For a nation which ostensibly claims to be seeking increased local and foreign investment in its underperforming broadcast industry, the amended Nigeria Broadcasting Code (6th edition) appears to have attracted more hostility than affection.
Released in January this year, and amended in June, the code seeks to ensure that more indigenous broadcast firms are able to participate fully in the industry.
It also aims at eliminating anti-competitive and monopolistic practices. To this end, it will regulate exclusivity, mandate sub-licensing and control the prices at which creators sell their content.
This means that all Pay TV, video-on-demand and other distribution platforms no longer possess exclusive rights to any content and must sub-license their rights for any programme to other broadcasters at a cost to be regulated by the National Broadcasting Commission (NBC). Refusal to do so will result in fines of up to N10 million.
Unsurprisingly, this has resulted in great disquiet. The code’s defenders say it will end price-gouging and other forms of exploitation by broadcast companies and will expand access to desirable content to the benefit of more Nigerians.
In addition, it will allow indigenous firms to gain a foothold in the more profitable parts of the business, especially premium sports content.
Those who oppose it say that it punishes innovation and investment by making it impossible for the producers and rights-owners of desirable content to benefit from what is legally theirs.
Far from encouraging investment, they believe the new code would actually discourage it by removing incentives for broadcasters to invest in the development of new content.
The simmering controversy over the code demonstrates that the NBC did not fully engage other sectors to the extent that it ought to have.
Many stakeholders say that they were not properly consulted on the proposed changes and claim that the amendments made by the commission did not take their concerns into consideration.
There is also the fact that the code seems to be more interested in reining-in certain broadcast platforms rather than ensuring the growth of the industry as a whole.
Beyond a few bland statements, there is very little in the code about tax holidays, low-interest loans, protection from piracy and similar forms of encouragement that could facilitate operations in one of Africa’s more difficult business environments.
Under the new code, broadcasters are required to acquire Prime Local Sports Content worth 30 per cent of the value of any Prime Foreign Sports Content they acquire.
Advertisements within premium sports broadcasts cannot be aired unless the broadcaster does the same for local sports programmes.
Thus, having paid large sums, often in foreign currency, to secure premium sports programmes, broadcasters must be prepared to sub-license them at prices they have little control over, and still make mandatory investments in local programming.
To further complicate matters, it has been argued that the non-exclusivity provisions of the code violate the 2004 Copyright Act which is said to grant content producers full control of what they produce.
Altering them would require intervention of the National Assembly, a measure the NBC apparently failed to take into consideration even as it insists that it consulted widely.
In not doing enough to seek sufficient consensus, in imposing increased burdens without making genuine efforts to reduce them, and in appearing to target particular broadcast companies, the amended Nigeria Broadcasting Code has failed to reflect the democratic ethos in which it was supposedly conceived.
How many public sittings did it hold? Where did it explicitly address the most pressing concerns of broadcasters before the code was released? Why does the code contain so many sticks and so few carrots?
If it is truly determined to ensure sustainable growth in the broadcast industry, the NBC will have to take another look at the broadcasting code.
Setting up a review panel comprising representatives of all stakeholders might help to calm frayed nerves and restore the confidence and trust that are vital to real progress.