COPYRIGHT AND CULTURE RAZZMATAZZ
FOCUS: Gangs of Lagos and Matters Arising
On April 7, 2023, the movie GANGS OF LAGOS was released on Amazon Prime Video.
While the movie has attracted a lot of accolades, it has also attracted several criticisms chief among which is the sentiment against how EYO ADIMU ORISHA – a Lagos masquerade was portrayed in the movie.
Interestingly, the movie acknowledges the spiritual importance of EYO as the protagonist-narrator (Obalola) said in one of his lines that:
“Alaiye London was a chief in Isaale EKO… And so, the EYO masquerades came out to escort his spirit home”.
Expressing displeasure over the movie, Lagos State Government, through the Commissioner for Tourism, Arts and Culture, Uzamat Akinbile-Yussuf, described the movie as cultural misrepresentation. He stated that the ministry, being the regulatory body and custodian of the culture of Lagos State, viewed the film as a mockery of the Heritage of Lagos.
The principal issue I would seek to address in this articleis“Are indigenous people entitled to some form of protection over their culture and tradition and does this supersede individual freedom of expression and thoughts in a movie?”. That question will also make me to briefly address the question: “To what extent, if any, does culture impact eligibility for copyright and all the benefits that follows copyrighted work which includes the right to broadcast and distribute the movie for commercial purposes?”
In answering these questions, it might be helpful to trace the theory of law that applies to COPYRIGHT. There are at least 4 school of thoughts and theories in this regard:
Fairness theory
Personality Theory
Welfare Theory
Cultural Theory
While the first two are “individual centric” in that they focus more on personal independence, freedom, respect, etc. for authors, the latter two focuses on communal benefits. Let me explain a little further.
The fairness theory presupposes that, laws should be made to respect makers of copyright works, respect their works, and compensate them fairly for those works. A proponent of the fairness theory may swing his/her vote either waybecause while there is a need for fairness to the producer of the movie “GANGS OF LAGOS” such that they ought to be awarded proprietary interest or monetary reward commensurate with their proprietary efforts, the idea of fairness and the need to protect spiritual, cultural, and traditional institutions (EYO Masquerade to be precise) may also be brought into play. The question will then be “does the owner of the work have a moral standing to the protection of the scenes that portrayed the EYO Masquerade in a way other than the traditional people may have wanted? And which of the rights is more sacrosanct- individual freedom or communal rights? Let’s get to the second school of thought…
Personality theory emphasises that intellectual property products are an extension of the person of the makers and as such must be accorded similar respect to the authors. In other words, the relationship between authors and their works must be acknowledged. Proponents of this school of thought may have no room for communal rights and values because the idea is highly individualistic and focuses on the need to design laws to respect the psychic bond between creators and their work. If you agree with this school of thought, you are likely to support the rights of the owners of GANGS OF LAGOS all the way!
Welfare theory which is otherwise known as “utilitarianism theory” emphasizes that intellectual property works are for public good, and the government should invest in protecting that institution to encourage innovation and production of intellectual property works in optimal quantity.Proponents of this theory may swing their vote either way too. Some may adopt the need for maximal utilization of the movie GANGS OF LAGOS. However, some may ask, “to what extent?”. The same government has a duty to uphold the cultural values and norms which therefore puts her in a precarious situation to balance rights and obligations.
Cultural theory is less popular but gradually gaining popularity and may become a mainstay of IP Theory in the long run. It suggests that copyright should be organized to foster a just and sustainable culture. The idea seems to be the opposite of PERSONALITY THEORY, but perhaps not in all ways because its aim at the end of the day is to encourage individual benefits from a collective perspective. This theory would seem to be the key antagonist for GANGS OF LAGOS when the question “does the movie promote traditional knowledge?” is asked. Here is where I would love to delve into certain key conventions that foster the cultural theory of IP Protection. Let us consider three:
- UNESCO Convention on the safeguarding of intangible cultural heritage, and
- United Nation’s Declaration of the rights of indigenous people (DRIP)
- The Copyright Act 2023
Let me say straight up that Nigeria is a signatory to both international documents cited above. We can therefore say that she is bound to respect the spirit and letters of the documents.
The UNESCO Convention is an international treaty adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2003. It aims to safeguard and promote the diversity of cultural expressions and practices, including oral traditions, performing arts, social practices, rituals, festive events, knowledge, and skills.
EYO MASQUERADE may be considered as an intangible cultural heritage under the convention. Article 2 of the Convention defines intangible cultural heritage as:
“The practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage…”
The convention generally emphasises the importance of respecting the intangible cultural heritage of communities and prohibits any form of use that would be incompatible with the respect due to the cultural heritage concerned and to the communities, groups or individuals concerned.
The challenge with relying on the UNESCO Convention will come from the fact that the convention is more of a prescriptive mechanism and applies to State parties with little or no realistic individual obligations. To that extent, aggrieved individuals and communities may not be able to enforce a direct sanction against the producer of the movie- GANGS OF LAGOS. Except off course, they want to channel their grievances against the government as an institution.
Conversely, the United Nation’s Declaration of the rights of indigenous people (DRIP) seems to offer a more realistic measure to encourage respect for culture and tradition in the situation with the movie under reference.
While DRIP is primarily directed towards the government (otherwise known as “State party”) to respect the rights of indigenous people (which includes their cultural heritage – EYO MASQUERADE being one of them), it extends obligations to private individuals to do the same. That would therefore mean that the producer of GANGS OF LAGOS owe the people of Lagos the duty to NOT distort the identity of EYO MASQUERADE which is an important aspect of their traditional knowledge and cultural heritage.
Like the UNESCO Convention, the Federal Government may be held accountable to its obligations under DRIPS. In addition, the traditional communities affected by the disrespectful portrayal of their cultural heritage in the movie could invoke their rights under the Declaration and seek remedies such as recognition, protection, and redress for any harm caused by the portrayal of their cultural heritage in the movie.
Thinking the topic from applicable local law, PART IX of the Copyright Act 2023 may be helpful. That part protects the expression of folklore. “folklore” is defined as a group-oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values”.
Section 74. protects the expression of folklore against:
(a) reproduction ;
(b) communication to the public by performance, broadcasting, distribution by cable or other means ; and
(c) adaptations, translations and other transformations, when such expressions are made either for commercial purpose or outside their traditional or customary context.
As may be gleaned from section 75 and 76 of the Copyright Act, the illicit use of an expression of folklore may expose a person to both civil and criminal penalties.
Section 75 provides that:
“Any person who, without the consent of the Commission, uses an expression of folklore in a manner not permitted by section 73 of this Act, is in breach of statutory duty and is liable to the Commission in damages, injunctions and any other remedies as the court may deem fit to award in the circumstance.”
Section 76(1) (c) also provides:
Any person who intentionally or for commercial purpose –—
(c) distorts an expression of folklore in a manner prejudicial to the honour, dignity or cultural interests of the community in which it originates, commits an offence under this Act.
A joint interpretation of the three laws that have been analysed may suggest that the best bet of any aggrieved indigene of Isale Eko may be to compel the Federal Government through the Nigerian Copyright Commission to perform its obligations under the UNESCO Convention and the UN Declaration (DRIPS) and enforce section 75 and 76 of the Copyright Act against the producer of the movie – GANGS OF LAGOS.
However, can it be a defence that the central theme of GANGS OF LAGOS has nothing to do with EYO ADIMU ORISHA even though the masquerade was used in a manner considered to be unacceptable by its subjects? Copyright has little or nothing to do with morality, so the scenes may be challenged but perhaps, not the entire work. This, for me is a conversation for another time.
More than anything else, I think the biggest lesson from GANGS OF LAGOS and the public outcry against how EYO MASQUERADE was portrayed, is the need for script writers and producers to always seek the informed consent and guidance of concerned communities when a cultural figure is to be projected on a movie set. The conversation does not have to involve financial gains as such communities and their culture are also brought to limelight when the movie does well in the market, and it creates room for tourism. This way, cultural heritages can be preserved, and individual interests can also be protected. This for me, is the biggest take away to keep at heart.
EYITAYO OGUNYEMI
Partner, LAW ACCENT
