Abstract

Enacting the sixth amendment of the Nigerian Broadcasting Corporation Code (NBC Code) in January 2020, Nigerian policymakers arguably had an opportunity for the first time to purposefully grapple with the complex and rigorous interaction between intellectual property rights and competition law. However, they missed this chance. In 2022, the Lagos Judicial Division of the Federal High Court struck down the sixth amendment to the NBC Code, finding that it had been improperly developed through a stakeholder consultation process dominated by copyright-intensive industries, which failed to engage the competition authority, and that the Code was in apparent conflict with the rights conferred under the Copyright Act. Before being struck down, the Code had attracted significant criticism from Nigerian intellectual property scholars and practitioners, primarily due to its inconsistencies with copyright law. By the Court’s ruling, the NBC Code and the copyright issues it generated could rightly be considered dead. However, the lessons learned in ‘how not to apply competition law principles in IP’ and the Euro-American ideology underpinning both IP and competition law remain. Therefore, this paper undertakes a critical and reflective mission by revisiting the copyright issues generated by the defunct code and exploring how a Euro-colonial copyright ideology should be confronted through a purposeful convergence of copyright and competition law in an African country like Nigeria.
The paper considers this mission necessary for several reasons. First, the issues present Nigerian policymakers with an opportunity to creatively and purposefully engage with the complex complementarity of IP and antitrust or competition law in the context of a developing nation. Second, the arguments raised in opposition to the Code, which ultimately led to its demise in court, aptly demonstrate the ideological stronghold of Eurocentric and colonial IP orthodoxy, as well as the recent influence of competition law in Nigeria. Third, global experiences, particularly in Europe and the Americas, demonstrate that IP and competition law issues frequently interact purposefully and progressively, specifically to achieve developmental objectives such as access to cultural and copyrighted content. Therefore, Nigeria and Africa must understand how to navigate this interaction by devising a customised strategy that works for them, rather than dismissing one in favour of the other, and which does not necessarily rely on Euro-American intellectual property or competition law orthodoxy.