Tuesday, 28 January 2014

Beyond the COSON, BON/IBAN dispute

Here's a guest post from Olumayowa O. Adesanya.  Olumayowa, a legal practitioner, is currently pursuing a Masters in Law programme with a specialisation in Intellectual Property at Queen Mary University of London.
Beyond the COSON, BON/IBAN dispute 
Whilst browsing through some of my favourite gossip blogs in December 2013, I came across a story on the discord between the Collecting Society of Nigeria (COSON) on the one hand and Broadcasting Organization of Nigeria (BON) and Independent Broadcasters Association of Nigeria (IBAN). A statement had been issued to the effect that radio and television stations under the aegis of BON/IBAN were to refrain from playing tunes of artistes under COSON (who happen to be in the majority of topmost artistes) due to what they termed as ‘the antagonism and harassment under the leadership of Tony Okoroji (COSON Chairman)’. I thought it preposterous and did not give it much thought until I heard an On-Air Personality (OAP) deny a caller’s request for a particular song as it was by an artiste affected by the ban. 
From the parties involved, the reason for the dispute is immediately obvious: payment of royalties for broadcast music. In 1993, the Music Copyright Society of Nigeria (MCSN) had applied to the Nigerian Copyright Commission (NCC) for registration as a Collecting Society, which was denied. The Performing Mechanical Rights Society (PMRS), which would later morph into COSON, was granted the right to operate as a Collecting Society in 1995. In 2005, however, MCSN was issued a license to operate as a Collecting Society. This license was withdrawn after a period of three months without an explanation. As such, MCSN, NCC and PMRS (now COSON) have been at loggerheads over the years as to the legality of either party to operate as a Collecting Society as well as the legality of having a sole Collective Management Organisation (CMO). With the matter still before several courts in Nigeria, it would be sub judice to comment on the issue any further.   
However, it would appear that the broadcasters who have always been antagonistic towards the idea of paying royalties decided to take advantage of the situation. This is in addition to various arguments put forth by the broadcasters over the years to avoid their legal obligation as regards payment of royalties. In the era of MCSN and PMRS, they had argued for a sole Collecting Management Organisation (CMO) to represent the collective interest of musicians who they could deal with. With the approval of COSON came the argument of ‘arbitrarily imposed and concocted fees which are not based on any agreeable and verifiable tariff & standards’. Popular opinion held by a number of broadcasters is what they perceive to be their role in promoting artistes. ‘Why then should we be forced to pay royalties to these artistes who practically beg us to play their music’, they argue. This position of course lends itself to the argument against copyright as whole. 
Not disputing the claims of broadcasters, as there are instances where (upcoming) artistes have had to pay OAPs for airplay, the broadcasters also fail to acknowledge that these same artistes provide content. In fact, most radio stations tout themselves to be ‘music’ stations with less talk and less adverts. Owing to lax enforcement of legislation, broadcasters have gotten away with not paying little to no royalties over the years and are bound to resist any move to change the status quo. 
With the Radio, Television, Theatre and Arts Workers Union of Nigeria (RATTAWU) aligning themselves with the broadcasters against COSON, other stakeholders had to wade in to manage the crisis brewing in the music industry. 
The Nigerian Broadcasting Commission decided to tackle the issue by re-iterating the provisions of Article 3.13.2.2 of the Broadcast code, which broadcast stations were bound to run afoul of in consequence of carrying out the ban. The provision states that: 
For the purpose of free-to-air broadcast, Nigerian music shall constitute 80 per cent of all music broadcast. 
NCC stood by its approval of COSON as the sole Collecting Society and emphasised the provisions of the Copyright (Collective Management Organisation) Regulations 2007, which enjoins an aggrieved party to apply to NCC for a review of fees to be paid as copyright royalties. 
The lower house of the National Assembly, the House of Representatives also waded into the matter. In a unanimous voice vote, a motion was passed directing BON/IBAN to withdraw the December 15 directive and mandated the House Committees on Information, Judiciary and Justice to intervene in the matter and report within a month. 
It would appear following the intervention of stakeholders and a series of meetings that both parties have sheathed their swords as most of my favourite artistes have had their songs receive airplay in the past couple of days. A joint committee of NBC, NCC, COSON, BON and IBAN is to be set up with a mandate to review all copyright royalty tariffs with respect to broadcast of musical works and sound recordings and to ensure that the royalties paid by broadcasting stations in Nigeria are fair , reasonable and in accordance with prevailing standards. 
That the broadcasters could hold the music industry to ransom is indeed worrisome. However, certain questions remain unanswered: 
  1. Do the broadcasters pay royalties to artistes not signed under COSON?
  2. Do the broadcasters par royalties on foreign music played?
  3. If yes, to whom and at what rate?
  4. Do other bodies/groups pay royalties?
Ultimately, the resolution of all pending judicial disputes between MCSN, NCC and COSON would be the starting point in resolving this brouhaha as MCSN still claims to own the copyright in a very large repertoire of Nigerian and foreign music. The ownership of which is backed by valid and subsisting agreements, deeds of assignment and contracts of reciprocal representation duly entered into between MCSN and concerned assignors, licensors and creators.

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