COPYRIGHTED SONGS IN CHURCHES

My church choir sings a popular Christian song in church as their special ministration song on Sunday. Is this innocent worship or a breach of copyright law? Well, the answer is the ministration is an innocent worship. 

Firstly, let’s understand what Copyright Infringement is. Copyright infringement is said to occur when someone uses your work without asking for permission from you. For example, if someone takes part of your song and adds to his/her song without necessary permission, such a person is said to have infringed on your copyright. According to Black, H.C.C, Black’s Law Dictionary, (7th ed) ,Copyright is the right of literary property as recognised and sanctioned by positive law. The current law regulating Copyright in Nigeria is the Copyright Act 2022. The Copyright Act provides for eligibility for Copyright, rights of a copyright holder, transfer/licensing of Copyright, exceptions to Copyright, and remedies for breach of Copyright, among many issues affecting Copyright. 

REQUIREMENTS FOR COPYRIGHT PROTECTION

1. Originality: Before creative work (a song) can enjoy copyright protection, it must be an “original work” and be fixed in a tangible form of expression. The independent creative arm requires the author to create the work from scratch or part of it from scratch without copying from an already existing creative work
2. Fixation: It is a requirement that the author’s work has been fixed in any medium of expression known or later to be developed, from which it can be perceived, reproduced, or otherwise communicated. By this, the work must be written down, taped, filmed, or otherwise captured.

One of the essential attributes of Copyright is ownership. Ownership of Copyright comes into existence automatically without any formalities. The person who makes the work is usually the first owner of the Copyright in the work, provided he has not created the work in the course of employment, in which case his employer will be the first owner of the Copyright. What then are the rights of a copyright owner ? There are numerous rights a copyright owner enjoys, but the general rights can be found in Sections 9-13 of the Nigerian Copyright Act 2022, and they include the right to;

1. Copy the work (reproduction right) 
2. Issue copies of the work to the public (distribution right) 
3. Rent or lend the work to the public (rental or lending right) 
4. Perform, show, or play the work in public (public performance right) 
5. Broadcast the work (broadcasting rights)  
6. Include it in a cable program service 
7. Adapt the work, or do any of the above Acts about an adaptation
8. The right to authorise others to carry out any of these activities

The duration of Copyright in literary, musical, or artistic works other than photographs is 70 years after the end of the year in which the author dies according to Section 19(1)(a) of Copyright Act 2022.

SECTION 20

(1) The rights conferred in respect of a work under sections 9-13 of this Act, do not include the right to control any of the acts specified in those sections by way of fair dealing for purposes such as 

(a) private use;

(b) parody, satire, pastiche, or caricature;

(c) non-commercial research and private study;

(d) criticism, review or the reporting of current events, subject to the condition that, if the use is public, it shall, where practicable, be accompanied by an acknowledgment of the title of the work and its author except where the work is incidentally included in a broadcast: Provided that in determining whether the use of a work in any particular case is fair dealing, the factors to be considered shall include the- 

(i) purpose and character of its usage,

 (ii) nature of the work,

 (iii) amount and substantiality of the portion used in relation to the work as a whole, and 

(iv) effect of the use upon the potential market or value of the work;

One way to avoid copyright infringement is through a fair dealing defense. From the above section, in determining whether the use of a work in any particular case is fair dealing, one of the factors to be considered is the purpose of its usage. If a church choir decides to use someone’s song during a church service, the purpose of its usage is not to generate royalty, so it is not copyright infringement. Another factor is the effect of the use upon the potential market.

I personally think singing a copyrighted song in church doesn’t bring money to my pocket as the lead singer or the church’s account, so it cannot amount to copyright infringement, and so far, the choir isn’t claiming the song to be their original work, it is not copyright infringement.

The case where fair dealing defense will not fly is when the copyrighted song is used for commercial purposes, when the song is used in a church concert that charges fee and when the lyrics or instrumental are reproduced, printed, or streamed publicly without permission or license. If the choir wants to do any of these, a license is needed to be gotten from a licensing body like COSON ( Copyright Society of Nigeria).

In conclusion, singing a copyrighted song in church during a service is lawful but once you commercialize, record, or publish it, you are deemed to have committed copyright infringement. Singing the songs encourage awareness and respect for creators’ rights even in worship.

CONTRIBUTORS

Managing Partner, EKO SOLICITORS AND ADVOCATES

Counsel, EKO SOLICITORS AND ADVOCATES

FAITH OGUNLEYE

Graduate Trainee EKO SOLICITORS AND ADVOCATES

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