Artificial Intelligence (AI), a concept that started being developed post-second world war, and is based
on tranforming computing devices into smart machines, such that they become intelligent enough to
perform natural human tasks, such as mathematical calculations, data processing, etc. AI technologies
rely on the processing and computing capabilities of computing devices to learn and process data
patterns and solve problems at a much faster rate than humans.
Therefore, because of this AI capabilities, its aggressively being used to mimic human intelligence,
hence, the name artificial intelligence. Its artificial because they are human creation, based on
computer logics and algorithms developed by humans. The sophistication and capabilities of a
particular AI depends on the sophistication and capabilities of its developers. Based on AI’s
capabilities to process large volume of data, it’s being used to process and analyse data, and “solve”
problems. I personal believe AI is another tool in the hands of man to help him do his tasks faster. It’s
still the task of humans. I will talk more about this in my subsequent write ups.
The issue am raising here is AI’s capabilities and implications for intellectual property. AI relies
heavily on data provided to it; it does not have its own proprietarily generated data. It relies
on the internet to process and analyse data. Think of Search engine 3.0 (or any level you want
to call it). Based on the algorithm provided by its developers, its able to process available data
and be able to deliver output (results) to the users. The danger here is the use of copyrighted
or uncopyrighted materials available on the internet. Remember, AI is about learning and
adapting data patterns in its analysis and output. Based on historical data patterns, AI is able
to analyse provided data, and deliver the output-be it data projections, or research paper.
AI technologies are furiously disrupting all industries, most especially the entertainment
industry. Now you can shoot a movie using AI characters, or even using AI to develop the
scripts. Some are even using AI to generate popular actors’ voices and personae to make
movies, and the audience, ignorant of this development, are loving it. AI is also used to
illegally generate images/photos for people to use, a recent case between Getty and Stability,
where Stability’s developed Stable Diffusion AI image generation system is used to access
photos, part of whom are photos owned by Getty photos.
Another incidence of copyright violation is the one involving the mimicking of songs and
videos of popular artists, as referenced in the action of Universal Music Group (UMG) pulling
down AI song featuring fake Drake and Weeknd vocals from YouTube, Spotify, TikTok, Tidal
and Apple. AI could be a tool for research, just like other search engine tools, but must be a tool
that must be referenced, and not a complete copying tool, which is plagiarism. For example,
how do you reference ChatGPT in a research work? Most especially, considering that
ChatGPT does not own the material provided, these are curated content of some other people,
writers and publishers who have taken the pain to develop these content, and are not being
compensated for their works.
The quick defences normally raised by AI developers are fair use, transformative use, and de
minimus, which are baseless in the light of public interest and violation of the rights of the
copyright holders under the law. These are interesting times. Intellectual property is really
under siege from AI developers, and its time for creators be aware of these developments, and
ensure the protection of their original works. They must work with their legal teams to be on
the lookout for any infringement through the illegal usage of these works by AI generated
tools.

AI and IP Protection

Intellectual Property (IP) drives the creative industry. It’s an industry that is not based on tangible
products, but intangible products, and thus must have a well-crafted and deployed IP protection
strategies. Because the products are intangible, it becomes difficult at times to offer protections for
these creatives, and thus, they are extremely prone to theft and copying.
The reason for discussing this topic now, is the increased complaints around concept theft or copyright
violations, most especially with the emergence of AIs. Currently, there is a trending movie on one of
the leading global streaming service that a friend reported to me that it was his concept that was
developed into the movie that was eventually acquired as an original. This person alleged that he
discussed the concept with a friend, who eventually passed it on to the producers and directors of the
movie. I asked if he had any correspondence on paper or recorded voice conversations, or any form of
evidence that could collaborate his claim. There was none! He claimed everything took place over the
phone, and he was dam sure, because the movie has a sequel. However, after meeting with the
person he discussed the concept with, she simply denied passing on the concept to the
producer/director. These are common issues we face in the black creative space.
The protection of IP cannot be over or under emphasized. The essence of IP protection is to guard
against unauthorised use of our ideas, expressions, or even inventions, which could even prevent the
owner from maximizing benefit from his/her creation. Therefore, we must take very seriously the
concept of IP protection.
Let’s do a brief breakdown of IP protections available, namely:
1. __Copyright__: IP protection through copyright is largely applicable to the creative
(entertainment) industry, because it’s all about protection of creative expressions against
copy-cats. It covers music, writings, publications, books, screenplay, software/technology, etc.
It does not cover ideas/inventions, which is covered by patent law. It’s the protection of
original literary, artistic, or creative works, and grants the original copyright holder the
exclusive right to reproduce, distribute, perform, and display his/her work. This copyright
protection is obtained by registering your creative original works with the Copyright Office, in
some cases you could still get copyright protection without formal registration. This protects
your IP against theft or illegal duplication or performance. If the gentleman alleging the theft
of his movie concept above had registered his creation, or even document his conversation
with this lady, he would have had some claim against the streaming service and all the culprits.
In fact, unpublished works have one of the strongest protection under copyright law.

2. __Trademark__: Trademark (TM) is the protection of your brand names, logos, slogans, and other
marks that easily or readily identify your company or brand. The essence is to offer protection
for your brand, thus preventing identity theft or illegal use of your brand or duplications of
your products, thereby creating confusion in the marketplace, and/or giving your brand “bad
name”. It also helps prevent unfair competition, when some companies or persons want to
reap from where they have not sown. There are two forms of protection in TM, direct
registration of your name/mark with your country’s regulatory authorities, e.g. USPTO, CIPC in
South Africa, etc. the other form of protection is derived from the common law, which arises
from the general awareness of your brand, and its uniqueness. Thus, even if Coke is not
formally registered in any country, it’s a well-known brand that enjoys protection under
common law, and no one can just use it without authorization. TM protection is different from
copyright protection. Whilst copyright protects the content (artistic creative) of a magazine,
newspaper, journal, music, or movie, TM protects the name (title) of that magazine,
newspaper, journal, or musician. For example, in 2008, I had a nasty experience that I had to
overcome, which was years before I went to law school in South Africa. Weeks after I started a
lifestyle weekly newspaper titled “JoziWeekly” in South Africa, another gentleman launched
his publication with the same title. I had earlier registered my publication with the National
Library of South Africa, thinking that I was protected. It was until this guy launched his version
of “JoziWeekly” that I realized I did not have any protection against another publication with
the same name. However, only the specific content of my publication that was protected.
What saved my publication was the common law position of the first to be known in that
market, combined with my earlier filing at the CIPC, the body responsible for IP registration in
South Africa, before this guy filed his TM application. If you need more advice on this, please
reach out.

3. __Patent__: Patent protects original ideas/inventions against illegal use and duplications. Ideas or
inventions, though unique and novel, are different from artistic expressions protected by
copyright law. Patent’s protection provides the exclusive rights to your invention for a certain
period of time, allowing you to prevent others from making, using, or selling it without your
permission. Once you can establish a claim over an invention, it’s time to immediately patent
the idea by filing a patent application, with full description of the invention, teaching how to
make or use the invention, and defining the scope of the patent protection. This protects your
novel idea from illegal production, use, and sales for about twenty (20) years.

4. __Trade Secrets__: Whilst patents protects a novel idea a through registration process, which
includes the public disclosure of the inventive properties, trade secrets are protected by its
secret nature. Every viable information, mixtures, inventions, formulas, processes, key
strategies can be protected against misappropriation. This protection can last forever, whilst
patent protection is only for 20 years. The most commonly known trade secret today is Coca-
Cola. This Coca-Cola mixture is protected by trade secret, has lasted for decades. If it was
patented, it would not have lasted for that long, and we would have had another drink with
the same taste as Coca-Cola by now. However, whilst patent protects against reverse
engineering, trade secrets does not. Therefore, a Company must critically weigh the options
before decide which way to protect its invention considering several factors unique to it and
its invention. Speak to your lawyer!
Quick observation in my Coca-Cola, which is protected by trade secret. However, the coke brand is
protected by TM, and even copyright in some cases. We now see how the various elements of IP can
be deployed to protect your company, brand and idea.

__How do you protect your IPs?__
Protecting your IP starts from the moment you conceived that IP. This is possible when black creators
are conscious that their creation is precious and must be guided jealously. This consciousness places
an obligation on us as black creators to protect what we are birthing, with the ultimate objective of
benefiting ourselves primarily from our creatives, and humanity as a whole.
With consciousness comes with association. Surround yourself with professionals that can help give
birth to the IP. This starts with a lawyer, who will advise you on steps to take to protect your IP. DO
NOT GO AND SPEAK TO YOUR COLLEAGUES ABOUT YOUR IDEA BEFORE SPEAKING TO A LAWYER. Its
too dangerous. Ensure you start taking the right steps in IP protection from moment you receive the
concept, and you are convinced about it. You must spend time in putting together the concept in your
mind, notes and proper documentation, and then approach a lawyer, not even a “mentor”, or a friend.
I have heard of “mentors” stealing their mentee’s concepts.
Once you have effectively protected your IP, then you could circumspectly start putting your team
together. Ensure you document every engagement you have with your team or anyone about your
project. Documentation could include voice recordings, email correspondence, etc. Sign contracts,
NDAs, etc., and not just give away your IP without adequately ensuring that you have protection,
otherwise, your God given IP is gone!!!

PROTECTING YOUR IP

__Distribution__ generally speaks of how the finished product and services move from the
manufacturers or creators to the end user. Without distribution, there is no way the end user
would access that finished goods and services. Thus, distribution is integral to commerce and
business.

Applying this concept of distribution to the creative industries, we can confidently say, without distribution, the finished works of movies, series, documentaries cannot get to the end users, the audiences for which the creative content was made. Therefore, when discussing distribution, we need to identify the channels of distribution, the pathways or linkages that creative works get to their audiences. There are direct and indirect channels. Direct channels are made up of self-publishing channels like YouTube, and direct licensing to streaming platforms like Netflix by the producers of the production. The indirect channels involve of distributors and content aggregators, brokering the deal on behalf producers.

As a result of the disappointing, inadequate and unsustainability of the indirect channels, the direct channels have grown tremendously in the past 12-24 months. Producers are now taking the *bull by then horn* and taking responsibility for monetising their content. The greatest beneficiary of
this emerging scenario is YouTube. Many producers have now decided to open their own YouTube
channels to engage directly with their target audience, thus, “cutting-off” the “middlemen”, who
hitherto have been the ones distributing and aggregating for YouTube. Invariably, YouTube has
become the new “aggregator/distributor”, leveraging on its technology and financial model to
attract producers and creators directly. This has become a solid threat to other platforms like
Netflix, Amazon, Hulu, etc., because YouTube does not need to set aside a content budget to
license these billions of hours of content available via its platform, unlike the Netflix & co.
Therefore, whilst Netflix & the likes are busy turning down content, largely because of budget
constraints, and “poor quality standard” excuses, YouTube is busy “acquiring” the same content
for free, only paying for them based on the money it makes from advertisers. This is the biggest
threat to other streaming platforms, hence, many of them are seriously considering altering their
traditional business model, SVOD. Also, YouTube’s dominance is driving the entrants of new AVOD
players, and this further squeezes available advertisers’ budget. These really are interesting times,
but the key is SCALE. The platforms with SCALE are the ones that can win both worlds of SVOD and
AVOD, or even HYBRID.

Despite these developments in the distribution space, black creative works are still largely
undervalued, and this is stifling the growth of the Afro-creative industry. The practitioners
generally under value black content, which reflects in the efforts and investments deployed to the
distribution and monetization black content. Furthermore, the creators themselves do not see or
are consciously blinded to the need to put in place an effective distribution strategy long before
commencement of their productions. We will discuss this in details later.

Distribution, monetization and valuation of black content are largely negatively impacted by the
following factors:

a)__Production Quality:__ which should make distribution easier and “sweeter”, because the
production is well-researched, and born of an excellently developed script. The successful
distribution of a production starts with the script development, which includes detailed
research and excellent screenplay. There is no short-cut to an excellent production
without detailed research, excellent script development and an awesome screenplay. This
stage of production defines the success or failure of that production. I am not talking
about the traditional “*Nollywoood*” or even, “*Afrowood*”. I even heard those traditional
“*Nollywoood*” and “*Afrowood*” productions do not have a well thought-out or developed
scripts; that the productions are based on spontaneous or adaptive/creative acting. Well,
that could work for the local markets, but cannot win globally. I am even sure that the
local markets are currently rejecting these types of production, because the Internet has
exposed the local markets to better and well produced movies and series.

__b) Limited Collaborations:__ One major factor that has contributed to the success of African
musicians is collaboration. They collaborate amongst themselves within Africa, and with
other black talents abroad, most especially, collaborations between African artists and big
American artists. These collaborations always open up the markets for the songs they
have collaborated on. These collaborations break boundaries and cultures, and tap into
the markets that an individual artist would not have been able to reached. This is currently
lacking amongst movie makers in Africa and the diaspora. Collaborations makes
distribution easier, because the finished collaborated works can easily get distributed
across those territories represented in the production. The first Black Panther movie did
very well in South Korea because the country featured for a few minutes in the movies.

__c) Limited Cinema Capacity:__ With about 1800 cinema screens in Africa, with South Africa
accounting for more than half of those screens, serving more than 1.3 billion people, it’s
obvious these numbers create a huge limitation to black cinema releases. Like I always
say, “its easier for a camel to pass through the eye of a needle for black movies to get
maximum exposure via SA cinema screens”, not to imagine the rest of the continent. This
limited cinema capacity is a huge blow on cinema distribution for Afrocentric movies in
Africa. In a year, the number of black movies that individually generate more than five ($5)
million dollars from cinema sales across Africa are not up to five (5.

__d) Limited Windowing Opportunities:__ After a most likely poor showing at the cinemas in
Africa, there are limited windows available for the movie to explore. The producer, most
likely, would either “dump” the production on Netflix or Amazon, or even YouTube. That is
the end!! Whereas, for a Hollywood movie, five (5) years post production, that movie is
still exploring various monetization windows. If the movie gets acquired exclusively by an
SVOD platform or its released as an original, it could even make much more money it
would have made at the cinemas.

__e) Leading to Limited Scaling Opportunities:__ As a result of the factors described above, the
possibility of black productions scaling up globally is almost nil. Afrocentric productions
still struggle to break the colonial imposed borders, not to mention breaking into the
global stage. Of course, with a few exceptions that have crossed those borders, majority
are still confined to their production geographic audience. When black productions start
breaking into all the territories of Africa and the diaspora markets, then we will start
seeing massive scaling. A few black productions have achieved some fits in this regard, but
numbers are extremely small, like I stated earlier, they are not even up to five (5) in a year,
when you look at Netflix, Amazon, Hulu, etc.

__f) Resulting in Limited Capital Inflow:__ Finally, these eventually cumulates into limited
capital inflow into the black creative space. Any investor that wants to invest in any black
production will have to consider all the points I have raised in the article, and then either
declines or cuts the investment he had intended, which in itself could negatively impact on
the production quality. Its like a vicious circle that needs to be broken.

In conclusion, however, we are excited with the developments in the black creative industry in the past
5 years. This is because there have been massive improvements across board within the industry.
Thanks to the activities of streaming platforms like YouTube, Netflix, Amazon, BET, and other black
owned/led platforms like Iroko TV, Afroland, Afrotainment TV, and local African platforms like
MNET/DSTV/Showmax, Azam TV in Tanzania, etc. There has been a giant leap in production quality,
increasing acceptability across borders, and some improvements in distribution.
However, there is still a lot to be done to further transform the industry into the likes of Hollywood,
Bollywood, or even the Turkish, Korean, Filipino, and Spanish creative industries. All hands must be on
deck. We must look at our distribution again, re-evaluate our cinema distribution model, pay attention
to our production quality/value, and consciously/deliberately collaborate across borders. With all
these in place, we will definitely achieve mass appeal and then. global scale that will definitely attract
the much needed continuous investments.

Our latest News

AI and IP Protection

PROTECTING YOUR IP

EMERGING TRENDS IN DISTRIBUTION & THEIR IMPACTS ON BLACK CONTENT

Subscribe to Our Newsletter

Acomartians

Our Address

United States:

Nigeria: