Thursday 11 October 2018

Chijioke Ifeoma Okorie

Intellectual property and crime: The Nigerian Copyright Commission files criminal charges against a music collecting society

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.

Chijioke Ifeoma Okorie

Chijioke Ifeoma Okorie

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