Pornography in Nigeria: The Good, The Bad, The IP
Pornography as a topic in academic and youthful circles is nothing short of delicate and complicated. It is becoming an integral part of 21st century popular culture and carving for itself some reputation as a foremost driver of internet use. Not surprisingly, the average age of male first exposure to pornography is 11. Pornography is pervasive and its potentials for commercialization are massive. A 2018 article by business news website, Quartz, pegs the annual value of the pornographic industry between $6 billion and $15 billion, without ignoring the possibility that it may be far higher, inching close to a hundred billion dollars. Logically speaking, we ought not to kill the goose that lays the golden egg, ought we?
The debate surrounding pornographic materials may as well be examined from this point forward. Pornography has been squeezed to fit into the provisions of Section 233D of the Nigerian Criminal Code which prohibits the publication of obscene materials; an offence which is punishable by a maximum of 3 years imprisonment. However, that provision is generally a scam. In reality, Pornography ranks alongside bigamy and prostitution as pseudo crimes in Nigeria. These crimes enjoy recognition in the law books but social orientation prevents prosecution. Crimes like this gain cheap and common acceptance and overtime attain conscious legality. There is no perfect example than The Obscene Publications Act 1959 of England which was revised by the Crown Prosecution Service in 2019. The effect of the 60 year period between the original act and the amendment is to exempt criminal prosecution for pornographic publications that are consensual, causing no harm or fueling violence/criminality and was not likely to be reach an audience below 18 years of age. It is quite noteworthy however, that several laws prohibit child pornography and the enforcement rates are generally higher.
Moving forward, a recurrent query on pornographic materials has been the position of intellectual property laws on them. Put quite explicitly, intellectual property law is in a confused state over the protection of the rights embedded in pornographic works. Works in video, print and picture format are automatically eligible for copyright protection by virtue of the principle of fixation. Fixation simply refers to work produced in a tangible means of expression; written and audio recorded works are fixed, for example. For convenience purposes, the current conception of pornography is not the sexual activity but the fixation of such act into a tangible medium of expression – the form and not the content; notwithstanding that the content influences the form.
Haber in his article on The Copyrightability of Illegal Works as published in the Yale Journal of Law and Technology revealed that pornography and all other works that are characterized by originality are eligible for copyrights. This rule applies as long as they are fixed, that is, expressed. This is as a result of the fact that in some Berne jurisdictions (countries where copyright applies upon fixation like Nigeria), copyright laws do not explicitly prohibit the protection of works merely on the grounds of the illegality or morality of the content of such works. Haber further adds that makers of such works can in fact sue for copyright infringement.
Experience has however proven that the absence of an explicit provision preventing copyright protections for outlawed content is not conclusive authority that the courts will always recognize copyright protection. In his study on Copyrights and Graffiti in the UK, Bonadio remarked that the courts have over the years rejected copyright claims for illegal materials on the grounds of public policy and the “unclean hands of doctrine”, as expressed in the Latin term ex turpi causa non oritur actio. Ignoring the legal jargon, what this means is that no one can bring a valid claim in court if such claim originates from an invalid or illegal cause. Fair enough!
In the case of Glyn v. Weston Feature Film Co., the court according to Younger J. said the law was clear that “copyright cannot exist in a work of a tendency so grossly immoral.” In the case, the court did not grant a remedy for copyright infringement to the plaintiff, Elinor Glyn, for her erotic novel, Three Weeks. Scholars have suggested that copyright does indeed exist for such works but they only cannot be enforced when infringed. As an aside, the British courts have recently justified their position by relying on Section 171(3) of the Copyrights, Designs and Patents Act which states that the protection of copyrights can be prevented by any rule [of law] which restricts the enforcement of copyright, on grounds of public interest or otherwise.
There is no similar provision to that of the CDPA under the Nigerian Copyright Act even though such exists under the Patents and Designs Act. However, since pornography in this context has nothing to do with patents and inventions, it is to be taken that there is no express law preventing the copyrightability of pornography in this part of the universe. Nevertheless, under the unclean hands doctrine referred to earlier, creators of these works cannot validly enforce the copyright protection in Nigerian courts. In response to whether the lack of judicial protection will occasion economic loss, the answer is in the affirmative. To remedy this, modern video pornography creators have resorted to streaming to mitigate losses. Commercialization is thus achieved through paid subscriptions, ad revenue and, for premium sites that have a customer base ready to damn the incognito mode, downstream revenue works too.
To wrap this up, pornography and related matters are shrouded in much hypocrisy. In developed countries, pornography is considered illegal or immoral or unfit for intellectual property protection but the government smiles to the bank consequent upon the imposition of heavy taxes on the content, living off people’s addiction. It is recommended that clearer laws be made on the subject matter, both on the issue of its criminality as well as copyright protection issues. The government should also look to tackle piracy generally and introduce strong regulatory systems if it intends to build a sane and creative society, with or without pornography.
Author: Olamilekan Adebanjo