Nigeria's approved society of collectors still limited, for the time being

Does an exclusive licensee of copyright works [Musical Copyright Society of Nigeria Limited] have the right to exercise property rights in such works outside of and notwithstanding the provisions of Sections 17 and 39 of Copyright Act 2004, which requires the approval of the Respondent [Nigerian Copyright Commission] before one can act as collecting society?

This is the principal question that the Court of Appeal was asked in the case of Musical Copyright Society of Nigeria Limited v. Nigeria Copyright Commission CA/L/575/2009 decided late last year. As readers will recall, this is just the latest in a series of attempts by the Musical Copyright Society to secure the approval of the Copyright Commission to become a collecting society. See here and here.

Background

The facts of the case are straightforward. Musical Copyright Society of Nigeria Limited (MCSN) applied to the Federal High Court (the court of first instance) for declaratory reliefs in the main that by virtue of the fundamental rights guaranteed under the Constitution, it does not require a license from the Respondent to carry on the activities of a collecting society.

That application, dismissed at first instance, was also dismissed on appeal, essentially on the ground that the application was made under the wrong procedure and, therefore, the court had no jurisdiction to entertain the application in the first place. The procedure in question was the application made under the Fundamental Human Right Enforcement Procedure Rules 1979, made strictly to be used when the main relief is the enforcement of the rights stated under Chapter IV of the Constitution. 

Issues raised on appeal

In his lead judgment, Justice Uzo I. Ndukwe-Anyanwu identified the issue of the competency of the appeal and 3 other issues raised by the parties. While the learned Justice answered the question of the competency of the appeal finding the appeal incompetent, he declined to resolve the other 3 questions raised by the parties stating that resolving the issues “would just be a mere academic jamboree”. [Page 34]

The three questions raised were:

Is intellectual property within the meaning of moveable or immovable property referred to and protected by the 1999 Constitution or the African Charter of Human and People’s Rights

MCSN argued that insofar as Section 11 of the Copyright Act referred to copyright as a moveable property, copyright falls within the property referred to and protected by the Constitution. The Nigerian Copyright Commission (NCC) conceded that copyright was indeed moveable property but the assignee or licensee of copyright does not own property rights within the contemplation of Section 44 of the Constitution [pages 16 – 17].

Can an entity [MCSN] negotiate licenses and collect and distribute royalties in respect of copyright works without the approval of the Copyright Commission

The contention of MCSN was that the Commission’s approval was not required to enjoy copyright in musical works seeing as it acquired the exclusive licenses prior to the commencement of the Copyright Act. The Commission argued that in so far as MCSN was an association of copyright owners and had the objective of negotiating and granting licenses and royalty collection and distribution, it was a collecting society and required the Commission’s approval to legally act.

Does the requirement of seeking the Commission’s approval to carry on as a collecting society offend the provisions of the Constitution regarding freedom to form associations and control property?

MCSN’s reasons for asserting that the requirement for approval was unconstitutional was that such requirement deprived it of the right to freedom of association as guaranteed under the Constitution. The Commission was of the opinion that such requirement was not a denial of right but a procedure to the acquisition and enjoyment of right.

While the court made no pronouncement on the said 3 issues, it did manage to indicate that questions of requirements for approval to act as collecting society are not questions of fundamental rights infringement of collective-society-hopefuls. Copyright licensees have no right to sue for infringement of fundamental human rights relating to the subject matter of their license. It is sufficient to note that the Court rejected at the outset the view of MCSN that the assignment of right to manage copyright also constituted the assignment of right to sue for infringement of such copyright under the Constitution. According to the Court, it is only the owners of copyright that can sue on the infringement of their rights. [Page 31].

Comment

It is disappointing that the Court of Appeal chose not to address the crux of the appeal. 

The decision of the Federal High Court refusing the applicant’s application was the subject of the appeal. Yet, the Court of Appeal chose to ignore the subject of the appeal and focus on the technical issue of procedure. That is not say that the Court of Appeal acted amiss – competency of suits goes to jurisdiction which supercedes all other issues no matter how pertinent.

The reaction of the Copyright Commission and that of its favoured collecting society, COSON to the judgment of the Court of Appeal is a tad misleading. Apart from COSON’s headline “Court holds that the provisions of the Copyright Act requiring the approval by the Copyright Commission of a CMO are constitutional”, both the NCC and COSON’s reportage of the judgment is almost word-for-word: “In a unanimous judgment of the Court of Appeal Lagos delivered on October 21, 2016, the Court dismissed the MCSN appeal. In the lead judgment delivered by Anyanwu J.C.A, the court held that the provisions of the Copyright Act do not violate any constitutional rights reserved for MCSN”.

Contrary to the NCC’s assertion that the Judgment has “laid to rest the contention on who between COSON and MCSN should carry out the functions of collecting society for the music industry”, the Appeal Court in declining to resolve the issues raised by both MCSN and NCC at the appeal, has extended the fight matter to another day.

You can review the full judgment here.