Cable and Signal Piracy – Illegal Distribution of Pay TV Signals

Nooktoria Copyright Law Volume 2 Number 3

eDigest

(Cable and Signal Piracy – Illegal Distribution of Pay TV Signals)

From a Subscriber to a Distributor

Over the last few years, Pay TV providers in Nigeria – including Multichoice Nigeria, have had to contend with some consumers purchasing their decoders and Smart Cards for the purpose of rebroadcasting channels and programs commercially. These types of shortcomings especially in view of unanticipated technological developments. They take comfort in the fact that they may not get caught or prosecuted for illegal distribution of broadcast signals or the penalty they may receive for broadcast piracy is insignificant to their profit margin.

It is certainly true that changes need to be made to the Copyright Act in Nigeria for the advancement of the rights of copyright holders but obtaining subscription and equipment from a TV provider that allows you to view programs as a consumer does not grant you the right to rebroadcast commercially. Courts in Nigeria have relied on the provisions of Sections 36(d) and 44 (previously Section 20 under the old Act) of the Copyright Act, Laws of the Federation of Nigeria, 2022, to punish persons found guilty of illegal distribution of broadcast signals..

44. Criminal Liability

(1) Any person who-

(c) has in his possession, any plate, master tape, machine, equipment, device or contrivance for the purposes of making any infringing copy of any such work, commits an offence and is liable on conviction to a fine of at least ₦10,000 for every copy dealt with in contravention of this section or imprisonment for a term of at least five years or both.

A typical rebroadcasting scenario involves a consumer legally purchasing a Smart Card and decoder for single purpose non-commercial use. The consumer subsequently uses the Smart Card and other equipment to illegally transmit programs to others (for a fee) without the consent or authorization of the issuing TV provide. For example, in one case in Akwa Ibom State, Nigeria, the accused had illegally transmitted broadcast signals of Multichoice (DStv) to an estimated 500 houses at the cost of ₦5,000 for installation and a monthly subscription of ₦1,000.

One Day for the Copyright Owner…!

The Nigerian Copyright Commission (NCC), which is the federal agency responsible for copyright matters in Nigeria, has continued to report, arrest, and prosecute persons accused of broadcast piracy.

The Best Defense is a Good Offense?

Persons who are accused of illegal distribution of broadcast signals typically do not go down without a fight. Usually, they will put up some or all of the following arguments:

• Legal Purchase of Equipment: Accused person will argue that their purchase of Smart Cards and other related equipment used in transmitting broadcast signals are legal and as such, it cannot be said that their possession of the equipment is illegal.  In Ubi Bassey Eno v. Nigerian Copyright Commission, a similar argument was put forward before the court. Rejecting the argument, the Court of Appeal, per Jean Omokri J.C.A., stated:

The Appellant contended that they acquired Exhibits B, B1, C and C1 legally, therefore, the Appellant’s possession of the equipment cannot be said to be unlawful. The question here is not the possession of Exhibits B, B1, C and C1 per se by the Appellant. Section 18(1)(c) of the Copyright Act makes it an offence to possess the equipment for the purpose of making infringing copy. In the instant case, Exhibits B, B1, C and C1 were infact used for illegal rebroadcasting, which is a reproduction of a broadcast and since it is illegal, each rebroadcast is an infringing copy.

• Lack of Intent and No Proof Beyond Reasonable Doubt: It is not unusual for person accused of illegal distribution of broadcast signals to rely on the legal requirement for the prosecution to prove beyond reasonable doubt that the purpose for which they were in possession, is to illegally broadcast or transmit programs without the consent and authorization of the copyright holder.
• No Exclusive Right over Channels/No Copyright in the Material Distributed: Some accused persons will challenge the Pay TV providers’ right to withhold permission by arguing that the providers do not have the exclusive right over the channels/programs used in the rebroadcasting.
• Test Transmission and Negotiations Before Final Agreements: In the Ubi Bassey Eno Case, it was argued that there was an on going negotiation between one of the accused parties and the plaintiff (TV provider) to enable the latter acquire rights or a license to broadcast the plaintiff’s programs and as such, what was done was not an illegal distribution but merely a test transmission before final agreements were reached. The court rejected this defense and line of argument stating:

The main plank of the Appellant’s defence is that they were test transmitting Multichoice signals before concluding the offer of Multichoice. The simple question is who gave the Appellant and his company licence to test transmit Multichoice signals? Nobody. Was the test transmission done with the knowledge, consent or authorization of Multichoice?  The answer is No. It is important to note that the Appellant at page 31 said that: ‘The equipment were duly installed by Multichoice agents… We were only test transmitting the channels before taking the offer made to us by Multichoice…it is ridiculous for the Appellant to say that he was test- transmitting for a whole year and more….Per Jean Omokri J.C.A

• Challenge the Technology used to prove transmission: Finally, accused persons will challenge the technology used to show that the signal from the Pay TV provider has been broadcast by them. The burden will be on the Pay TV provider to provide evidence to show that their rights have been infringed by a consumer who without consent became a distributor.

How the Law on Cable and Signal Piracy Has Changed

The punishment under the new Section 44 (1) (c) of Copyright Act of 2022 is significantly more severe and mandatory than under the old Section 20 (1)(c) of the Copyright Act of 2004.. Below is a breakdown of some of the key changes:

Old Law:

• Fine: Maximum of ₦1,000 per infringing copy.
• Imprisonment: Maximum of 5 years.
• Discretionary: Court could impose either a fine, imprisonment, or both.

New Law:

• Fine: Minimum of ₦10,000 per infringing copy.
• Imprisonment: Minimum of 5 years.
• Mandatory: Court must impose at least the minimum fine or term, or both.

Final Thoughts on Cable and Signal Piracy

As shown above, what may begin as the seemingly harmless use of legally purchased equipment can quickly turn into illegal activity when content is rebroadcast without proper authorization. One of the major concerns based on the previous law, which in may ways is still relevant today, is that the penalties for such infringements are too lenient. With that said, the Copyright Act of 2022 does introduce significantly tougher penalties, and the NCC continues to educate the public and actively enforce these rights.

This article was originally published on January 20, 2014.