It is almost impossible to fathom a world where creativity is hidden away from the public space, where the only people allowed to see, hear and enjoy it are the creators of such masterpieces, where the public is denied the opportunity of taking part in the magnificence of such works. With such a practice, not only will the public at large be greatly disadvantaged–for the simple fact that they will be denied access to these creative works– but the creators of these works would also run at a great loss as they will be unable to adequately reap the fruits of the labor expended in the creation of the work. It will therefore be a sort of labor in futility.

The laws existing on copyright, vests exclusive rights to exploit creative works on the creators and authors of such works. However, luckily for both the authors and the public, it also provides for ways in which these rights may be assigned or licensed, either exclusively or non-exclusively. This would help authors of creative works to adequately exploit them, reaping the well-deserved fruits of their labor. It will also allow these creative works to be used in the public space without constituting an infringement. However, hardship may occur if the user of a particular category of creative work– for instance a radio always playing music— is compelled to seek permission from the musician of every single music he plays on his station. It may also cause hardship to creators of these works to find trustworthy users, to negotiate advantageous terms with regards to the licensing of their works and also institute action against every single person that may infringe on their work. This is where the task of a collecting society comes into play.

Collecting societies serve the interests of copyright owners by presenting a united front in dealing with different users of their works. It is to be recalled that copyright has different categories of works including, literary works, artistic works, musical works, audio-visual works, sound recordings and broadcast. Therefore, different collecting societies are set up to protect the interest of the authors of creative works within the aforementioned categories of works. They act as intermediaries or agents between right holders and users of copyrighted works. These societies are primarily private and non-profit making; they provide a reliable recourse for copyright owners to safeguard the broad rights conferred on each work. They are therefore saddled with the negotiation and the granting of licenses to users, the collection of royalties and its distribution back to copyright owners, ensuring compliance by users with license terms and instituting action in court in case of an infringement. These bodies also assist users of copyright work by providing a central forum for the prospective users to apply for and secure licenses for the exploitation of these rights without constituting infringement.[1] It would cause a lot of hardship and stress if every copyright owner was to deal individually with each user of their work and it may also be impossible for them alone to be aware of all acts of infringement that may occur against their work. Also for users of these works, for instance a hostel, radio or television station using music, films or any other copyright work to entertain its guests, it will be a tedious process to have to reach out to and negotiate license agreement with each individual copyright owner. Therefore, the importance of the establishment of a collecting society with a well-defined structure and guidelines for carrying out their functions cannot be over emphasized.

Luckily for us, in Nigerians, the Copyright Act 2022 makes provision, under section 88(1) for the formation of collecting societies. However, as opposed to the old act, under the new act they are referred to as Collective Management Organization (CMO). The section provides thus:

“A collective management organization formed by rights owners may apply to the commission for approval to operate in respect of any one or more categories of works”.

From the above provision, it is clear that before a CMO may operate as one, they must obtain the approval of the Nigerian Copyright Commission.[2] Where such approval is not given it may affect the issue of locus standi, that is, the competence for such organizations to bring a case of infringement to court. Also a body, who in disregard of the provision, continues to act as a collecting society without the requisite approval, commits an offence which punishable under the act. For an individual he is punished with a fine of 1,000,000 or a term of 5 years imprisonment or both, while in the case of a body corporate, to a fine of 5,000,000. The commission may approve of a CMO if it meets the requirements stipulated under the act.[3] However it is important to note that once the commission approves a CMO in respect of any category of copyright work, they shall not approve another, for that same category, as long as they are satisfied that the existing approved CMO adequately protects the interests of copyright owners in that category of work.[4] Copyright owners typically assign or license their rights in their works to CMOs, who will administer such rights on their behalf.

In Nigeria there are several CMOs duly approved by the Nigerian Copyright Commission. These include:

• The Reprographic Right Organization of Nigeria (REPRONIG).
• The Audio Visual Rights Society (AVRS)
• The Musical copyright society of Nigeria (MCSN).

A lot of conflict has come up with regards to the provision of the law on the requirement of approval by the NCC before an entity can operate as a collecting society. This is especially as it relates to the issue of locus standi of such body to bring an action for infringement. The act allows individuals to institute civil proceedings for the infringement of their rights in a work, it however also empowers duly approved CMOs to institute these actions on behalf of copyright holders. What will happen in a case where a CMO does not have the requisite approval of the NCC to institute an action in court?

It is to be recalled that there is a provision stating that the NCC shall not approve of two CMOs for a particular category of work. Therefore, as long as the existing approved CMO is working efficiently then there should be no approval of another. In relation to this provision, MCSN (formerly PMRS)

and COSON (formerly PMRS), all representing musical works, have been battling for legitimacy for years. MCSN, which formerly did not have the approval of the NCC, had been acting as a collective society in flagrant disregard of the provision on approval. On July 13, 2018, the Supreme Court delivered a judgment in the case of Adeokin Records v. MCSN. In this case, MCSN commenced legal action for infringement of copyright without prior license from the NCC to sue or even act as a collecting society. It is important to note that this case was instituted after the first amendment to the former Act in 1992, which made it mandatory for anyone wanting to act as a collecting society to seek the approval of the NCC. However, it was commenced before the second amendment to the former Act in 1999. This amendment imposed a limitation on collecting societies that had not received the approval of the NCC. These societies were thus not permitted to institute an action for infringement without the requisite approval. The court therefore held that the Act made provision for the owner, assignee, and exclusive licensee of copyright to sue, and MCSN sued as such. Therefore, they did not need the prerequisite approval of the NCC to sue. This judgment was followed by another similar case, MCSN v. Compact Disc Technology Limited. This suit was instituted after the two amendments mentioned above; however, the judgment of the Supreme Court was quite similar to Adeokin’s case. The judges held that MCSN had the requisite locus standi to institute an action for a case of infringement, as they sued as the owner, assignee, and exclusive licensee of the copyright in the issue at hand. This appears, however, to contradict the provision of the Act on approval.

of the NCC before a body purporting to act as a collecting society may sue for infringement.

It should be noted that one of the most important reasons for MCSN not being approved as a collecting society was because of its failure to provide NCC with its accounts which is one of the requirements for approval. However MCSN continued to operate without approval. This caused a lot of confusion for both copyright holders and especially users because both MCSN and COSON — to whom the NCC had granted its approval — now operated under the same category of musical works. Many users claimed to be very confused on whom to grant royalties to for the use of copyrighted works.[5] As noted by Copinger and Skone James on Copyright, The existence of two or more organizations under the same category of works would, for right owners, lead to a duplication of functions and reduction in economies of scale in operation. It would also lead to a lot of confusion for users who may be unsure of which society to pay royalties to.

In accordance with the powers of the attorney general of the federation to make directives, a directive was issued on the 22^nd March 2017. The directive was issued to the NCC to grant MCSN approval to act as a collective society for the SAME CLASS OF ONWERS AS COSON. Isn’t that shocking? In accordance with the directive, NCC of course, gave its approval to MCSN in a letter dated 3 April, 2017. Therefore two collective societies were operating under the same category of copyrighted works, causing a lot of confusion within the musical space, until the 30th of April, 2018 when NCC, in exercise of its supervisory powers, suspended the approval of COSON to act as a collective society. However, just as MSCN operated as a collecting society before its approval, COSON continued to act as a collecting society after its approval was withdrawn in flagrant disregard of the provisions of the Copyright Act. The whole system truly appears to be in chaos!

The provisions of the Copyright Act, in this author’s opinion are extremely clear. Two collecting societies cannot operate for the same category of works. The act also provides for the establishment of the Nigerian Copyright Commission charged with the administration and management of copyright in Nigeria. They have oversight powers over the CMOs; however their powers appear to be undermined with the constant battles between MSCN and COSON, and the continued operation of each without the approval of the NCC. The decision of the court in the cases mentioned above further complicate the matter as it seems to allow bodies who assume the personae of owner, assignee or exclusive licensee of the work, the right to sue, even though those bodies are not allowed to carry out such functions without the requisite approval of the NCC.  This writer does not believe that the lawmakers of section 37 –which provides that the owner, assignee and exclusive licensee may sue– had it within their contemplation to also protect bodies purporting to carry out functions of collecting societies without the requisite approval from NCC. Also, it is not under dispute that the Attorney General has powers to issue directives, however these directives should be in accordance with the law in order to create some sort of decorum in the enforcement of the law.

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[1] Nigerian law of intellectual property, Adejoke O. Oyewumi.

[2] Copyright Act 2022 , Section 88(4)

[3] Section 88(2), ibid.

[4] Section 88(3), ibid.

[5] https://www.mondaq.com/nigeria/music-and-the-arts/1104488/collection-societies-in-nigerias-music-industry-the-case-for-change last accessed on the 5^th of October 2024.

AUTHOR; JUSTICE OJIENOH