The question of whether the provisions of the Act can be extended to cover VOD services is one that has been the subject of debate in legal spaces. The unassailable fact is that in order for VOD services to come within the ambit of this law, which evidently failed to anticipate a digital future for video consumption, the provisions must be given a very broad interpretation. The Act defines Distributor as “a person for the time being engaged in the business of leasing, hiring or selling films, video works9”. Since VOD service providers (Transactional, Catch-up TV, Subscription models, near video on demand, Push video on demand, Advertising video on demand) all provide video content to the consumers, they arguably fall within the scope of distributor as envisaged by the Act. The Act further defines Video works as “any series of visual image (with or without sound) (a) produced electronically by the use of information contained on any disc or magnetic tape; and (b) shown as a moving picture10”. Film is also defined to include “any record, however made, of a sequence of visual images, which is a record capable of being used as a means of showing that sequence as a moving picture11”. Looking at the array of definitions given above, it is reasonable to conclude that VOD service providers are, for the purposes of the Act, distributors.
The Act states that, “no person shall carry on the business of distributing or exhibiting a film or video work, unless he is a holder of a license granted by the Board under this Act12”. For VOD service providers incorporated in Nigeria, there is hardly a question of application. The challenge however, relates to VOD service providers outside Nigeria whose VOD services/contents are consumed in Nigeria, i.e. Netflix, YouTube, Vclip etc.
This is a vacuum in the law and as such, some may argue that the Board has no regulatory control over them as the Act/regulation did not anticipate such trans-jurisdictional distribution via online platform. The implication is that, where such VOD service provider has no subsidiary or a liaison office in Nigeria, enforcement of the Act is difficult if not impossible; the content offered on those platforms will not be subject to any form of control by the Board, probably because of infrastructural deficit or the impracticality of such regulatory regime. Hence the need for a system/ policy framework that will achieve the board’s mandate and accommodate the VOD service provider user experience needs.
Culled from: www.aandelaw.com, REGULATION AND INVESTMENT REVIEW