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