Court Nullifies 6th NBC Code

The Federal High Court sitting in Lagos, on Thursday, 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 and perpetually restrained the NBC from implementing document.

The court equally declared that the NBC does not have the power to prohibit exclusivity on and compel sub-licensing of privately acquired rights to tele­vision content as such is against the constitution and the copy­right act.

The ruling was in a suit filed by a Lagos-based journalist and movie producer, Mr. Femi Davies, who had approached the court contending among other things 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.

Davies also contended that the amendment, if allowed, will negatively impact business and the development of the country, as it disincentivizes investment and discourages hard work.

On its part, the NBC had sub­mitted that the amendment to the 6th broadcasting Code was done to protect local operators, promote creativity and maximize 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 viz-a-viz 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 judgment, 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.”