WayForward@ITREALMS

Wednesday, March 25, 2009

Copyright Commission and controversial raids


The Nigerian Copyright Commission (NCC) has been lately enmeshed in controversial piracy raids over rebroadcasting rights with some local channel operators. REMMY NWEKE x-rays contending issues and way forward.


Recently, both local and international media stormed their readers with various activities of the Nigerian Copyright Commission (NCC) in its bid to curb piracy-related issues in the country.

Particularly, the raid on some Multichannel Multipoint Distribution Service (MMDS) operators, which left stakeholders wondering if actually officials of NCC were working for the growth and development of the industry or just operating within ‘its’ own laws invariably different from the Nigerian constitution.

Of precise attention was the revelation that NCC does not re-verify reports before raiding an organization under any allegation not mindful of the implications, let alone agree to apologize for a purported raiding, which turned unpleasant.

During the recent appearance before the National Assembly, especially, before the lower house’s committee on Justice based on the complaints registered by the management of Multimesh Communication Limited against NCC, it was astonishing to learnt that NCC does not engage suspects even indirectly before carrying out raids, at least, via thorough investigations, over what Multimesh termed as illegal closure of its broadcast stations, vandalization of transmission facilities and falsely  accusing it of indulging in piracy.

This, it was gathered was as a result of a dispute between Multimesh and HiTV, since last year over some contractual agreement that went sour, in which HiTV reported Multimesh to the NCC, alleging it was pirating its programmes. On the other hand, NCC said, it raided Multimesh station in Calabar, not knowing that its broadcast of HiTV programmes were based on a contractual agreement between the two companies, but refused to apologise.

Recounting the ordeal, the chief executive officer, Multimesh, Sir Godfrey Ohuabunwa submitted to the Committee that on January 8, 2009, operatives and agents of NCC “vandalised, harassed and carted away transmitters and other equipments consequently shutting down the station on allegations by HiTV that they were pirating their programmes. In the course of this, we had to shut down transmission for three weeks. We lost about N36 million worth of equipments and about N30 million losses in revenue as we were unable to broadcast for about three weeks within the period.”

Sir Godfrey also said his company suffered a lot of credibility problem by the mere fact that the NCC branded it, Multimesh as pirates, insisting that his firm has a contractual agreement with HiTV to broadcast their signals in the South-South political zone with no restriction to channel.

“We cannot understand why this action was taken by the NCC, because we have already informed them by writing about the contractual agreement we have entered with HiTV before they raided us. We have tried to settle the matter between us, the NCC and HiTV after the intervention of the Nigerian Broadcasting Commission (NBC),” he said, underlining the fact that his firm is not asking for damages, but wanted NCC to apologize over their actions, “So that we can restore our good name.”

The Legal Adviser to NCC at the session, Mr. Jacob Fagbemi told the committee that it had no prior knowledge of the two parties having a contractual agreement before the incident. “We are surprised to find out that the two companies had a contract. We acted based on the petition that HiTV sent to us that Multimesh was pirating its programmes from the station in Calabar. After we have made our surveillance we confirmed that Multimesh was actually broadcasting HiTV programmes. So, we clamped down on the station. We did not do it to please HiTV, but to enforce the law”, he said.

Chairman, House Committee on Justice, Hon. Henry Dickson (PDP/ Bayelsa) in his reaction ask if NCC would have raided the station if it knew of the agreement, Fagbemi said they would have acted differently, pointing out that it was not part of the Commission’s procedure to reach out to suspects before the raid. Dickson also expressed worry over the development, saying the Copyright agency was going out of its mandate to enforce contractual agreement that favours one side, instead of dealing with piracy or even bringing the two warring party to a roundtable.

Most of the members of the Committee equally expressed shock at the hard stand of NCC against Multimesh, more so that the company simply demanded an apology, not compensation, but promised to have a verdict that would be favourable to all parties in the case.

Although, Multimesh may have not ruled out plans completely to sue the Copyrights commission, but not after exhausting every other avenues for peaceful and amicable resolution of the issues at stake. Multimesh insisted that NCC raid was illegal.

Reports had it that NCC enforcement team led by one, Mr. Ajala and made up of armed police men, reportedly raided Multimesh office in Calabar, Cross River State and took away transmission equipment and damaged quite a number in the process.

Confirming this via a petition dated, January 8, 2009, and addressed to the Minster of Justice and Attorney General of the Federation, Chief Mike Aondaokaa, and copied the National Broadcasting Commission (NBC), Sir Godfrey said the raid was malicious because the bone of contention was not piracy, but a business dispute as claimed by Entertainment Highway, even as he decried that NCC instead of resolving the issue amicably, deployed its enforcement team to Multimesh office in Calabar, describing the raid as “maliciously vandalizing its station in Calabar for reasons best known to them - NCC.”

“For the purpose of clarity, we have a subsisting three years agreement with Hitv and have paid for the rights for Rivers State; we have provided Hitv a N30,000,000 million, Bank Guarantee with another N18,000,000m upfront payment made into their account with GTB. We are not pirates as falsely reported by Mr. Toyin Subair,” Sir Godfrey stated in the petition. Appealing to the Minister for his personal intervention, saying that what happened was that since the initial execution of the agreement and payments made to Hitv Ltd.

“We have had a lingering misunderstanding over the rebroadcast rights and channel carriage license,” he said, noting that the development was well reported to the NCC and National Broadcasting Commission (NBC), stressing that NBC was shunned by Subair in their attempt to settle the differences.

Raising a special complaint against the current Director General of NCC, Mr. Adebambo Adewopo, Sir Godfrey noted that Mr. DG had from inception of the relationship between Multimesh and HiTV been intimated with all the developments, but chose not to do anything, instead, he sent his men and policemen to raid Multimesh office.

Sir Godfrey alleged that Hitv plan is to sustain very strict monopoly and exclusivity which are in sharp contrast with the NBC laws. “My Lord, we are of the strong opinion that Mr. Toyin Subair and Management of Hitv and Highway Entertainment Ltd are deliberately harassing us and other cable operators in Nigeria in their greedy plan to maintain monopoly and exclusivity in airing the English Premier League (EPL) in Nigeria, which is completely against the National Broadcasting Code and the Federal Government Policy in deregulating and deepening the broadcast industry in Nigeria,” Multimesh boss said, insisting that two clauses under Dispute Resolution in contract status have not been exhausted before the latest NCC closure.

In his response via a telephone chat on the raid, the chief executive of HiTV, Mr. Toyin Subair, had told ITRealms Online then that he has one question for Multimesh; “Was there any agreement with us to cover which state?” Arguing that the only relative relationship HiTV has with Multimesh was of Port Harcourt, the Rivers State capital and even at that, it was inconclusive.

As said by Subair, Entertainment Highway believes in doing business the right way, hence, everything being offered to the Nigerian public have been paid for ahead of time. Decrying the attitude of some cable operators in the country who engage a company like Entertainment Highway, for the first time in a location and afterwards went ahead to broadcast it nationwide.

“They never intended to do business the right way,” he decried, explaining further that usually HiTV acquire its rights with three years bank guarantee, but local cable operators would want to pay monthly, which does not mean well for his company.

Attributing this attitude to the problems that have left the industry unprogressive before the coming of HiTV, about 20 months ago. Subair noted that it’s not even right for the economic growth of the country and advised Nigerians and cable operators, mostly, to learn how to do business right.

Also in a telephone conversation with the Director, Public Affairs at the Copyright Commission, Mr. Olisa Obi, confirmed the raid and eventual resolution, saying he read it in the newspapers, because he has been on vacation at that time. He was categorical that NCC, though a government agency do not destroy or demolish people’s equipment in the bid to enforce the law. ”We don’t demolish things, we can dismantle but we don’t demolish or destroy. We can only dismantle equipment and seize them during raids,” he said.

But, following the prompt intervention of NBC, the misunderstanding was put to rest with some clauses and agreement. Details of the resolution reached by NBC led by its Director General, Mr. Yomi Bolarinwa, between Multimesh and owners of HiTV, over rights to rebroadcast EPL signals in the South East and South South, established that a contract had earlier existed between the two organisations since 2007.

Thus giving credibility to the claims by Multimesh that what transpired was a mere business dispute and not a case of piracy. The deal which was signed by both parties read in part, thus in “Pursuant to Section 2 (1) (Q) of the National Broadcasting Commission Act No. 38 of 1992 (as amended), the NBC met with the representatives of Entertainment Highway Ltd and Multimesh Communications Ltd to resolve the dispute on Channel Carriage License Agreement for the broadcast of the EPL matches.

”Also resolved was that the Channel Carriage Agreement signed in 2007 between the parties still subsists; that Multimesh Communications Limited has agreed to pay for Calabar, Port Harcourt and Yenogoa where the premiership matches were being broadcast. Furthermore, Multimesh was directed to send a three (3) months upfront payment in advance and another three on post dated cheques, covering the season which ends in May 2009 to Entertainment Highway Limited. This latest resolution was confirmed via a telephone chat with the chief executive, HiTV, Mr. Toyin Subair.

Before now, a satellite and cable television provider, Metro Digital also based in Port Harcourt and led by Mr. John Nwafor, equally alleged misappropriation of justice by NCC based on HiTV allegations. It denied all piracy charges and even took both the Copyright Commission and HiTV to court. This follows the raid by NCC taskforce of Metro Digital before last June.

Subsequently, Metro Digital, filed lawsuits against the NCC for trespassing and human-rights violations. The cases were before Justice G.K. Olotu of the Federal High Court in Port Harcourt, asking for damages to the tune of US$200,000. Additionally, Metro Digital alleged monopoly case against HiTV, which initiated the complaints against it that led to the raids.

Nwafor, further said the raids were not conducted in line with legal procedures, and that HiTV wield undue influence on NCC toward implementation of its so-called mandate. His claim was that NCC entered their premises by force in Port Harcourt on December 30, 2007, with about 25 armed policemen, purportedly rented from a local police station without a court order or search warrants as required by the Nigeria law.

“They vandalized the facility using knives and pliers to cut transmission lines from transmitters and damaged almost everything that has any value at the broadcast station. They left no information on why they vandalized the facility. They also carried away most of the damaged equipment.”

Nwafor claimed that when Metro Digital tried to recover the equipment from the authorities - Police, the company was not able to make much progress because, alleging “HiTV has already paid them and gave them the instruction not to release our equipment to prevent us from getting back to air to service our subscribers.”

Pointing out that when he personally went to the Police station to recover the property, they – Police – had insisted that he must write a statement before going.
On discovering that Metro Digital purchased a new set of equipment and went back on air, Nwafor stated that NCC “attacked again on the instruction from HiTV,” vandalizing two Metro Digital facilities.

Responding to Metro Digital’s claims, head, legal and regulatory affairs, HiTV, Mr. Charles Ebuebu, said that Metro had been written previously over the piracy of the sporting channel, but all to no avail, before the matter was reported to NCC and the raid soon followed, noting that HiTV had acquired the rights to the English Premier League (EPL) for Nigeria for a three-year period beginning from the 2007/2008 season.

“The signals to the EPL matches meant for the mid-east territory were illegally down-linked by the use of Showtime smart cards purchased in the mid-east and re-transmitted to subscribers in the Port Harcourt, Onitsha and Asaba areas of the country by Metro Digital. Consequently and upon an incessant breach of our rights to the matches by Metro Digital as stated above, a report was made to the NCC,” Ebuebu said, insisting that it was based on further noncompliance by Metro Digital that the antipiracy enforcement raids were carried out by NCC. The raids took place on Dec. 30, 2007, and on May 6. NCC spokesman, Mr. Olisa Obi equally confirmed HiTV’s position.

Above all, one thing seemed consistent with the allegations by the operating companies against NCC, which centers on the legality of its actions, especially on the reported undue influence of HiTV, so also is the monopoly issue. Although ITRealms Online gathered that HiTV boss, Subair and NCC chief executive, have been friends even before the birth of HiTV.

Industry observers, agreed that there is need to draw a line between their relationships, which tasks NCC to limit its activities within the ambit of the law transparently for the growth of the industry in addition to probably setting up probe to ensure that such incident or loophole as witnessed in the case of Multimesh does not re-occur. Whereas, NCC is urged in all tents and purposes to accept to offer an apology to Multimesh, after all, the company was not demanding damages of its equipment, which have been put in millions.

As stakeholders await the outcome of the House Committee on Justice resolution, it is expected that once more, the committee would demonstrate that truly the nation is in democracy by encouraging NCC to offer the apology with caution that every due process must be followed to ensure that such massive error does not repeat itself.

Also imperative here is that public office holders must begin to learn the trade of courtesy, by apologizing when they are at fault, either by themselves or by proxy, since such apology would not reduce NCC or its leadership from what they are presently. Rather, it would portray them as civilized and law abiding agency.

Hence, NCC may be lucky with Multimesh, but definitely not with someone else. It is a fundamental stipulation that enforcement must be based on facts and not mere petitions, thus its advisable to reach out to suspects, even indirectly before eventual clamp down.

As said by one of the observers, if Multimesh had to take the option of court action, NCC cannot survive it, but has to pay for the costly mistake with tax payers’ money.

A word is said to be enough for the wise.

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