May 27, (THEWILL) – The Federal High Court, sitting in Lagos, has declared as illegal the 6th edition of the National Broadcasting Code, issued by the National Broadcasting Commission (NBC).
In reaching his decision, Justice Ambrose Lewis-Allagoa said the proposed amendments 6th Edition of the National Broadcasting Code are ultra vires, incompetent, null and void.
The Court which perpetually restrained the NBC from implementing the document, declared that the NBC does not have the power to prohibit exclusivity on and compel sub-licencing of privately acquired rights to television content, as such is against the constitution and the copyright act.
The ruling, followed a suit filed by a Lagos-based journalist and movie producer, Femi Davies.
Davies had approached the court contending among others, that the amendment sought by the NBC to the 6th edition of the Code violates his rights to own intellectual property and exercise exclusive rights on such.
He also contended that the amendment, if allowed, will negatively impact business and the development of the country, as it disincentivises investment and discourages hard work.
On its part, the NBC had argued that the amendment to the 6th broadcasting Code was done to protect local operators, promote creativity and maximise local content via the anti-trust provisions contained in the amendment.
The Commission also claimed that the amendment to the Code was aimed at stimulating growth in the broadcasting industry by attracting foreign investment.
But Davies argued, among other things, that if allowed, the amendment would greatly violate his right to a fair hearing and asked the court to uphold his six reliefs as set out in his originating summons.
The reliefs include, “a declaration that the NBC lacks the requisite vires to prohibit exclusivity on privately acquired intellectual property right in program content of a right-holder vis-a-vis the salient provisions of the constitution and the Copyright Act.
“A declaration that the commission acted ultra-vires in so far as it sought to regulate the practice of advertising in Nigeria contrary to the provisions of the extant Advertising Practitioners (Registration, etc) Act, 2004.
“A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant rights acquired under existing licence under the proposed amendment to the 6th Edition of the NBC Code.
“A declaration that the commission acted ultra vires when it sought to retroactively compel right holders of programme content to compulsorily share extant rights acquired through a partnership and /or joint venture with an investor under the proposed Amendment to NBC Code.
“An order setting aside the amendment of the NBC Code and an order of perpetual injunction restraining the NBC from implementing the Amendment to the NBC Code.”
In his judgement, Justice Lewis-Allagoa held, “I agree with the submission that acquisition of exclusive rights to Broadcast a particular program is an investment for returns and by virtue of the above-stated provisions, no one should be forced to surrender the same when it is lawfully acquired.
“I am in agreement with the plaintiff counsel that the said proposed amendment is a violation of the principle of fair hearing and natural justice.
“The proposed amendment purports that the defendant, NBC shall without any fact-finding or recourse to the other party place the advertising agency on its black list, solely based on the complaint of a media house to the defendant and the defendant acting has the authority to itself shall pass its verdict without hearing the other parties.”
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