Although I have read a few news items and some reactions to the 6^th Code for Broadcasting in Nigeria, only the intervention of Jason Njoku, Chief Executive Officer of Iroko TV aroused my interest. Even when it did, I deliberately refused to be “moved” by the sentiments he expressed because of what I concluded was enlightened self-interest. It was when I eventually got my virtual hands on one a copy that I found myself in the midst of exhilaration and worry. And like water and oil, these two emotions rarely mix.

Pray, who is thinking for the National Broadcasting Commission? Is there anyone experimenting with Sir Robert Louis Stevenson’s Dr. Jekyll and Mr. Hyde, using the Nigerian broadcast regulator as the institutional guinea pig?

I am asking this question because, having read the document in question, the good intentions of the NBC were quite manifestly expressed in the document, whittled down only by some populism and overzealousness, possibly driven by the tendency of NBC to perform both the regulatory and the consumer advocacy roles. And why not? Number 4 in the 16 listed functions of the NBC mentions very clearly, “Regulating and controlling the broadcast industry.” While there is no arguing the importance of the existence of a regulatory agency for broadcasting in Nigeria or any other country for that matter, the insertion of the word, “controlling” may be where we have a problem. To control is to; “(have the power) to influence or direct people’s behaviour or course of action.”

The strange prescriptions in the new NBC Code was obviously influenced by the understanding that the regulatory body can actually “influence and direct” the broadcast industry. And when you look at Number 7 on this log of duties, which says the Commission also has powers to uphold “the principles of equity and fairness in broadcasting”, it becomes easy to understand why the regular is trying to create a Code that will ensure it behaves more like an activist institution than an entity that should be saddled with encouraging innovation and creativity in the business.

If you ask me to put it in a single sentence, I would summarise the motivation behind the 6^th Code for Broadcasting in Nigeria as “to domesticate an increasing volume of broadcast content and increase investments in production infrastructure in Nigeria.”

But the problem with trying to even help the NBC to think better of its objectives is starts with the very first portion of the Code which was captioned “ANTI COMPETITIVE OBJECTIVES.” Section 0.2.2.7 says the Code seeks to address the “misuse of monopoly or market power…” in the broadcast industry.

If you ask me, I will say that the NBC should have allowed another agency to handle this job. Oh! I forgot that “controlling” the industry is also listed as part of its duties. But then, some more critical thinker would be pushed to ask if broadcasting in this country had developed so to the point our problem has become monopoly? The opportunities in the broadcast industry has not even been scratched. Every Nigerian has been waiting for NBC to unlock the real potentials and opportunities in this rich field via the Digital Switchover (DSO) that was expected to open a wider spectrum for the industry, enable greater specialisations and empower content creators for the “real deal.”

Up till now, the NBC has not satisfactorily explained why it has failed to migrate the industry from analogue to digital, yet it is so happily publishing a code that, as far as I can interpret, will only take away the little values currently derivable from the struggling industry. A casual tracking suggested to me that this 6^th Code had been in the works since 2016.2017. It is rather embarrassingly puzzling that an agency that failed to join the world to migrate from analogue to digital broadcasting on the set date of January 15, 2016, 10 full years after commencing the process and which hasn’t implemented the process, after the pilot switch in Jos, Plateau State, has been busy scripting a Code to regulate competition in the industry it should actually be widening the scope and sphere of its competition and competitiveness.

Up till now, the NBC has not satisfactorily explained why it has failed to migrate the industry from analogue to digital, yet it is so happily publishing a code that, as far as I can interpret, will only take away the little values currently derivable from the struggling industry.

I am struggling to dwell substantially on what I think are the good sides of the NBC Code. My intention at the start, was to have a very short article and, if the spread of this Code would enable, I will be brief. To achieve that, I will only focus on the sections relevant what I think is the mens rea of the NBC as well as those that ended up as its actus reus.

Giving Local Content a Character

Section 3 of the Code dwells totally on Local Content as far as broadcasting is concerned. This is very encouraging and bears immense lessons for our players in the oil & gas industry where defining what constitutes “local content” has been impossible since the conversation around that dire subject commenced in 2004.

Broadcasting is s portent economic, social and cultural vehicle. Its messages have far-reaching influence culture marketing and behavioural change. We imperceptibly imbibe a lot of things from what we watch on television and, for those with already very strong broadcast industry, a whole lot is exported via this medium. Its economic relevance manifests in diverse ways. The slant of broadcasting content and the images and imageries strongly influence the demands patterns of people; the choice of food we eat, our dress style and modes of dressing and many more. The countries with huge export of broadcast content has high potential to also export certain goods and services.

Secondly, Nigerian content producers (movies, music and more) outsource a lot of their production works abroad. In the advertising industry, the issue of domestication of production works and even scripting has been on the table for many years. Thanks to NBC, a regime where at least 75 percent of programme expenses and 75 percent of post-production expenses are spent on Nigerian businesses and talents.

The same section gives legal teeth to the protection of the intellectual property rights of Nigerian musicians and provides that prior to the use of the artistic works of musicians, broadcasters shall (Section 3.18.3):

1. Obtain the appropriate license from the owner or the exclusive license sufficient to authorize the use contemplated and shall pay all applicable license fees and/or exclusive licenses of the copyright and;
2. Pay all sums, if any, payable to all collective management organisations and thereby obtain a clearance that is required…
3. Failure to effect payment of the license fee and obtain the clearance before the prior use of the broadcaster…shall amount to a Class B offence under this code, without prejudice to the owner’s right to lodge a report with the Nigerian Copyright Commission for prosecution as well as seek civil remedies where applicable.

By this Section, the NBC has provided additional layer of protection from Nigerian musicians that, already, are enjoying significantly strong cover from the Nigerian Copyright Commission and the Copyright Society of Nigeria (COSON).

This is not in any way suggesting that this entry in the Code is superfluous. There is no level of security placed to protect intellectual property rights that will be considered too much. Nigeria arrived the global stage with unique musical content and revolutionary dance routines that world have begun to copy. That is the power of broadcasting. Through channels like Soundcity, MTV Base, Hip TV and Urban Channel, all available on DSTV, Nigerians have taken their musical talent to the world and are getting hugely rewarded for it.

NBC and User Generated Content

I do not know what Section 5, which focuses on what was called “Unconventional Reportage” is doing in this Code, same way I do not understand Section 2, which deals with “Web/Online Broadcasting.” For an agency that should be populated by highly experienced people, Section 5 is even funny.

People in government have at several points hinted at regulating the Social Media and it seems the NBC wants to smuggle censorship into the broadcasting landscape through this Code. But shouldn’t someone have thought of doing it a bit more intelligently, especially given the provision of Section 5.6.1, which clearly indicates the reason for the entry un the Code?

The section states that, “The broadcaster shall approach with restraint the use of material from user generated sources in order not to embarrass individuals, organisations, government, or cause disaffection, incite to panic or rift in the society at large.”

What is a broadcast regulators business with news items that “embarrass people or government”? Does it mean that if the content in question represents the truth but “embarrasses” the subject, it has become the business of NBC to sanction the affected broadcaster?

The rest of the other provisions in the Section are, if you ask me, absolutely unnecessary, being as they are stuff every news editor should know. Except NBC desires to mask a refresher course on News Selection as part of its Code, there is no point reminding anyone that user generated content has to be vetted before it is put on air.

Back to Section 2, well, …I am not a lawyer, but it does seem our regulator might have issues with distinguishing standard broadcasting as we know it from online broadcasts and streaming. If the NBC regulates everything that has the word, “broadcasting” in it, then every Nigerian that “broadcasts” all manner of content on You Tube, WhatsApp and Telegram should be sending material for vetting or at least subjecting them for NBC’s audit.

NBC and Sports Rights

It is difficult to understand what NBC wants to achieve with this section. I think being a public sector institution, the NBC appears to be seeing broadcasting more as a public utility vehicle than a business. It makes no sense therefore, for the regulator to be stressing, as it did in Section 6.1 how broadcasters should approach sporting events as tools for national cohesion. The broadcaster is first of all a business man or woman. This is not saying sports rights should be acquired for divisive purposes. Of course, it is taken as given that sports unite; it is a naturally occurring trait and need not be the duty of the broadcaster to infuse. Exploiting that unity to grow his business is what interests the broadcaster.

But the confusion starts in Section 6.2, which discuses “Acquisition of Sports Rights.” The Section was not clear on which sports rights: rights for sporting events taking place in Nigeria; rights for sporting events Nigeria is participating in or rights for every sporting event, including European football leagues that has become very popular in Nigeria, thanks to DSTV?

If my advice would be taken, I would ask NBC to expunge this section totally because it trifles the whole idea and objective of broadcasting being a business. How does NBC think that an entity would invest in acquiring the rights to sporting events and then come back home to share these rights with other broadcasters at a price that is fair and equitable? What is fairness and equity in business? Should it even be the business of the NBC to determine this?

Predicating the sponsorship of foreign sporting events on previous sponsorship of local ones is also as senseless as it is impracticable. In fact, it does look like the NBC has a few advertisers it plans to witch-hunt here. Otherwise, it needs no explaining that Sporting events are properties owned by entities and that a lot of marketing and branding goes into making them attractive and commanding premium prices that sponsors pay. If the owners of the local sporting events are doing so little to market them, what is the point forcing an advertiser to sponsor them when there is no alignment with their brands and business objectives? Once a property is attractive, sponsors who need them to connect to their markets will walk through the door. The Lagos Half Marathon is an example. The Athletics Federation of Nigeria and the Lagos State Government have been able to strengthen this brand and that is the reason Access Bank has been on it for many years. The same cannot be said of the Nigeria Professional Football League, which has not been marketed to draw fans to the stadiums as well as draw fans at home to watch. Why force a brand to sponsor such a property as a condition for sponsoring a better branded foreign one? It just does not make sense!

Domesticating production versus Anti-Competition

Section 7 of this Code is beautiful as a peacock and should help the local production industry. For many years Nigerian advertisers and music video producers have spent billions of naira in production and post-production jobs abroad. The excuse had always been absence of standard production studios and facilities in Nigeria. While this was valid argument in many cases, I also know that a lot of guys in the advertising industry exploited this to collect funny “estacodes” that unreasonably hike the cost of production.

Advertising, like music, carry cultural messages. As Nigerian has become a great musical export, there is this dissonance that occurs when you are on a music video and the images you see appear foreign. The same happens with adverts. I have often complained aloud about ads bearing South African models and their funny accents. As great as the production might be, stuff like these diminish the engagement value of the commercial.

To this extent, NBC has done our culture and economy a world of good. And that is also going to create business and employment opportunities for many Nigerians.

But I have a problem with Section 9. Big problem!

What this suggests is that if, for instance, I create a programme or acquire one and market it successfully, the NBC would compel me to relicense to any other broadcaster that shows interest at a fee I cannot determine.

Section 9.0.1 provides in part that, “…no broadcaster or licensee shall enter into any form of broadcasting rights acquisition either in Nigeria or anywhere in the world to acquire any broadcasting right(s) in such a manner as to exclude persons, broadcasters or licensees in Nigeria from sub-licensing the same.” Section 9.1 also compels license holders to supply their licensed programmes to other broadcasters, upon demand and within “reasonable time” and at a given premium, failing which penalties follow.

What this suggests is that if, for instance, I create a programme or acquire one and market it successfully, the NBC would compel me to relicense to any other broadcaster that shows interest at a fee I cannot determine. This is sadly regressive and is discouraging to enterprise. I do not know who is lecturing the NBC on some of these things but provisions like this one is evidence that, as highlighted earlier, that NBC wants to “control” the industry rather than steer it for growth and progress.

NBC should know that in designing or seeking to acquire programmes, certain segments of the audience are mapped and deliberately targeted. Once a programme begins to attract a lot of eyeballs as compared to competition, its rating rises and along with it, the potential commercial value. Rating agencies like Nielsen’s Television Audience Measurement (TAM) in the United States, and Broadcast Audience Research Council (BARC) in India, make tons of money providing radio and television audience research services to advertisers.

Businesses like what TAM and BARC India offer will have no place in the kind of ecosystem that NBC is trying to create in Nigeria where, by the strange decree of this Code, producers and/or licensees of commercially viable programmes would be prevented from enjoying the full benefits of their creativity, investments in marketing and vision. What NBC is trying to usher in is a regime of entitlement where broadcasters would prefer to sit on their hands in wait for a clever and creatively future-forward entity to generate compellingly sellable content at which time they would apply for a relicensing, failing which, they would run to the NBC to invoke the provisions and, possibly, punishments.

It is obvious that NBC, with the new Code, is trying to help new entrants in the Pay TV market, but it makes no sense stopping the progress of an entire industry simply because you want a new entrant to get a foothold. But if fairness is what the NBC is interested in enthroning in the market, why did it cement the rights of recording artistes in Section 3 but strips programme producers and licensees of their rights in Section 9?

If the recording artiste deserves protection, the production person or one with license to a programme content deserves the same protection and exclusivity. NBC should not make people believe that it is promoting a culture of entitlement in the industry. What is sauce for the gander should also be sauce for the gosling, and as Cicero wrote those centuries ago;

“True law is of universal application, unchanging and everlasting; …And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times…”

This Code should pass the Cicero smell test for it to not appear like it was designed for specific people and for a specific purpose.