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Collecting Societies afford legal basis for a multiplicity of Collecting Societies,

Anarchy in the World of Collecting Societies in Nigeria: Implications for Copyright Protection of Foreign and Local Musical Works (part 2)

thus leaving both local and foreign artistes in a confused state. It is no longer news that the registration of Collecting Societies in Nigeria has been beset with controversies among

February 2009 Vol. 22 Issue # 2

various groups of artistes in the music

(4) It shall be unlawful for any group of persons to purport to perform the duties of a Society without the approval of the Commission as required under this section. (8) ... (9) The Commission may, where it finds it expedient, assist in establishing a collecting society for any class of copyright owners.

industry.

The

requirements

for

registration as a Collecting Society are not rigorous. Before any entity can be granted a licence under the Nigerian Copyright Law, the applicant must show that: (a) it is registered as a company limited by guarantee - as opposed to a company limited by shares - with its primary objectives including:-

The foregoing provisions make it quite clear that the Nigerian Copyright Act

i.

provides for a variety of Collecting Societies performing

to

suit and

the

genres

recorded

of

artworks

which could arise. However, while this generous

stance

is

tenable

ii.

and

reasonable in modern societies with organized

and

efficient

means

of

articulating interest groups, in Nigeria, a

The negotiating and granting of copyright licences on behalf of the copyright owners, who are its members, to third party users at an agreed consideration; and Collecting royalties on behalf of its members and repatriating these royalties after deducting the Society’s approved administrative fee;

wide space for a thousand ideas is often

(b) it represents a substantial number of

a recipe for anarchy. In an industry that

the members of the society in the class

has achieved notoriety for egotism and

that it seeks to administer their rights;

destructive

and,

intended

opportunism, provisions

for

the

well-

multiple

©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.

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(c) it complies with the Copyright

other neighbouring rights remains in

(Collecting Societies) Regulations, 1993.

abeyance.

Any group of persons in the music

Since, October 2007, following claims

industry can easily meet these statutory

and counter claims by the two principal

requirements.

that

collecting rights associations in the

registration as a Collecting Society is

Nigerian music industry, the Nigerian

largely at the discretion of the officials of

Copyright Commission issued a widely

the Nigerian Copyright Commission. It

circulated

is therefore not surprising that in the

members of the public that there is

past decade and continuing to date, the

presently no licensed Collecting Society

Nigerian Copyright Commission has

in Nigeria. Given that Section 32B(4) of

been dragged into the mud of group

the

propaganda and litigation on the issue

amended) makes it a criminal offence

of registration of Collecting Societies.

for any individual body or corporate

The

result

is

public

Nigerian

notice

warning

Copyright

Act

(as

association or group to perform or In

consequence,

local

purport to perform the duties of a

artistes have been left in limbo as the

collecting society without a valid licence

litigation and mud-throwing exercise

issued to it/them by the Nigerian

continue. Given that Collecting Societies

Copyright Commission, it seems that

stand in a fiduciary relationship to

the rights of foreign artistes in Nigeria

artistes,

would remain truncated until the courts

the

foreign

stalemate

and

over

which

collecting society is legitimate in Nigeria

resolve the dispute.

has been detrimental to foreign artistes. In two decisions by the Federal High Section 15 of the Nigerian Copyright Act

Court--Musical

confers the right to protect and bring an

Nigeria Limited v. Adeokin Records, Suit

action

No.

for

the

infringement

of

a

Copyright

FHC/L/CS/216/96

Society

and

of

Musical

copyright on the owner, assignee or

Copyright Society of Nigeria v. Details

exclusive licensee of the copyright. As

Nigeria Limited FHC/L/CS/434/95 the

the efforts by the two major associations

court held that any association without

in Nigeria to have exclusivity to the

a collecting society’s license is in breach

collective administration of copyright in

of the provision of Section 32B(2) of the

musical continue in the law courts, the

Nigerian Copyright Act and as a result

rights of artistes to their royalties and ©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.

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lacks the locus standi to maintain a court action. The

Musical

Copyright

Society

of

Nigeria argued in both cases that it was an

owner,

assignee

and

exclusive

licensee of copyright. The argument was held to be untenable as a party can only

In the past five years, an analysis of the suits filed by Musical Copyright Society of Nigeria shows that it no longer sues in the capacity of a collecting society but as the assignee of the copyright in dispute. Whether this fine distinction can be sustained in law is a question which the Supreme Court of Nigeria may be asked to resolve soon.

sue if it has the legal competence/license to do so. The Federal High Court ostensibly relied on the Court of Appeal

For further inquiries, please contact:

decisions in Re Adetona (1994) NWLR (part 333) 481; Thomas v. Olufosoye (1981) 3 NWLR (part 13) 523. The

Adeokin

case

went

on

appeal

Ms. Nkeiru Onyeaso Email: [email protected] Tel: +234 808 718 0833 Fax: +234 1 2694781

wherein the Court of Appeal held that the 1988 Copyright Act, upon which the originating proceedings in the matter was filed, conferred locus standi on the appellant exclusive

as

owner,

licensee

assignee authorised

and

Dr. Chidi Oguamanam Tel: +234 802 220 4755 Email: [email protected] Fax: +234 1 2694781

to

prosecute the claims in this matter. The Federal

High

Court’s

retrospective

application of the amendments to the 1988 Copyright Act was held by the Court of Appeal to be wrong in law as no retrospective effect was intended in the Copyright (Amendment) Act, 1999. The Court of Appeal remitted the matter to the Federal High Court for reassignment by the Chief Judge for hearing before another trial Judge.

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©Blackfriars LLP 2009. All rights reserved. This document is for general guidance only. Definitive advice should be sought from counsel if required. Blackfriars LLP is a Nigerian law firm with a representative office in Toronto, Canada.