As
some readers will know, the Nigerian Copyright Commission (NCC)
has this week moved to give effect to its suspension of the operating licence
of the Collecting Society of Nigeria (COSON). The NCC has filed criminal
charge FHC/L/338C/18 at the Nigerian Federal High Court, Lagos Division
against COSON, Chief Tony Okoroji, Mr. Chinedu Chukwuji (General Manager), Mrs
Bernice Eremieghe and Miss Anne Okomi (collectively, “COSON and its officers”).
The alleged offence against COSON and its officers is that of carrying out the
duties of a collecting society without the approval of the NCC.
Background
– corporate governance issues
The
background to this criminal charge filed against COSON and its officers is the meeting
of the COSON’s governing board and subsequent meeting of COSON’s general
assembly all held in 2017. See here
and here.
At
the meeting of the governing board, Chief Tony Okoroji was removed as Chairman
and another board member, Mr Efe Omoregbe appointed in his place. However, when
the general assembly had its annual general meeting, Chief Tony Okoroji was
purportedly reinstated as Chairman. Upon petition by some members of COSON to
the NCC alleging irregularities in the appointment process and proceedings at
the meeting, the NCC inter alia directed COSON not to give effect to the
resolutions regarding the removal and reinstatement of board members. Contrary
to NCC’s directives, COSON continued to operate with Chief Okoroji at the helm
of its affairs ostensibly giving effect to the resolutions reached at the
meeting of the general assembly. The NCC, by a letter dated 30th
April 2018, suspended COSON’s operating licence pending COSON’s compliance with
the NCC’s previous directives.
Several
stakeholders have made calls to the NCC to reconsider its decision and lift the
suspension placed on COSON, while exploring other options towards calling COSON’s
erring officers to order. See here.
What’s
happened now?
Matters
came to a head this week. The NCC has been investigating COSON’s activities
since it issued the suspension order. COSON is alleged to have demanded and
collected royalties from a public place, a company called Noah’s Ark. This
action is alleged to amount to the performance of the duties of a collecting society i.e.
carrying on the business of negotiating and granting licenses on behalf of copyright
owners without the approval of the NCC.
Sections 39 (4),
(5) and (6) of the Nigerian
Copyright Act makes it an offence to operate the business of a
collecting society without the approval or licence of the NCC. Apart from the inherent
“taint” of conviction (e.g. disqualification from holding public office,
disqualification from holding directorships in other companies upon an order of
court etc.), the offence attracts a fine of N1,000
($3) for individuals on first conviction and for subsequent convictions, fine
of N2,000 ($6) or imprisonment for a
period not exceeding six months or both fine and imprisonment. In the case of a
body corporate, N10,000 ($27) upon
conviction and N2,000 ($6) for each day
on which the offence continues.
Some
questions
It
is trite that under Nigerian criminal law, an accused person is innocent until
proven guilty. Accordingly, the accused persons here, i.e. COSON and its
officers are presumed to be innocent of the offence of carrying on the business
of collecting society without the requisite licence, until proven guilty. Also,
in proving the commission of a crime, the prosecution must show that the
accused person(s) is responsible for the actus
reus (physical act) and had the mens
rea (guilty mind or intention). See Bolanle Abeke v State (2007) 9 NWLR (Pt
1040) 411 SC. [The requirement to prove mens rea is
not necessary where the offence is a strict liability offence. For example, the
offence of having sexual intercourse with a child under section 31(3) of the Child’s Right Act.]
With
respect to the offence envisaged by section 39(4) of the Copyright
Act, the ingredients of the offence would be: (1) the
absence of approval or licence to operate and (2) carrying on the business of a
collecting society in the absence of such approval. The element of absence of
approval or licence may be easy to prove, as the existence of operating licence is a
question of fact evidenced by a letter of approval or renewal in the case of an
expired licence. However, proving the element of “carrying on the duties or
business of a collecting society” may not be so straightforward.
A
conviction (or acquittal) in respect of the offence envisaged by section 39(4)
is hinged on two questions: what is the “business of a collecting society”. When
is an organisation said to carry on such business? It appears from the
statement on the NCC’s website that the duties of a collecting society undertaken
by COSON and its officers involved “demanding and collecting royalties from Noah’s Ark of
9 Sowemimo Street, GRA, Ikeja Lagos and carrying on the business of negotiating
and granting licenses on behalf of copyright owners”.
As
some readers would recall, Afro-IP has reported on and analysed various cases
from the Nigerian courts on the issue of the status as well as the locus standi
of an organisation that demands and collects royalties on behalf of copyright
owners. See here,
here
and here.
On the issue of locus standi, the courts have indicated that there is a
difference between a collecting society and an owner, exclusive licensee and
assignee of copyright. While the former cannot validly maintain an action for
copyright infringement without an operating licence from the NCC, the latter
may validly do so. [For example, Adeokin Records and another v
Musical Copyright Society of Nigeria SC/336/2008; Compact Disc Technologies Limited and others v MCSN (2010)
LPELR-CA/L/787/2008; MCSN v Adeokin Records (2007) 13 NWLR (Pt 1052) 616; MCSN
v Detail (1996) FHCLR 473; Visafone Comm Ltd v MCSN (2013) 5 NWLR (Pt 1347) 250
etc.]
However,
in all these cases, the courts have not categorically defined the concept of
the “duties” or “business” of a collecting society even though they acknowledge
that collecting societies are owners, assignees and exclusive licensees of
copyright by virtue of the assignment given to them by each of their members. A
definition of this concept is crucial as it determines which organizations
would require the approval or licence of the NCC to validly operate. This is
not solely a Nigerian problem. The requirement for aspiring collecting
societies to obtain approval, licence or accreditation from some regulatory authority
exists in many countries. Recently, South Africa’s Portfolio Committee on Trade
and Industry requested public comments
on specific clauses of its Copyright
Amendment Bill. These clauses involve the requirement of collecting
societies to be accredited and make it a crime to operate without such
accreditation. If adopted, these clauses would also necessitate a clear
definition of the business of a collecting society or a definition of who is a “collecting
society”.
So,
does demanding for and collecting royalties amount to operating the business of
a collecting society such that doing so without NCC’s licence would amount to
an offence? Only the court can tell. But, for sure, an acquittal or a
conviction in this case (NCC v COSON & 4 others) will depend on how the
court defines the expression, “performing the duties of a collecting society”
as stated in section 39(4) of the Copyright Act.
