Wednesday, 17 August 2011

Nigeria Copyright Commission - Statutory Powers Whittled Down!

The decision of the Federal High Court in the case of Musical Copyright Society of Nigeria [MCSN] v Nigeria Copyright Commission [NCC] delivered on the 25th of July 2011 effectively curtailed the statutory powers of NCC to conduct anti-piracy raids and seizure of property under section 38 of the Copyright Act 2004 , particularly section 38 (5) which states that  “A Copyright Inspector shall have all the powers, rights and privileges of a police officer as defined under the Police Act and under any other relevant enactment pertaining to the investigation, prosecution of or defence of a civil or criminal matter under this Act”. The court also determined the constitutionality of NCC using statutory powers under section 39 to deter the owner, assignee or exclusive licensee of copyright from taking legal action to protect its copyrights under section 17.
MCSN instituted the action against NCC for breach of its fundamental constitutional rights, as owners, assignees and exclusive licensee of copyrights, by NCC which persistently conducted anti-piracy raids on its offices for six years and continue to arrest and harass members of its staff without prosecution. NCC alleged that MCSN is not an approved collecting society in accordance with section 39 and therefore deemed an illegal operator under section 39(4) which the NCC is authorised under section 38 to raid and close down. NCC also claimed it received a petition from the International Federation of Phonograph Industry [IFPI] complaining that MCSN is infringing the rights of its members by authorizing the reproduction of musical works belonging to them without permission which NCC acted upon in raiding MCSN offices.
The court held the NCC raids on MCSN offices, arrests of its officers, and seizure of documents were arbitrary and heavy handed. Commenting on the evidence before the court the Judge said “the actions were those of an agency determined to bring to heal an offensive rather than an offending body corporate and its executive officers”. NCC was found in breach of its statutory powers in conducting the raids having effected arrests without obtaining an arrest warrant in accordance with the Criminal Procedure Act. In respect of section 38(5) the court held “The phrase ‘the rights and privileges of a police officer’ is a peculiar one. Not all acts of infringement amount to piracy and charging unwarranted into premises on the complaint of a supposed owner or licensee of copyright [IFPI] is illegal and unconstitutional...NCC responded to a complaint of infringement by a party whose alleged rights are supposedly infringed but have not been adjudicated upon, the particulars of the complaint are undisclosed and the infringed works over which they claimed rights are not detailed. NCC acted at the instance of a complainant who declined to pursue civil remedies for whatever reasons”.
In response to NCC’s allegation that MCSN is an illegal collecting society the court referred to the decision of the Court of Appeal in MCSN v Adeokin Records [2004] where it was established that MCSN is the owner, assignee and exclusive licensee of a large repertoire of musical works through international reciprocal representation agreements entered into with 118 collecting societies worldwide. The court held “NCC has failed to acknowledge, appreciate or welcome the notion and reality that owners and assignees of copyright can enforce property rights without necessarily being registered as collecting societies by the Commission. Registration as a collecting society is not a prerequisite for the enjoyment and exercise of the rights of an owner or exclusive licensee of copyright. Section 44 of the 1999 Constitution guarantees the protection of the appellant’s [MCSN] Property and the offence of purporting to perform the duties of a collecting society without approval of the Commission created by section 39 of the Copyright Act cannot and does not relate to the activities of owners, assignees and exclusive licensees of copyright. Any provision of any statute that in any way seeks to curb the enjoyment of property rights, to subjugate or detract from same without any discernable purpose other than the registration and monitoring of same is unconstitutional and any statutory provision that seeks to criminalise the purposeful protection of property rights by those in whom such rights are vested is unconstitutional, null and void. Whatever else it seeks to do, the provision of section 39 does not seek to hinder, encumber or restrict the private enforcement of property rights by the owners, assignees or exclusive licensees of copyright; nor does it intend to criminalise such private enforcement and to that extent the provision of section 39 is unconstitutional, null and void” 
In conclusion the court reprimanded NCC stating “The Copyright Commission was established to reinforce the rights of copyright owners, assignees and exclusive licensees, not to be an institutional hurdle with arbitrary power to restrict the private enjoyment and enforcement of such rights. Copyright owners do not exist at the pleasure of the Commission; or merely to validate its establishment and most definitely the Commission was not established to undermine, denigrate or exert obedience from copyright owners which I find to be the tone and purpose of the 1st respondent’s [NCC] many interventions in the affairs of the applicant [MCSN]. It is for the NCC to justify the denial of an owner, assignee or exclusive licensee of its approval as a collecting society in the light of the constitutional prerogatives attached to the enjoyment of property rights. It is not for the Commission to hound persons, corporate or otherwise, that are legitimately and constitutionally protecting their proprietary interests. The Commission and its principal officers should not be in the business of subverting the property rights of copyright owners. I am persuaded that they have been doing exactly that in their dealings with the applicant herein”. The court awarded substantial damages to MCSN.
The interesting point is how to reconcile the decision of the Federal High Court, a trial court, with that of the Court of Appeal in Compact Disc Technologies Ltd v Musical Copyright Society [MCSN] [2010] where it was held that MCSN has no locus standi to institute the action as owner, assignee and exclusive licensee unless it is registered as a collecting society in compliance with section 17 of the Copyright Act 2004. The appellate court stated in page 15 of its judgment that “however, by way of an exception to the general rule in question, the court has the liberty (discretion), in some very exceptional deserving cases, to consider circumstances surrounding the case as a whole, including the need to take some evidence before determining the vexed question of locus standi vis-a-vis jurisdiction”. But in this case the appellate court did not deem it necessary to exercise that discretion despite the plethora of documentary evidence before the court that MCSN is legitimately protecting its exclusive proprietary rights against infringers based on the undisputed fact that it is the only body corporate, whether a collecting society or not, legally capable to do so. The stringent and restrictive interpretation of section 17 by the appellate court deprived MCSN’s assignees and also millions of exclusive licensees of their inalienable proprietary rights protected by section 44 of the 1999 Constitution of Nigeria. The Federal High Court, on the other hand, took into consideration this most important constitutional issue on property rights vis-a-vis section 39 of the Copyright Act 2004 in coming to its decision. The appellate court was in a position to grant MCSN a right of exemption under section 17(b) but it failed to seize the opportunity to do justice in the spirit of protecting copyright owners against infringers, which is the clear intention and purpose of the Copyright Act, instead the appellate court stuck to the letter of the law turning a blind eye to the resultant injustice.
(c) Ayo Solarin, 2011                                                                                                    Intellectual Property Lawyer/Copyright Specialist & Author

Friday, 22 July 2011

Nigerian Music Copyright Administration in Legal Chaos
The decision of the Court of Appeal in Musical Copyright Society of Nigeria [MCSN] v Cowpact Disc Technologies & others [CA/L/787/2008] delivered on 17th of March 2010 has blown wide open the question of who has the legitimate right to collect music royalties on behalf of composers, authors, songwriters and music publishers, both international and indigenous, whose rights are recognised by the Copyright Act. The Court of Appeal in MCSN v Nigeria Hotels [1992], MCSN v Adeokin Records [2004] and the Federal High Court in MCSN v Vee Networks Ltd [2009] held that MCSN is the owner, assignee and exclusive licensee of the largest repertoire of musical works within Nigeria based on an international reciprocal representation agreement with the Performing Rights Society of England [PRS] which grant MCSN exclusive ownership of musical works belonging to over ten million composers and songwriters worldwide, including renowned Nigerian composers, songwriters and authors who have assigned their musical copyrights directly to either PRS or any of the 225 authors’ societies in 118 countries whose repertoires are exclusively controlled in Nigeria by MCSN. The court decisions were reached in favour of MCSN on the ground that it has the locus standi to institute legal actions against infringers under section 15 of the Copyright Act 1988 being the owner, assignee and exclusive licensee of the musical works in question.
A new provision, now section 17 of the Copyright Act 2004, was introduced which in effect restricted MCSN, or any other substantial owner of copyright works, from suing infringers under the old section 15, now section 16 of the Copyright Act 2004, unless registered as a collecting society or given a certificate of exemption by the Nigeria Copyright Commission [NCC]. The decision of the Court of Appeal in MCSN v Cowpact Disc Technologies [2010] is that inspite the gamut of evidence before the court that MCSN is the owner, assignee and exclusive licensee of the largest repertoire of musical works in Nigeria, a fact that was not in dispute, the court had no choice but to rule MCSN lacked locus standi to bring the action against infringers of numerous musical works belonging to its repertoire since it isn’t a registered collecting society in accordance with section 17 of the Copyright Act. MCSN has a history, dating back to 1993, of application to the Nigeria Copyright Commission for registration as a collecting society but always denied, except in 2005 when NCC issued MCSN with a license which was withdrawn within three months, without explanation. NCC approved Performing Mechanical Rights Society [PMRS] to operate as a collecting society in respect of musical works in 1995, and with the demise of PMRS, Copyright Society of Nigeria [COSON] was licensed to collect royalties for musical works. The fundamental question is what qualifies COSON to be registered as a collecting society in respect of musical works and what disqualifies MCSN in respect of same? The provision of section 39(2) (c) of the Copyright Act 2004 is vital in the registration process of any collecting society since there is a mandatory pre-registration conditionality that the applicant must “ represents a substantial number of owners of copyright in any category of works protected by this Act”.
The impression given by NCC is that COSON met the pre-registration requirement of section 39(2) (c) and NCC is satisfied under section 39(3) that the approved COSON adequately protects the interest of substantial numbers of musical copyright owners in Nigeria. However, the reality of the contractual arrangements before the law courts is that MCSN is in fact the largest owner of musical works representing substantial owners in that category numbering over ten million composers, authors, songwriters and music publishers across the world whose works are controlled through assignments and exclusive license arrangements entered into with MCSN. The presumption of the court decisions is that MCSN is the owner, assignee and exclusive license of these musical works, since there is no evidence to the contrary before the courts, in accordance with section 43 of the Copyright Act. If the presumption of the Nigerian courts is that MCSN is the substantial owner of musical copyright within Nigeria then the assumption of NCC in support of COSON’s registration remain unsubstantiated unless COSON can present the assignments and exclusive licenses that make it the “substantial owner of musical copyrights” in compliance with section 39(2)(c). Since PMRS or COSON is yet to establish its rights in court as owners, assignee and exclusive licensee of musical works under section 16 it is difficult to determine the extent of the society’s repertoire, that is, if any. Did COSON meet the requirement of section 39(2) (c) of the Copyright Act 2004? The evidence of Chief Tony Okoroji, then PMRS and present COSON chairman, on behalf of the defendant infringer in MCSN v Vee Networks Limited [page 18 & 19] is that PMRS has no legal nexus whatsoever to the author/owner of the musical work in question which it licensed for use to the defendant company, “PMRS is in the habit of collecting royalties of those who are not assignees of the society”, “PMRS protect artists without any agreements which “is the tradition all over the world” and “PMRS does these activities because it has the approval of NCC to do so”. The summation of the judge on the evidence given by Chief Tony Okoroji is that “He did not give any useful evidence that relates to infringement of the copyright of the plaintiff by the defendant...in fact this witness did not give any substantial evidence to show that they have a right to the musical work or to use it or that it was obtained from a legal source”. It is clear that the activities of PMRS, as described in evidence by Chief Okoroji, is tantamount to illegality and touting the license issued to the society by NCC which is contrary to the intention of the Copyright Act.
Where does this leave music copyright administration in Nigeria? MCSN the legal owner, assignee and exclusive licensee of musical works under section 16 is debarred by virtue of section 17 from protecting and enforcing tens of millions of musical works belonging to it unless it is approved as a collecting society. COSON, on the other hand, is registered as a collecting society and though it may claim to have locus standi by virtue of section 17 but obviously it doesn’t have the locus standi to prosecute infringement actions in respect of the substantial numbers of musical works belonging to MCSN under section 16. COSON may have a government license but clearly not the contractual consent of the majority of musical copyright owners. In practicality both MCSN and COSON are rendered incapable of licensing or enforcing the copyrights of millions of composers, authors, songwriters and music publishers worldwide who continue to suffer piracy of their musical works on Nigerian radio, television and cable stations. What can be done to resolve the dilemma? NCC has clearly goofed in law thereby creating the chaotic situation. It has no choice but to revisit the provisions of sections 39(2) (c) and 39(3) of the Copyright Act through which the locus standi requirement in sections 16 and 17 derive its source of authority. The alternative is for NCC to grant MCSN a certificate of exemption under section 17 permitting it to enforce its legitimate rights under section 16 of the Copyright Act or even create a level playing field by approving both societies to compete in a free market.
(c) Ayo Solarin,2011 Intellectual Property Lawyer/Copyright Specialist

Thursday, 21 July 2011

Nigerian Music Copyright Administration in Legal Chaos

 Nigerian Music Copyright Administration in Legal Chaos

The decision of the Court of Appeal in Musical Copyright Society of  Nigeria [MCSN] v Cowpact Disc Technologies & others [CA/L/787/2008] delivered on 17th of March 2010 has blown wide open the question of who has the legitimate right to collect music royalties on behalf of composers, authors, songwriters and music publishers, both international and indigenous, whose rights are recognised by the Copyright Act. The Court of Appeal in MCSN v Nigeria Hotels [1992], MCSN v Adeokin Records [2004] and the Federal High Court in MCSN v Vee Networks Ltd [2009] held that MCSN is the owner, assignee and exclusive licensee of the largest repertoire of musical works within Nigeria based on an international reciprocal representation agreement with the Performing Rights Society of England [PRS] which grant MCSN exclusive ownership of musical works belonging to over ten million composers and songwriters worldwide, including renowned Nigerian composers, songwriters and authors who have assigned their musical copyrights directly to either PRS or any of the 225 authors’ societies in 118 countries whose repertoires are exclusively controlled in Nigeria by MCSN. The court decisions were reached in favour of MCSN on the ground that it has the locus standi to institute legal actions against infringers under section 15 of the Copyright Act 1988 being the owner, assignee and exclusive licensee of the musical works in question.

 A new provision, now section 17 of the Copyright Act 2004, was introduced which in effect restricted MCSN, or any other substantial owner of copyright works, from suing infringers under the old section 15, now section 16 of the Copyright Act 2004, unless registered as a collecting society or given a certificate of exemption by the Nigeria Copyright Commission [NCC]. The decision of the Court of Appeal in MCSN v Cowpact Disc Technologies [2010] is that inspite the gamut of evidence before the court that MCSN is the owner, assignee and exclusive licensee of the largest repertoire of musical works in Nigeria, a fact that was not in dispute, the court had no choice but to rule MCSN lacked locus standi to bring the action against infringers of numerous musical works belonging to its repertoire since it isn’t a registered collecting society in accordance with section 17 of the Copyright Act. MCSN has a history, dating back to 1993, of application to the Nigeria Copyright Commission for registration as a collecting society but always denied, except in 2005 when NCC issued MCSN with a license which was withdrawn within three months, without explanation. NCC approved Performing Mechanical Rights Society [PMRS] to operate as a collecting society in respect of musical works in 1995, and with the demise of PMRS, Copyright Society of Nigeria [COSON] was licensed to collect royalties for musical works. The fundamental question is what qualifies COSON to be registered as a collecting society in respect of musical works and what disqualifies MCSN in respect of same? The provision of section 39(2) (c) of the Copyright Act 2004 is vital in the registration process of any collecting society since there is a mandatory pre-registration conditionality that the applicant must “ represents a substantial number of owners of copyright in any category of works protected by this Act”.

The impression given by NCC is that COSON met the pre-registration requirement of section 39(2) (c) and NCC is satisfied under section 39(3) that the approved COSON adequately protects the interest of substantial numbers of musical copyright owners in Nigeria. However, the reality of the contractual arrangements before the law courts is that MCSN is in fact the largest owner of musical works representing substantial owners in that category numbering over ten million composers, authors, songwriters and music publishers across the world whose works are controlled through assignments and exclusive license arrangements entered into with MCSN. The presumption of the court decisions is that MCSN is the owner, assignee and exclusive license of these musical works, since there is no evidence to the contrary before the courts, in accordance with section 43 of the Copyright Act. If the presumption of the Nigerian courts is that MCSN is the substantial owner of musical copyright within Nigeria then the assumption of NCC in support of COSON’s registration remain unsubstantiated unless COSON can present the assignments and exclusive licenses that make it the “substantial owner of musical copyrights” in compliance with section 39(2)(c). Since PMRS or COSON is yet to establish its rights in court as owners, assignee and exclusive licensee of musical works under section 16 it is difficult to determine the extent of the society’s repertoire, that is, if any.

Did COSON meet the requirement of section 39(2) (c) of the Copyright Act 2004? The evidence of Chief Tony Okoroji, then PMRS and present COSON chairman, on behalf of the defendant infringer in MCSN v Vee Networks Limited [page 18 & 19] is that PMRS has no legal nexus whatsoever to the author/owner of the musical work in question which it licensed for use to the defendant company, “PMRS is in the habit of collecting royalties of those who are not assignees of the society”, “PMRS protect artists without any agreements which “is the tradition all over the world” and “PMRS does these  activities because it has the approval of NCC to do so”. The summation of the judge on the evidence given by Chief Tony Okoroji is that “He did not give any useful evidence that relates to infringement of the copyright of the plaintiff by the defendant...in fact this witness did not give any substantial evidence to show that they have a right to the musical work or to use it or that it was obtained from a legal source”. It is clear that the activities of PMRS, as described in evidence by Chief Okoroji, is tantamount to illegality and touting the license issued to the society by NCC which is contrary to the intention of the Copyright Act. 

Where does this leave music copyright administration in Nigeria? MCSN the legal owner, assignee and exclusive licensee of musical works under section 16 is debarred by virtue of section 17 from protecting and enforcing tens of millions of musical works belonging to it unless it is approved as a collecting society. COSON, on the other hand, is registered as a collecting society and though it may claim to have locus standi by virtue of section 17 but obviously it doesn’t have the locus standi to prosecute infringement actions in respect of the substantial numbers of musical works belonging to MCSN under section 16. COSON may have a government license but clearly not the contractual consent of the majority of musical copyright owners. In practicality both MCSN and COSON are rendered incapable of licensing or enforcing the copyrights of millions of composers, authors, songwriters and music publishers worldwide who continue to suffer piracy of their musical works on Nigerian radio, television and cable stations. What can be done to resolve the dilemma? NCC has clearly goofed in law thereby creating the chaotic situation. It has no choice but to revisit the provisions of sections 39(2) (c) and 39(3) of the Copyright Act through which the locus standi requirement in sections 16 and 17 derive its source of authority. The alternative is for NCC to grant MCSN a certificate of exemption under section 16 permitting it to enforce its legitimate rights under section 15 of the Copyright Act or even create a level playing field by approving both societies to compete in a free market. 
(c) Ayo Solarin,2011                                                                                                                          Intellectual Property Lawyer/Copyright Specialist

Wednesday, 1 June 2011

WHY REGISTER A SINGLE COLLECTING SOCIETY?

WHY REGISTER A SINGLE COLLECTING SOCIETY?

There is a call from certain quarters for the registration of a single collecting society to represent the interests of the music industry.
It is hoped that the Nigerian Copyright Commission (NCC) will not heed this call; unless, it is agreeing with the general misconception that the music industry embraces only musicians and record companies/ labels and not music composers, songwriters and performers. In fact, the Nigerian Copyright Act provides for these groups separately. S1 (e) Sound recordings; protects copyrights of musicians, record companies and labels. S1 (b) musical works; protects copyrights of composers, lyricists and songwriters and S32B (2) (c) protects copyrights of live performers. The separation of these copyrights is necessary because of their contrasting and conflicting nature.
Record companies/ labels/musicians jointly derive their income predominantly from the sales of CDs, while composers and songwriters earn income from the use of their musical works by record companies/labels and performance of music by broadcast stations, and performers livelihood is from live performances; concerts, operas, dramas, etc.
When S32b(1) provides that “A collecting society may be formed in respect of one or more rights of copyright owners for the benefit of such owners” reference is not being made to only musicians and record companies/labels. So, what are the criteria for registration or refusal by the NCC? They are embedded in the emphasised words in the provision of S32b (2) (c): “The NCC may approve a Society if it is satisfied that it represents a substantial number of owners of copyright in any category of works protected by this Act....” The word “satisfied” places a strict legal requirement upon NCC to conduct thorough investigations to ascertain whether or not the applicant represents a substantial numbers of owners.
If the Act allows at least seven distinct collecting societies, why then would anyone contemplate the imposition of a single collecting society?
Beyond “satisfaction” how should NCC treat the clause “a substantial number of owners of copyright?” NCC must request the applicant seeking registration to provide sufficient evidence of the assignments, exclusive licenses and reciprocal agreements it has entered into with the owners in the category of works. This is a clear provision against touting. It would be illegal and a miscarriage of justice for NCC to force upon owners of copyright a society which substantial numbers of them have not acceded their legal rights. The legal requirement of substantiality is based on a factual test ascertainable from legal documentary evidences presented by the applicant. The Universal dictionary meaning of the word ‘substantial’ is indicative that the applicant needs to show that it has considerable amount of owners of copyright such that would be regarded as majority in that category.
Clearly, it behoves on NCC to recognise the distinct nature of the copyrights listed in S1 and S32b (2) (C) and ensure that each category is given opportunity to evolve independently, thrive and be of financial benefit to the owners. Trying to merge legally conflicting rights and interests will lead to sabotage of the copyright owners’ economic rights. NCC must recognise that Nigerian record companies/labels and home video producers have for many years evaded the legal and economic rights of composers and songwriters owing them millions of naira in unpaid royalties. This piracy must be redressed by implementing the yet unutilised Third Schedule of the Act which definitely requires separate representation of the conflicting copyright interests to guarantee transparency and proper arms length business dealing.
NCC does not need to reinvent the wheel by starting from scratch a registration process that has already taken nearly 20 years; instead it can utilise what is already on ground, though far from perfect, and restructure them to meet required standards. NCC has the option of registering Performing and Mechanical Rights Society (PMRS) to represent the interests of sound recording copyright owners considering that the society was founded by record companies and Musicians. The Musical Copyright Society of Nigeria (MCSN) founded by owners and administrators of musical works may be approved to protect the copyright interests of composers, songwriters and music publishers.
This is provided that these societies meet the substantiality requirement of the Act. A third society is necessary to represent the business interests of live performing musicians, singers, actors, actresses, dancers, choreographers and those recognised by Rome Convention.
Registration of a single collecting society to represent conflicting copyright interests in the music industry does not make business sense and will prove disastrous and should be avoided. Lastly, NCC also has the responsibility under S32b to protect copyright owners by ensuring that the governing boards and administrative structures of collecting societies, even established ones, are properly vetted; to ensure that their ‘Directors’ and ‘Chairmen’ have genuinely vested copyright interests and financial investments in the industry.
Ayo Solarin is an intellectual Property/Music & Film Business Lawyer and Member of the International Association of Entertainment Lawyers
(c) Ayo Solarin, Zedakah Entertainment Consultants UK, 2010

Tuesday, 31 May 2011

IP Matters and Business Solutions: WHY RESGISTER A SINGLE COLLECTING SOCIETY?

IP Matters and Business Solutions: WHY RESGISTER A SINGLE COLLECTING SOCIETY?: "WHY RESGISTER A SINGLE COLLECTING SOCIETY? There is a call from certain quarters for the registration of a single collecting society to rep..."

FIGHTING PIRACY WITH LAMENTATIONS

FIGHTING PIRACY WITH LAMENTATIONS
LAGOS STATE Governor Babatunde Raji Fashola, SAN, is wise. His antidote for piracy in Nigeria – a strategic constructive engagement with the “pirates” - is probably the most intelligent thing as yet from anyone on piracy in Nigeria.
The record companies which ruled the Nigerian music industry between 1980s and 1990s distributed their products through local distribution networks which controlled the retail markets. Most of these record companies collapsed because they did not adopt new business strategies to meet technological changes of the time; from vinyl to cassettes and CDs. The skeletal music labels thereafter continued on the same risky path. Same applies to the home video industry (Nollywood) which started life as a result of business ingenuity of local distribution networks.
Piracy is fuelled by sheer technological opportunism with easy access to readily available electronic devices that can mass produce copies within minutes. We have “home taping pirates” who ‘dub’ music/videos to save themselves the cost of buying original copies, and “commercial pirates” whose business is illicitly mass producing copies of original products for distribution into retail outlets.
The Nigeria Film and Video Censors Board (NFVCB) recently reeled out a new distribution scheme based on registration of distributors. This is not pessimism: it took years of commitment and resources to create the existing local networks which extend to West Africa and other parts of Africa; so it iswishful thinking to expect the newly-licensed distributors to immediately establish national networks to dislodge them. The necessity of economic survival as rightly pointed out by Governor Fashola is the primary reason why those who earn their livelihood through the local networks will not go away in a hurry. Even so, what is NFVCB’s guarantee that they too, sooner or later, will not get caught up in commercial piracy?
Anyway, why would music/video producers wait and hope that the Nigeria Copyright Commission and NFVCB will wield magic wands that will eradicate piracy? This kind of lackadaisical attitude and unprogressive expectation was the undoing of the record companies and the primary cause of Nollywood’s plunge into recession in recent times. It is suicidal for producers to abandon their business caps and allow non-business-oriented government bodies to make crucial business decisions that would shape the future of the entertainment industry and the pockets of its practitioners.
Commercial piracy is fuelled by financial deficiencies in the market place rather than by anti-social behaviour. The most pronounced deficiency is producers not controlling or getting involved in the reproduction and release processes. And in situations where they do carry out the reproduction themselves, they hardly press enough products to meet market demands. Nigeria is a nation of 150 million people; therefore the release of fewer than 1.5 million cds or vcds, cannot meet market demand. The unmet demand is what commercial pirates meet with illegal copies that run into millions. This opportunism is definitely not unique to Nigeria; what is, is that producers are doing little or nothing strategic to redress the threatening situation. The time has come when music labels and home video producers must work collectively in seeking practical business solutions that will remove or at least reduce this market deficiency to the barest minimum. The good news is that encryption technologies that can restrict both home taping and commercial piracy are now available. When this is combined with carefully planned marketing strategies and value-added promotional incentives, it will spur on more consumers to buy original copies and errant local distributors/retailers would have to rethink their trade.. These are necessary fundamental business steps that have to be taken to woo interest and encourage the corporate banking and finance sector to invest in the entertainment industry.
The foregoing must be supported by other key strategies that will re-orientate and assimilate the local networks/retailers bringing them in as stakeholders and partners forming an important economic base of the entertainment industry. Similar strategies are known to be working successfully in Jamaica, a developing nation like ours, and the largest exporter of internationally acclaimed reggae music, where pirate distributors were offered a new deal and assimilated into the business. Interestingly, they are now the foot soldiers giving protection to music products within given territories. New legislations, tweaking the copyright laws to give more powers to NCC or NFVCB, or legal actions that unfortunately linger in court for years and resolve practically nothing in the market place at the end of the day are clearly not the business way forward for an ailing entertainment industry.
Music/video producers establish private infrastructure that will act as 24/7 vigilante/inspection bodies to protect their products and watch over them in the markets. Section 21 of the Copyright Act allows: “Notwithstanding the provisions of any law to the contrary, it shall be permissible for both criminal and civil actions to be taken simultaneously in respect of the same infringement under this Act.” Thus, while NCC handles criminal proceedings, affected producers can bring collective civil actions for financial restitution in addition to organising strategic marketing through private infrastructure. After all, producers earn nothing from criminal actions. The proposed infrastructure would act as a one-stop shop for all producers to bring civil actions, rather than piecemeal, and use that power to sanitise the markets.
Ayo Solarin is an intellectual Property/Music & Film Business Lawyer and Member of the International Association of Entertainment Lawyers
(c) Ayo Solarin, Zedakah Entertainment Consultants UK, 2010