature, a computer game produces different sequence of sounds and images each time it is played, depending upon the user’s interaction with the computer program. In jurisdictions where this issue has been subject of contention, the courts have held that computer games could still be categorized as film irrespective of the non-linear content. In coming to this conclusion, the courts have tended to adopt a technological neutral approach of considering the effect observed by a viewer, rather than the means utilized to project the images.

Subject to certain exceptions, the author of a cinematograph film has the right to control, amongst others:

  • The making of a copy of the film;
  • Causing the visual images in the film to be seen in public or the sound associated with the film to be heard in public;
  • Utilizing the sound track in the film for a record; and
  • Distributing to the public for commercial purposes, copies of the work by way of rental, lease, hire, loan or similar arrangement.

Sections 26 – 30 of the Copyright Act provides for the protection of performers. A performer is given the exclusive right to control the following acts in relation to his performance:

  • Performing;
  • Recording;
  • Broadcasting live;
  • Reproducing in any material forms; and
  • Adaptation of the performance.

A performance in the context of the Act is defined to include;

  • A dramatic performance
  • A musical performance; and
  • A reading or recitation of literary act or any similar presentation which is or so far as it is, a live performance given by one or more individuals.

The above rights subsist until the end of fifty years from the end of the year in which the performance first took place. An infringement occurs where any of the following is done without the performer’s consent or authorization in writing:

  • Making a recording of the whole or substantial part of a live performance, provided that where the consent sought is to make a recording of the work for research, private or domestic use, such consent shall not be unreasonably refused;
  • Broadcasting live, or inclusion live in a cable programme, the whole or substantial part of the live performance;
  • Performing in public of the whole or substantial part of the performance;
  • Showing or playing in public, the whole or substantial part of the performance for commercial purposes;
  • Broadcasting or inclusion in a cable programme of a substantial part of the performance by means of recording which is, and which that person knows or has reason to believe was made without the performer’s consent;
  • Importing into the country otherwise than for private or domestic use, a recording of a performers’ work which is an infringing recording; or
  • In the course of trade or business, selling or letting for hire, offering, distributing or displaying for sale or hire a recording of a performers’ work which is an infringing recording.

Where a person has in his possession, custody or control, in the course of trade or business or otherwise than for private or domestic use, an unauthorized recording of a performance, a person having the performers’ right or recording rights in relation to the performance under this section shall be entitled to an order of the court that the recording be forfeited and delivered up to him.

Militating Factors to the Development of the Film Industry

Piracy

The greatest hindrance to adequate return on investments both to the right owners and producers in the film industry despite the export potential is piracy. It has been discovered that almost all exports of Nollywood films are pirated copies. The World Bank estimates that for every legitimate copy sold, nine others are pirated.

In spite of the elaborate provisions of the law, practical reality shows that it is still difficult for authors and right owners to gain the full benefit of the copyright system. There is no doubt that piracy; counterfeiting and other intellectual property abuses remain one of the negative challenges to the development of the entertainment industry particularly the exploding film industry. Piracy which may be generally defined as the unauthorized commercial exploitation of copyright works thrives in an environment devoid of control and inadequate regulation and enforcement. Piracy has become not just an act of infringement of the rights guaranteed under copyright law but has grown into an industry, a systematically organised industry that erodes the viability of an emerging copyright system as well as the gains of copyright protection. Studies have shown that the problem of piracy is indeed global and ravaging the various categories of entertainment products.

Another worrisome trend in film piracy is the unauthorized rental of films by video rental outlets. This trend has been exacerbated by the seemingly prolific nature of the local film industry which has demonstrated a high turnover of home video production and a low level of cinema culture. This presents a serious challenge to rights administration and enforcement in the film industry in Nigeria.

Digital Technology

There is no doubt that the operating environment is subjected to new challenges, one of which is advancement in technology. As mentioned earlier, the new digital environment has changed the architecture of value chain, comprising production, distribution and consumption. This has posed a major challenge to the tension between copyright and piracy and opens a new vista for the way entertainment business is conducted. The virtual reality as (opposed to physical or terrestrial reality) has collapsed that structure which is based on the business model of production and distribution.

The new media, information and telecommunication technologies such as the videocassette recorder/tape in the late 1970s, the digital media in the 1980s, and the Internet has revolutionized delivery of goods and services in the global market place. Access to information, education, and entertainment and productivity tools has been made more extensive, less expensive and more convenient than ever before. The implication of these developments to the copyright system is that it is becoming more difficult for authors to maintain firm control over their works in line with the classical rights guaranteed by the copyright law. For instance, films, when digitalized and produced in the DVD format are more prone to copying and susceptible to easy communication and distribution. Millions of films are being downloaded in breach of copyright each day.

Fortunately, the global copyright infrastructure has responded to these challenges through legislative re-engineering and adoption of some practical and technical approaches to protection. Consequently today, the main intellectual property issue which scholars are still devoting great effort in discussing is the survival of copyright by virtue of the Internet.

Lack of Industry Models

Piracy thrives in the entertainment industry where the production and distribution capacity is limited. The absence of clear channels of distribution has pushed the consuming public to fall back on cheap pirated products which are easily available. The pirates have established strong distribution networks which ensure that their illegal wares permeate the market and render the marketing of genuine products unprofitable. The lukewarm response of stakeholders who often pay lip service to the challenge of effective administration and enforcement of their copyright has not helped the situation. This factor is seemingly aggravated by low level of awareness about the dynamics of the copyright system as well as issues of piracy. The lack of awareness affects both industry practitioners and the consuming public.

Management and Contractual Matters

The entertainment industry is made up of various practitioners, all of whom must function in producing a final entertainment product be it movie or music. The relationship between these various participants is regulated either by statute or by contract. For instance, the Copyright Act enjoins a producer of a film to conclude, prior to the making of the film, contracts in writing with all those whose works are used in the making of the film including the performer. The rationale for this provision is that the law recognizes the independent status and creative quality of the different components that makes up a film. While the final product becomes the property of the producer, the law nevertheless, seeks to protect the interest of other creators whose works are included in the film. The experience in the Nigerian entertainment industry however shows that many performers still do not have the benefit of sound contracts. Even though the law has provided a basis for their engagement, the absence of professional managers and advisors have often exposed performers to exploitation through unconscionable contractual arrangements entered into with producers or in some cases total absence of contract. These factors have affected the fortunes of performing artiste and by and large, the orderly growth of the entertainment industry.

Related to this issue, is the absence of strong industry guilds which could provide platform for collective bargaining and setting of minimum engagements terms. This has created a scenario where the fortunes of a performer are left to be determined solely by producers who are naturally the stronger parties in the bargain.

Tackling the Challenges

In the last two decades, the Nigerian entertainment industry has witnessed a phenomenal growth that has made it imperative for both the government and private sector to take a more critical look at issues involving the industry. In a bid to address some of the challenges of the industry, there has been at various times some legal, regulatory and policy intervention both at national and international levels. Such initiatives include (but not limited to) the ones discussed below.

Domestic Regulatory Intervention

Through the rigorous application of the provisions of the Nigeria Copyright Commission Act.

Anti-Piracy Measures: Copyright (Security Devices) Regulations 1999.

This is by the introduction of anti-piracy security devices, by issuance of the Copyright (Security Devices) Regulations 1999. The regulation was made pursuant to the powers vested in the Commission in Section 18A of the Copyright Act. The regulations prescribes the compulsory use of hologram, an anti-piracy security stamp on all sound recordings and cinematograph films intended or offered for sale, rental, hiring, lending, or otherwise distributed to the public for commercial purposes, in Nigeria. The essence of this prescription is to make it possible to distinguish genuine copyright works from counterfeit copies. Any tape not carrying the hologram is deemed a pirated copy and may be confiscated during anti-piracy operations of the Commission. It is an offence under the law for any person to distribute or sell any work envisaged under the regulation without affixing the hologram; or to produce or import into the country any prescribed anti-piracy device without the Commission’s authorization.

The Copyright (Optical Disc Plants) Regulation 2006

Distribution of entertainment content on optical media such as compact discs (CDs) and digital video discs (DVDs) has fed the boom in worldwide consumption of film, music and entertainment software. Unfortunately, optical media piracy has become an increasing threat to these key copyright industries. Till recently, piracy, both analog and digital, has been fought through the traditional protections offered under copyright laws. However, optical disc piracy comes with new challenges. An explosion in the world capacity to produce optical media products has accompanied the growing demand for these products. Unfortunately, production capacity greatly exceeds legitimate demand, and much of this excess capacity is devoted to unauthorized production.

One significant achievement of the optical discs plants Regulation is the introduction of mandatory inscription of a Source Identification (SID) Code on all optical discs produced in Nigeria. The SID code is a joint initiative between International Federation of Phonographic Industries (IFPI) and Phillips Consumers Electronics who hold the patents in the compact disc technology.

Copyright (Video Rental) Regulations 1999

Over the years, video rental activities have constituted a major avenue for illegal exploitation of products of the Nigerian film industry. The indiscriminate rental activities have resulted in loss of colossal revenue accruable to owners of copyright in film. The Nigerian Copyright Commission issued the Copyright (Video Rental) Regulation 1999 as a response to complaints from right owners in the movie industry against the widespread illegal rental of their works.

The Video Rental Scheme has the potential of enhancing the revenue prospects of movies by ensuring that all rental activities in respect of movies are paid for in advance. Given the prevalence of rental activities, this option is therefore a significant avenue of harnessing the benefit of the copyright system for film producers.

Collective Rights Management Option

This management option is currently available to the music industry and recognized under the Act, but with the digital network environment and other secondary uses of films, it has become imperative to extend the concept of collective administration to the film industry. Such facility has been known to be adopted in countries like Canada, Australia, Germany and France. Any person desiring to operate a collecting society is required to obtain the approval of the Nigerian Copyright Commission.

New Business Strategies          

In their continuing quest to find better protection for their intellectual property, many industry players have come up with innovative business models and dissemination of best practices that encourage consumers to find and use legitimate products. As it is well known that one of the factors that enhance trade in counterfeit and pirated goods is the scarcity of original products and sometimes absence of distribution networks, some producers have come up with a system of providing information on their products to consumers through

Internet Web Sites

In the context of physical distribution of intellectual property goods, the use of security labels like hologram has become a standard practice. The advantage of the hologram is that it helps the enforcement officials as well as the consuming public to clearly, and easily identify legitimate products. However, experiences have also shown that such devices are prone to counterfeiting.

In an increasingly competitive business environment, plants are eager to assure their customers security for their products, and that their IPRs are protected. These various initiatives are positive indication that beyond legal protection and enforcement, solutions to entertainment industry challenges are also to be found in the business and best practices of industry stakeholders.

Conclusion

Copyright law will continue to play an important role in the development of the entertainment industry. It is the catalyst for boosting creativity and sustains the production environment. For the entertainment industry in Nigeria to thrive and play the role expected of it, the law must provide sanctions that are directly proportional to the unlawful profit made by the infringers, or to the loss in tax revenue to government, thereby stifling economic growth. Besides, Nigeria can borrow from developed countries the trend of adopting sanctions beyond the primary intellectual property legislation to control certain abuses.

Beyond statutory provisions, serious emphasis should be placed on enforcement of rights. Often, the weak financial position of right owners constitutes a barrier to enforcement. In such a situation, the role of relevant public institutions like the Nigerian Copyright Commission, the Nigeria Police, the Nigeria Customs Service, and other regulatory agencies like the National Broadcasting Commission, the National Film and Video Censors Board is crucial. This is the only way that Nollywood can be shown as a veritable contributor to national development.

Film Producers must be knowledgeable in the provisions of the law regarding their rights and also keep abreast of modern trends regarding doing business in the industry. The void created by the absence of credible distribution channels for genuine works has not only affected the fortunes of right owners in the domestic market, but also internationally, where Nigerian works have become major entertainment products. This scenario has once again brought home the pressing need for establishment of new structures and new models to support the business of entertainment. There is need also for right owners to consider the option of assigning distribution rights for territories beyond Nigeria. This will ensure not only the repatriation of revenue earned for exploitation of works abroad, but also the possibility of monitoring and enforcement of rights in such territories. The gains of the legal, regulatory and enforcement initiatives depends largely on a well organised distribution structure that promotes an orderly and well managed best practice among practitioners and stakeholders.

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