The Federal High Court of Nigeria has ruled on the amendment to the 6^th Edition of the Nigeria Broadcasting Code (the “Code”).  By way of background, the National Broadcasting Commission (the “Commission”) issued an amendment to the Code in March 2020, which made the following significant changes to the broadcasting ecosystem:

• • Wholesale offer, which essentially grants the Commission the power to compel broadcasters to sublicense broadcast rights;
  • Prohibition of agreements in restraint of trade/ abuse of a dominant position, which prohibits broadcasters and licensees from entering into any form of broadcasting rights acquisition in Nigeria or anywhere in the world to acquire any broadcasting right(s) which exclude persons, broadcasters or licensees in Nigeria from sub-licensing the same;
  • Acquisition of sports rights, the Code prohibits the exclusivity of sporting rights in Nigeria; and
  • Local content requirements, the Code states local content requirements and thresholds which apply to all categories of programming.

Unsurprisingly the amendment to the Code was received with criticisms by broadcasting operators and content creators. The criticism largely centred on the legality of amendment to ownership of intellectual property as guaranteed under the Nigerian Constitution; the Copyright Act and International Treaties to which Nigeria is a signatory. The amendment was also criticised for attempting to abrogate the right of parties to freely agree the terms of their contract, by modulating exclusivity, the right to ownership of property and the power to compel sublicence of a work or production.

Based on credible news reports, a concerned stakeholder in response to the amendment, filed an action at the Federal High Court.[1] The Court, in delivering its judgement, held that the Commission does not have the power to prohibit exclusive arrangements and compel the sub-licensing of privately acquired broadcast rights as such is against the Constitution of the Federal Republic of Nigeria and the Copyright Act. The Court held that an acquisition of exclusive rights to broadcast a particular program is an investment for returns and no-one should be forced to surrender same when it is lawfully acquired.

The Court also granted perpetual injunction restraining the Commission from further implementing the amendment to the Code.

We continue to monitor the space and see whether there will any comeback by the Commission, suffice to say that this is clearly a welcome development.

[1] Femi Davies v. NBC FHC/L/CS/1152.2020 (Unreported)