Happy New Week! I wrote an article titled “Part I – Who Owns Nollywood? IROKO Partners or Afrinolly – Illegal Restraint on Trade? Dubious License Agreements? Let’s Talk About It!” I am yet to discuss Part II. First, I have just been quite busy and the article requires breaking down legal concepts in a simple form. This means I need time that I simply do not have right now. However, I hope to make the time soon. Nevertheless, I find this recent comment to the aforementioned post interesting and thought to share in a post of its own, especially since it is rather extensive. Read on . . .
“I believe Mr. Iroko Partners (Iroko) pretends not to understand what “digital distribution” stands for. In the USA, any media retailer or a general merchant who has a license to distribute physical DVDs or CDs can venture into digital distribution. A perfect example is Amazon. One can have a physical DVD mailed; or downloaded in a digitized form; or streamed on demand. What if Amazon wants to market Nollywood movies and add some titles to its catalog? Will Iroko show up brandishing a lawsuit prohibiting the world retailer from selling Nollywood’s digitized music or force Amazon back to the stone-age to sell Nollywood VHS tapes? And if he starts streaming: “You can’t touch this” just like MC Hammer, he may end up following him to the bottom of the food chain.
In addition, people purchase licenses to sell stuff and not to give things away for free. Iroko took those valuable Nollywood licences and handed them over to YouTube in trade with cheap bandwidth for uploading full length movies to be watched for free; and then collect whatever 50/50 crumbs Google Adsense want to throw his way to be split 60/40 with copyright holders every so often. Last time I checked, distributers set their terms and prices in order to enjoy instant gratification after a real sale, instead of relying on dubious ad revenue from corporate leftovers. In essence, Iroko is not a real digital distributor on YouTube like Sony Music who owns its content outright, but an “aggregator” who collects content by whatever means and then delivers it to a distributor, in this case YouTube, in exchange for Ad revenue.
Hence, the only difference between Iroko and other YouTube users is the alleged permission to upload Nollywood content. I say “alleged” because some Ghanaian movies were deleted from YouTube only to re-appear as Nigerian movies under the Iroko brand, but that rant is for another day. However, what most YouTube users and Iroko have in common is the lack of copyright ownership (no production infrastructure), which usually protects original creators and investors (e.g. record labels). Whatever license Iroko got was permission to exploit the content after the date of sale, but he unjustly went on a YouTube deleting spree calling all Nollywood fans that uploaded content from 2005-2011 filthy pirates. Yet YouTube already took care of that problem where anyone can ID their content and monetize it without a middleman shark who chops 40%. Iroko even deleted short movie trailers which are usually protected under the US fair-use doctrine as non-infringing (YouTube jurisdiction).
I personally know a YouTube promo lady with a $100,000/year US grant; who has a channel with 265,000,000 views and over 300 artists from all over Africa, most likely more than any African partner.( http://www.youtube.com/user/idamawatu ). She acquired permission to upload P-Square’s “Do Me” from Orchard Music that went on to amass almost 4,000,000 views, but Iroko intimidated her with his “exclusive” copyright claim and she had to delete the video. Then Iroko uploaded his version that has only clocked 500,000 to date, ( http://www.youtube.com/watch?v=iCBbeUjAKLU ). But why didn’t he delete P-Square’s “Do Me” VEVO version with over 8,000,000 views? ( http://www.youtube.com/watch?v=_3mHMWO_-mM ). It says right there on the page (C) 2008 Sugakane Enterprise and not Iroko! The lady brought this fact to YouTube’s attention and she was authorized to re-upload the video ( http://www.youtube.com/watch?v=wmlXT18kmJs ) stressing the point that digital distribution deals do not amount to copyright ownership.
Even though Mr. Bully-man Iroko thought that he had moped out all the YouTube profits into his moneybag, he missed a spot called mobile devices. Unfortunately these platforms used not to serve Google ads appetizers before Nollywood feature films, so “free” Naija movies really means free, thus no money for Iroko and/or Nollywood. That’s when Afrinolly came in and developed an App to aggregate content that was already online under the http web-form to mobile links, with the blessing of owners of various operating systems (i.e. Samsung, Blackberry or Nokia). Afrinolly’s defense is clear since they do not store Nollywood content anywhere in its servers in a downloadable form. All they do is facilitating access to Iroko web content on mobile platforms. And as long as Afrinolly continues to raise the ratio of mobile views vs. pc views, there will be less and less cash to be had as ad revenue until YouTube optimizes its system to roll Google ads on handheld devices.
Iroko should just admit his Nollywood venture was not well thought out. Instead of brandishing lawsuits, he needs to study the complexities of the Internet ecosystem. Buying a Nollywood license is a pre-emptive defense to protect Iroko from online copyright infringement claims and not a law enforcement badge to police the Internet against piracy. Plus endowing YouTube with free Nollywood licenses as a gift that kept on giving to Afrinolly was a big mistake. As a third party agent of Nollywood, Iroko can only sue Afrinolly for tortious interference with business contracts. Copyright infringement claims can only be brought by Nollywood creators with attesting a copy of their registration and/or the exclusive license issued to Iroko. It would have been different if Iroko had used the licenses wisely to reissue the content in a tangible medium such as Blu-Ray or DVDs and then register the products with the Copyright office under his name.
Thank you Miss Lady Lawyer for this blog, it helps to combat a dangerous disorder that keeps on killing Africa, the lack of basic legal sophistication. And Mr. Iroko Partners, just like money can’t buy you love, it cannot buy you copyright ownership to content that you did not create. If it was that easy, what would stop billionaires like Bill Gates from throwing tons of money on Hollywood and then dictate dubious distribution terms that reek of unjust enrichment? Most American content owners value their YouTube fans in that they did not delete or block user content that was uploaded without permission, but slapped Google ads on them while collecting revenue for their artists. You only pulled that stunt of deleting Nollywood and Naija music content to secure your 60/40 split, otherwise user uploaded content would have been generating 100% revenue for artists and leave you out in the cold.” -Acht Neuf