In December 2017, the Federal Executive Council approved the new
Copyright Bill which, after passing through the necessary
legislative process, will repeal the Copyright Act of 1988 (first
promulgated as a decree). There is no doubt that this move is
commendable for being an effort at aligning the copyright
protection and administration regime in Nigeria with domestic and
global developments. According to the bill, the policy
consideration behind it is to, among other things, “effectively
protect the rights of authors to ensure just rewards and
recognition for their intellectual efforts while also providing
appropriate limitations and exceptions to guarantee access to
creative works, encourage cultural interchange and advance public
welfare”.
While this definitely sounds like good music, we should not be
too quick to dance to it without considering some of the trade-offs
that have been made in the bill, and whether they are justifiable
under our constitution. Particularly, this article focuses on the
provisions of the bill that deal with the administration of
“collecting societies” or “Collective Management Organisations” and
how it affects the fundamental rights to freedom of association and
property of copyright owners.
As you may already know, the whole point of the existence of
CMOs is to make it easier for copyright owners to license their
works. CMOs are supposed to simplify: (a) the process of licensing
for prospective users of copyright material who otherwise need to
identify and locate the copyright owner and negotiate a licence on
an individual basis, and (b) the collection of royalties by the
copyright owner. Indeed, the importance of CMOs comes to light when
one imagines what it would take Wizkid to have to deal with every
television station, radio station, restaurants, clubs, shopping
malls etc. for the purpose of granting each a licence to play his
songs and collect royalties. This is why no one can reasonably
question the practicability of letting artistes grant CMOs an
umbrella licence to act on their behalf. The CMO thus stands as an
agent for the copyright owners in relation to the general users of
their works.
However, as useful and desirable as this arrangement is, it is
only logical that the authority of the CMOs to so act must come
from the copyright owner himself, either by voluntarily becoming a
member of a CMO or otherwise expressly authorising the CMO to act
on his behalf. This lack of the artiste’s authority is the basis
for my view that the manner by which CMOs are provided for in the
new copyright bill infringes on the fundamental right to freedom of
association of Nigerian artistes as guaranteed under Section 40 of
the 1999 Constitution (as amended) and also their right to property
(see Section 44 of the Constitution).
Section 74 (10) of the bill states as follows:
Notwithstanding the provisions of this Act or any other law, a
CMO may issue licences permitting the use of works of owners of
copyright who are not members of the CMO:
Provided that: (a) such works are of the same category as works
for which it is approved to issue licences; (b) the owners of
copyright in such works are not otherwise represented by any other
CMO; (c) the owners of copyright in such works have not
specifically opted out of collective management of their rights and
(d) the CMO does not discriminate against such owners in terms of
the tariffs for the use of their works and the royalties paid to
such owners.
Clearly, parts of the foregoing provision run contrary to our
constitution, especially sub-section (c). Section 40 of the 1999
Constitution of the Federal Republic of Nigeria (as amended)
provides:
Every person shall be entitled to assemble freely and associate
with other persons, and, in particular, he may form or belong to
any political party, trade union or any other association for the
protection of his interests…
From the foregoing, it is clear that according to this bill,
whether or not copyright owners choose to be members of a CMO, the
CMO will act on their behalf. Thus, in effect, all copyright owners
are automatically deemed members of an approved CMO and have to
expressly opt out if they do not want the CMO to act on their
behalf in collecting royalties. The bill goes even further to
empower CMOs to issue licences to third parties permitting the use
of works of copyright owners, all without the permission of the
copyright owner.
It is submitted that forcefully adding copyright owners into an
association and then purporting to grant them an option to opt out
is a backdoor method of infringing both their right to freedom of
association and right to property. Fundamental human rights should
be expanded, not narrowed down as is done in this bill. It is only
right that one ought to be asked for a confirmation first before
being added into a group (especially one that affects his right to
property). A CMO is neither a Facebook group nor a trade union.
Royalties constitute the majority, if not the totality, of the
income of some artistes and to give a CMO the right to collect
those royalties without the express authorisation of the owners is
daring.
At any rate, “it is settled law that expropriatory statutes
which encroach on a person’s proprietary rights must not be
construed strictly against the acquiring authority but
sympathetically in favour of the person whose property rights are
being deprived” (see Provost Lagos State College of Education v.
Edun [2004] 6 NWLR (Pt. 870) 476 at 509).
This bill provides no formula or methodology for remitting
royalties collected on behalf of artistes and leaves same to the
discretion of the CMO. It is not hard to foresee a situation
whereby a CMO can claim that it did not remit royalties to some
copyright owners because it did not have their contact information
or other data of copyright owners since they are not members. Also,
since there is no way for the non-member copyright owners to know
that a CMO has collected royalties on their behalf, they cannot
hold the CMO accountable.
With all due commendation for the government’s laudable plan to
fight piracy in the country, this is not the only problem in the
entertainment industry. Automatically, adding artistes/copyright
owners into a group is even worse than piracy, as it infringes on
our artistes’ fundamental human rights. It is submitted that
artistes, just like everybody else, should have a say in what
organisation they want to join and/or who they want to manage their
royalties.
In conclusion, it is submitted that the Copyright Commission
should grant more licenses to organisations who have exercised
their fundamental right to associate and who meet all the legal
conditions as same would allow copyright owners more options to
choose from. I believe this will better serve the policy
consideration, protect the rights of authors and ensure just
rewards and recognition for their intellectual efforts while also
guaranteeing access to creative works and advancing public welfare.
And perhaps more importantly, this will be in compliance with
Chapter 4 of the 1999 Constitution.
Lari-Williams, a lawyer, wrote from Lagos
In December 2017, the Federal Executive Council approved the new
Copyright Bill which, after passing through the necessary
legislative process, will repeal the Copyright Act of 1988 (first
promulgated as a decree). There is no doubt that this move is
commendable for being an effort at aligning the copyright
protection and administration regime in Nigeria with domestic and
global developments. According to the bill, the policy
consideration behind it is to, among other things, “effectively
protect the rights of authors to ensure just rewards and
recognition for their intellectual efforts while also providing
appropriate limitations and exceptions to guarantee access to
creative works, encourage cultural interchange and advance public
welfare”.
While this definitely sounds like good music, we should not be
too quick to dance to it without considering some of the trade-offs
that have been made in the bill, and whether they are justifiable
under our constitution. Particularly, this article focuses on the
provisions of the bill that deal with the administration of
“collecting societies” or “Collective Management Organisations” and
how it affects the fundamental rights to freedom of association and
property of copyright owners.
As you may already know, the whole point of the existence of
CMOs is to make it easier for copyright owners to license their
works. CMOs are supposed to simplify: (a) the process of licensing
for prospective users of copyright material who otherwise need to
identify and locate the copyright owner and negotiate a licence on
an individual basis, and (b) the collection of royalties by the
copyright owner. Indeed, the importance of CMOs comes to light when
one imagines what it would take Wizkid to have to deal with every
television station, radio station, restaurants, clubs, shopping
malls etc. for the purpose of granting each a licence to play his
songs and collect royalties. This is why no one can reasonably
question the practicability of letting artistes grant CMOs an
umbrella licence to act on their behalf. The CMO thus stands as an
agent for the copyright owners in relation to the general users of
their works.
However, as useful and desirable as this arrangement is, it is
only logical that the authority of the CMOs to so act must come
from the copyright owner himself, either by voluntarily becoming a
member of a CMO or otherwise expressly authorising the CMO to act
on his behalf. This lack of the artiste’s authority is the basis
for my view that the manner by which CMOs are provided for in the
new copyright bill infringes on the fundamental right to freedom of
association of Nigerian artistes as guaranteed under Section 40 of
the 1999 Constitution (as amended) and also their right to property
(see Section 44 of the Constitution).
Section 74 (10) of the bill states as follows:
Notwithstanding the provisions of this Act or any other law, a
CMO may issue licences permitting the use of works of owners of
copyright who are not members of the CMO:
Provided that: (a) such works are of the same category as works
for which it is approved to issue licences; (b) the owners of
copyright in such works are not otherwise represented by any other
CMO; (c) the owners of copyright in such works have not
specifically opted out of collective management of their rights and
(d) the CMO does not discriminate against such owners in terms of
the tariffs for the use of their works and the royalties paid to
such owners.
Clearly, parts of the foregoing provision run contrary to our
constitution, especially sub-section (c). Section 40 of the 1999
Constitution of the Federal Republic of Nigeria (as amended)
provides:
Every person shall be entitled to assemble freely and associate
with other persons, and, in particular, he may form or belong to
any political party, trade union or any other association for the
protection of his interests…
From the foregoing, it is clear that according to this bill,
whether or not copyright owners choose to be members of a CMO, the
CMO will act on their behalf. Thus, in effect, all copyright owners
are automatically deemed members of an approved CMO and have to
expressly opt out if they do not want the CMO to act on their
behalf in collecting royalties. The bill goes even further to
empower CMOs to issue licences to third parties permitting the use
of works of copyright owners, all without the permission of the
copyright owner.
It is submitted that forcefully adding copyright owners into an
association and then purporting to grant them an option to opt out
is a backdoor method of infringing both their right to freedom of
association and right to property. Fundamental human rights should
be expanded, not narrowed down as is done in this bill. It is only
right that one ought to be asked for a confirmation first before
being added into a group (especially one that affects his right to
property). A CMO is neither a Facebook group nor a trade union.
Royalties constitute the majority, if not the totality, of the
income of some artistes and to give a CMO the right to collect
those royalties without the express authorisation of the owners is
daring.
At any rate, “it is settled law that expropriatory statutes
which encroach on a person’s proprietary rights must not be
construed strictly against the acquiring authority but
sympathetically in favour of the person whose property rights are
being deprived” (see Provost Lagos State College of Education v.
Edun [2004] 6 NWLR (Pt. 870) 476 at 509).
This bill provides no formula or methodology for remitting
royalties collected on behalf of artistes and leaves same to the
discretion of the CMO. It is not hard to foresee a situation
whereby a CMO can claim that it did not remit royalties to some
copyright owners because it did not have their contact information
or other data of copyright owners since they are not members. Also,
since there is no way for the non-member copyright owners to know
that a CMO has collected royalties on their behalf, they cannot
hold the CMO accountable.
With all due commendation for the government’s laudable plan to
fight piracy in the country, this is not the only problem in the
entertainment industry. Automatically, adding artistes/copyright
owners into a group is even worse than piracy, as it infringes on
our artistes’ fundamental human rights. It is submitted that
artistes, just like everybody else, should have a say in what
organisation they want to join and/or who they want to manage their
royalties.
In conclusion, it is submitted that the Copyright Commission
should grant more licenses to organisations who have exercised
their fundamental right to associate and who meet all the legal
conditions as same would allow copyright owners more options to
choose from. I believe this will better serve the policy
consideration, protect the rights of authors and ensure just
rewards and recognition for their intellectual efforts while also
guaranteeing access to creative works and advancing public welfare.
And perhaps more importantly, this will be in compliance with
Chapter 4 of the 1999 Constitution.
Lari-Williams, a lawyer, wrote from Lagos
Read more https://nairalaw.com/new-copyright-bill-and-artistes-rights/