Thursday, 18 August 2011

NCC has its knuckles rapped over raids, seizures against collecting society

In July, Afro-IP hosted this article by Nigerian IP lawyer and business consultant Ayo Solarin, "Collecting royalties in Nigeria: a confused situation?", which reviewed the impact of the decision of the Court of Appeal in Musical Copyright Society Nigeria [MCSN] v Cowpact Disc Technologies & others [CA/L/787/2008] on the controversial question of entitlement to collect music royalties on behalf of local and foreign composers, authors, songwriters and music publishers. Now, in "Nigeria Copyright Commission - Statutory Powers Whittled Down!", Ayo takes us from the gathering of royalties to being raided for the seizure of pirate copies in his review of last month's Federal High Court decision in Musical Copyright Society of Nigeria [MCSN] v Nigeria Copyright Commission [NCC]. Ayo writes:
"Nigeria Copyright Commission - Statutory Powers Whittled Down! 
The decision of the Federal High Court in Musical Copyright Society of Nigeria [MCSN] v Nigeria Copyright Commission [NCC], 25 July 2011, effectively curtailed the statutory powers of NCC to conduct anti-piracy raids and seizure of property under the Copyright Act 2004, s.38, particularly s.38(5) which states: 
“A Copyright Inspector shall have all the powers, rights and privileges of a police officer as defined under the Police Act and under any other relevant enactment pertaining to the investigation, prosecution of or defence of a civil or criminal matter under this Act”. 
The court also determined the constitutionality of NCC using statutory powers under section 39 to deter the owner, assignee or exclusive licensee of copyright from taking legal action to protect its copyrights under section 17. 

MCSN instituted the action against NCC for breach of its fundamental constitutional rights, as owners, assignees and exclusive licensee of copyrights, by NCC which persistently conducted anti-piracy raids on its offices for six years and continue to arrest and harass members of its staff without prosecution. NCC alleged that MCSN is not an approved collecting society under s.39 and therefore deemed an illegal operator under s.39(4), which the NCC is authorised under s.38 to raid and close down. NCC also claimed it received a petition from the International Federation of Phonograph Industry [IFPI] complaining that MCSN infringed the rights of its members by authorizing the reproduction of musical works belonging to them without permission which NCC acted upon in raiding MCSN offices. 
The court held the NCC raids on MCSN offices, arrests of its officers, and seizure of documents were arbitrary and heavy-handed. Commenting on the evidence before the court. the judge said 
“the actions were those of an agency determined to bring to heal an offensive rather than an offending body corporate and its executive officers”. 
NCC was found in breach of its statutory powers in conducting the raids having effected arrests without obtaining an arrest warrant in accordance with the Criminal Procedure Act. In respect of s.38(5) the court held: 
“The phrase ‘the rights and privileges of a police officer’ is a peculiar one. Not all acts of infringement amount to piracy and charging unwarranted into premises on the complaint of a supposed owner or licensee of copyright [IFPI] is illegal and unconstitutional... NCC responded to a complaint of infringement by a party whose alleged rights are supposedly infringed but have not been adjudicated upon, the particulars of the complaint are undisclosed and the infringed works over which they claimed rights are not detailed. NCC acted at the instance of a complainant who declined to pursue civil remedies for whatever reasons”. 

In response to NCC’s allegation that MCSN is an illegal collecting society the court referred to the decision of the Court of Appeal in MCSN v Adeokin Records [2004] where it was established that MCSN is the owner, assignee and exclusive licensee of a large repertoire of musical works through international reciprocal representation agreements entered into with 118 collecting societies worldwide. The court held: 
“NCC has failed to acknowledge, appreciate or welcome the notion and reality that owners and assignees of copyright can enforce property rights without necessarily being registered as collecting societies by the Commission. Registration as a collecting society is not a prerequisite for the enjoyment and exercise of the rights of an owner or exclusive licensee of copyright. Section 44 of the 1999 Constitution guarantees the protection of the appellant’s [MCSN] Property and the offence of purporting to perform the duties of a collecting society without approval of the Commission created by section 39 of the Copyright Act cannot and does not relate to the activities of owners, assignees and exclusive licensees of copyright. Any provision of any statute that in any way seeks to curb the enjoyment of property rights, to subjugate or detract from same without any discernable purpose other than the registration and monitoring of same is unconstitutional and any statutory provision that seeks to criminalise the purposeful protection of property rights by those in whom such rights are vested is unconstitutional, null and void. Whatever else it seeks to do, the provision of section 39 does not seek to hinder, encumber or restrict the private enforcement of property rights by the owners, assignees or exclusive licensees of copyright; nor does it intend to criminalise such private enforcement and to that extent the provision of section 39 is unconstitutional, null and void”. 

In conclusion the court reprimanded NCC, stating: 
“The Copyright Commission was established to reinforce the rights of copyright owners, assignees and exclusive licensees, not to be an institutional hurdle with arbitrary power to restrict the private enjoyment and enforcement of such rights. Copyright owners do not exist at the pleasure of the Commission; or merely to validate its establishment and most definitely the Commission was not established to undermine, denigrate or exert obedience from copyright owners which I find to be the tone and purpose of the 1st respondent’s [NCC] many interventions in the affairs of the applicant [MCSN]. It is for the NCC to justify the denial of an owner, assignee or exclusive licensee of its approval as a collecting society in the light of the constitutional prerogatives attached to the enjoyment of property rights. It is not for the Commission to hound persons, corporate or otherwise, that are legitimately and constitutionally protecting their proprietary interests. The Commission and its principal officers should not be in the business of subverting the property rights of copyright owners. I am persuaded that they have been doing exactly that in their dealings with the applicant herein”. 
The court awarded substantial damages to MCSN. 
The interesting point is how to reconcile the decision of the Federal High Court, a trial court, with that of the Court of Appeal in Compact Disc Technologies Ltd v Musical Copyright Society [MCSN] [2010] where it was held that MCSN has no locus standi to institute the action as owner, assignee and exclusive licensee unless it is registered as a collecting society in compliance with s.17 of the Copyright Act 2004. The appellate court stated in page 15 of its judgment that 
“...by way of an exception to the general rule in question, the court has the liberty (discretion), in some very exceptional deserving cases, to consider circumstances surrounding the case as a whole, including the need to take some evidence before determining the vexed question of locus standi vis-a-vis jurisdiction”. 
But in this case the appellate court did not deem it necessary to exercise that discretion despite the plethora of documentary evidence before the court that MCSN is legitimately protecting its exclusive proprietary rights against infringers based on the undisputed fact that it is the only body corporate, whether a collecting society or not, legally capable to do so. The stringent and restrictive interpretation of s.17 by the appellate court deprived MCSN’s assignees and also millions of exclusive licensees of their inalienable proprietary rights protected by section 44 of the 1999 Constitution of Nigeria. The Federal High Court, on the other hand, took into consideration this most important constitutional issue on property rights vis-a-vis section 39 of the Copyright Act 2004 in coming to its decision. The appellate court was in a position to grant MCSN a right of exemption under s.17(b) but it failed to seize the opportunity to do justice in the spirit of protecting copyright owners against infringers, which is the clear intention and purpose of the Copyright Act, instead the appellate court stuck to the letter of the law turning a blind eye to the resultant injustice".

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