April 28, 2017

What ‘Okafor’s Law’ Teaches About the State of Copyright in Nigeria – Olaoluwa Oni.

What ‘Okafor’s Law’ Teaches About the State of Copyright in Nigeria – Olaoluwa Oni.

On the 24th of March, 2017 Omoni Oboli’s “Okafor’s Law” premiered without an actual screening of the movie, calling into question the appreciation of Copyright Law within the Nigerian legal and judicial system. Even more, given that the premiere was disrupted by the mechanism of the infamous Interim Injunction, one must investigate the issuing authority’s understanding of the principles that underlie Copyright Law.

A bit of legal context: the Nigerian judicial system is anchored on the principle of Fair-Hearing which primarily requires that any arbiter of dispute calls for, and, where received, considers the arguments or positions of all parties to the dispute before making a determination of rights and liabilities. The Interim Injunction is a long-established and accepted exception to this rule. It permits a Judge to issue an order based on the application of only one party to a dispute, without notice to (or submissions from) the other party(ies), in legal jargon “ex-parte.” The Interim Injunction is a permitted deviation that evolved to enable a judge act in urgent situations where it is near-impossible to call for the arguments of both parties, situations where the threatened outcome is so fatal that it cannot be adequately redressed by an alternative remedy, say, by the grant of an order for monetary compensation. Think: an order to stop the execution of a death sentence or to prevent a house from being demolished; Interim Injunctions should be rarely and gravely used. The requirements of Urgency, and Inadequacy of Alternative Remedies are only two in a long line of requirements that an applicant must meet to qualify for the grant of an Interim Injunction. In short, the act or event to be prevented by an Interim Injunction should be such that, if not prevented would render the main suit nugatory.

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To the case at hand, by granting an Interim Injunction against the premiere, the Presiding Judge inevitably concluded that: there was an immediate urgency to preventing the premiere of a movie that had already screened in film festivals (to the knowledge of the Plaintiff), that the Plaintiff could not be adequately compensated by an order for monetary compensation and a Declaration of Rights, and that the main suit, which is presumably for a Declaration of Rights and monetary compensation, would be irreparably affected if the movie were allowed to premiere; the Court’s order is bad law.

An interim injunction should not determine the rights of the parties in a suit; its primary purpose is to preserve the Cause of Action in the main suit. By preventing the premiere of the movie, the Court has essentially made a determination against the right of an alleged Author to exploit her creation, a determination that has no obvious ancillary effect on the main suit than to, perhaps, put the Plaintiff in better standing to negotiate. The legitimacy of the Interim Injunction is brought into further question when weighed against Jude Idada’s interview, published by Pulse.ng, far back as September 29th, 2016. In this interview, Idada claimed rights to the movie and alleged infringement on his rights. As such any superficial urgency to preventing the premiere was created by the Plaintiff’s deliberate failure to act until such a time as it could abuse the mechanism of Court, an abuse that has now been approved by the Court, and has created the precedent for like-minded mischief makers. The Court is required to consider the conduct of an Applicant before granting an order of interim injunction; the Plaintiff’s conduct in this instance presents as malicious.

The Court’s order, in this case, reveals a troubling underappreciation of copyright law. The first point to note in this regard is that Copyright law does not protect ideas, but expressions of ideas. As such, except the Plaintiff’s case alleges that the movie “Okafor’s Law” was created from the actual screenplay written by Jude Idada (and not just the general plot of it as was alleged in the Pulse interview), the Plaintiff’s main suit lacks a substantial issue to be tried and the Plaintiff has no legal right recognized under Copyright law. The grant of an Interim Injunction requires that the Applicant shows a substantial issue to be tried as well as the existence of a recognized legal right.

Secondly, the underlying essence of Copyright law is to encourage the creation of works of authorship for the enjoyment of society. In this wise, the creator of the work is granted the exclusive right to exploit the work primarily to encourage further creation for the benefit of society. A Court sitting over a copyright dispute should ultimately be guided by the public’s interest in consuming creative works and should, thus, issue injunctions carefully, especially where the injunction is to act against a work that has already been released to the public (through film festivals).

The essence of the suit against “Okafor’s Law” was to prevent Omoni Oboli from exploiting a work when her authorship of said work was being challenged; this concern is easily redressed by a grant of monetary compensation and Declaration of Title after a successful litigation of the suit.  Unfortunately, the Court failed to appreciate these nuances and has now created a judicial system that exposes authors to unscrupulous claims from mischief makers, the Court has created a system that runs contrary to the very foundation upon which Copyright law is anchored.

The Court system does not solely shoulder the blame of under-appreciation of the Copyright system. Oboli, and all related entities were as good as put on notice of the contrary claim from September 2016, when Jude Idada gave an interview claiming, at least, part-ownership of the work. She and her lawyers had the chance then, to obtain a Declaratory Order from the Court, which order would have forestalled the present situation. Unfortunately, perhaps in the absence of good counsel, Oboli did nothing about the claim.

Here’s the thing: if you would not organize a housewarming party while the title to your house is in contention, then you really should not organize a movie premiere while a claim against your authorship subsists.

This “Okafor’s Law” situation makes a loser of everyone: the Plaintiffs who have lost the opportunity to monetize their claim, the Defendants who have lost the investments put into the theatrical release of the movie, the audience who have been deprived the enjoyment of a creative work, and the Nigerian court system that has displayed its ignorance of the basic, underlying fundamentals of law and justice.

Too bad.

Author’s Bio: Olaoluwa is a graduate student at the New York University, School of Law where she studies Intellectual Property and Innovation law. She tweets on @lalspeaks.

(Editor’s note: News reports monitored on Friday March 31, 2017 say the court has granted Omoni Oboli, leave to show the movie at cinemas.)

 

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