Abstract
The concept of copyright and its emergence are trite . (See Uvieghara Egerton E., Essays on Copyright Law and Administration in Nigeria (Y- Books, Nig. Ltd, 1992); David Bainbridge, Intellectual Property (Pitman Publishing, 4th ed., 1992); Torremans Paul & Jon Holyoak, Intellectual Property Law (Butterworths, London, 1996); Jeremy J. Phillips, Robyn Durie, and Ian Karet, Whales on Copyright (London Sweet & Maxwell, 5th ed., 1997); Ilechukwu Magnus Olueze, Nigerian Copyright Law (Magnapress Ltd., 1998); J.O. Asein, The Nigerian Copyright Act with Introduction and Notes (Ibadan Sam Bookman Publishers, 1998); J.O. Asein & E.S. Nwauche (eds.), A Decade of Copyright Law in Nigeria (Nigerian Copyright Commission, 2002); Shyllon Folarin, Intellectual Property Law in Nigeria, (The Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, Vol. 21, 2003); Cornish, William, and Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, (Thomas, Sweet & Maxwell, 5th Ed., 2003); F.O. Babafemi, Intellectual Property: The Law & Practice of Copyright, Trade Marks, Patent & Industrial Designs in Nigeria, (Justinian Books Limited, 1st ed., 2006).) Thus, it suffices to say that copyright law is a branch of the law that deals with rights of intellectual creators (There are also Laws in respect of Patents and Designs—CAP P2, Laws of the Federation of Nigeria (LFN) 2004; Trade Marks—CAP T13, LFN 2004; etc., all in respect of intellectual creations.); which deals with particular forms of creativity pertaining mostly, but not limited, to matters of mass communication.
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Notes
- 1.
See Uvieghara Egerton E., Essays on Copyright Law and Administration in Nigeria (Y- Books, Nig. Ltd, 1992); David Bainbridge, Intellectual Property (Pitman Publishing, 4th ed., 1992); Torremans Paul & Jon Holyoak, Intellectual Property Law (Butterworths, London, 1996); Jeremy J. Phillips, Robyn Durie, and Ian Karet, Whales on Copyright (London Sweet & Maxwell, 5th ed., 1997); Ilechukwu Magnus Olueze, Nigerian Copyright Law (Magnapress Ltd., 1998); J.O. Asein, The Nigerian Copyright Act with Introduction and Notes (Ibadan Sam Bookman Publishers, 1998); J.O. Asein & E.S. Nwauche (eds.), A Decade of Copyright Law in Nigeria (Nigerian Copyright Commission, 2002); Shyllon Folarin, Intellectual Property Law in Nigeria, (The Max Planck Institute for Intellectual Property, Competition and Tax Law, Munich, Vol. 21, 2003); Cornish, William, and Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, (Thomas, Sweet & Maxwell, 5th Ed., 2003); F.O. Babafemi, Intellectual Property: The Law & Practice of Copyright, Trade Marks, Patent & Industrial Designs in Nigeria, (Justinian Books Limited, 1st ed., 2006).
- 2.
There are also Laws in respect of Patents and Designs—CAP P2, Laws of the Federation of Nigeria (LFN) 2004; Trade Marks—CAP T13, LFN 2004; etc., all in respect of intellectual creations.
- 3.
See Copyright Act—CAP C28, LFN 2004, sections 1 and 6, particularly, for works eligible for copyright and its general nature, inter alia.
- 4.
WIPO Intellectual Property Reading Material, Geneva, March 1998, at 3.
- 5.
Which expression denotes those who take and use the form in which the original work was expressed by the author, without license or due authorization.
- 6.
The Nigerian Copyright Act, 1990.
- 7.
Id., Section 39(8).
- 8.
The cases referred to are: Instone v. Schroeder (A) Music Publishing Co. [1974] 1 All E.R. 174 C.A.; Shroeder Music Publishing Co. Ltd v. Macaulay [1974] 1 W.L.R. 1308; and Clifford Davis Management v. W.E.A. Records [1975] 1 W.L.R. 61.
- 9.
I.E. Sagay, Nigerian Law of Contract, (Spectrum Books Limited, Ibadan, 2nd ed., 2000) at 154.
- 10.
See Olaolu S. Opadere, “Collecting Societies in the Nigerian Entertainment Industry: An Indispensable Tool for Optimization”, Contemporary Issues of Law and Justice in Nigeria, (Essays in Honour of Justice Umaru Ali Eri, OFR, 2008), pp. 160–178.
- 11.
The Copyright Act, supra note 6, section 39(7).
- 12.
Ibid.
- 13.
The Copyright (Collective Management Organization) Regulations, 2007.
- 14.
Garnett Kevin, James Jonathan Rayner and Davies Gillian, Copinger and Skone James on Copyright, (Sweet and Maxwell, London, 14th ed., Vol. 1, 1999) at 1491; See also Shane Simpson, “The Role of Copyright Collecting Societies in Australia”, Simpson Solicitors, 135 Macquarie Street Sydney NSW 2000, Australia, Report to the Federal Government of Western Australia in April 1996, available at: http://www.copyrightcollectingsocietiesinAustralia.htm [accessed on September 10, 2009].
- 15.
ASCAP was formed in February 1914 and is reputed to be the oldest of the major contemporary performance rights organisations (PROs). Its declared revenue for year 2007 was $863 million and it paid royalties of $741 million to its diverse membership of more than 315,000 music creators. See ASCAP, “ASCAP Achieves Outstanding 2007 Financial Performance” (2008), available at: http://www.ascap.com/press/2008/0208_financial.aspx [accessed on May 19, 2009].
- 16.
See Eliot Van Bushirk, “Record-Setting BMI Royalties Point the Way towards Music Licensing—Not Sales”, 2007, available at: http://www.wired.com/listening_post/2007/09/record-setting/ [accessed on May 19, 2009], to the effect that BMI was founded in 1939 to contend with the monopoly of ASCAP, among other things. Furthermore, for its fiscal year 2006–2007, it gave out $732 million as royalties to its members. See also Marcus, “BMI Distributes More Royalties Than Ever Before” (2008), available at: http://blog.idiomag.com/2008/09/bmi_distributes_more_royalties_than_ever_before/ [accessed on May 19, 2009], which reveals that in 2008 BMI published $901 million as its revenue, out of which $786 million was paid as royalty to copyright holders. Furthermore, by its Annual Review of 2009–2010, it declared revenues in excess of $917 million, for the fiscal year ended June 30, 2010; see “BMI Annual Revenue 2009–2010”, available at: http://www.bmi.com/pdfs/publications/2010/annual_review_0910.pdf [accessed on September 14, 2012].
- 17.
APRA was formed in 1926, and had gathered about 24,700 members by 1997–1998, to whom it distributed $66.7 million in royalty payments. For the fiscal year 2006–2007, it paid $122.9 million to a membership that had grown to over 48,500; See Research Hub, “Copyright and the Arts: Growth in Royalty Payment”, available at: http://www.australiacouncil.gov.au/research/visual_arts/reports_and_publications/copyright_and_the_arts_growth_in_royalty_payments [accessed on May 19, 2009].
- 18.
While arguing in favour of fair use, Thomson reported that in 2006, the copyright-controlled industry contributed $1.3 trillion to the U.S. economy. See Iain Thomson, “Copyright ‘Harming’ the U.S. Economy” (2007), available at: http://www.iwr.co.uk/vnunet/news/2198704/copyright-harms-economy-report [accessed on September 10, 2009].
- 19.
See also Olaolu S. Opadere, “Copyright Protection as Catalyst to Economic Growth”, 2(1) University of Benin Journal of Private and Property Law, 2011, pp. 39–40.
- 20.
See PMRS: “Press Release”, available at: http://www.pmrsnigeria.com/Press_Release3.html [accessed on June 8, 2009]; Omolodun A. Paul, “The Rights of NCC to Disapprove any Collecting Society”, The Guardian, Tuesday, January 16, 2007, at 70; Emman Anukwe, “MCSN Loses Operational Certificate”, Nigerian Newsday, Nassarawa State Weekly Newspaper, Tuesday, November 29, 2005; and Godwin Tom-Lawyer, “The Role of Collecting Societies in the Music Industry”, available at: http://lexprimus.com/Publications/The_Role_of_Collecting_Societies_in_the_Music_Industry.pdf [accessed on June 8, 2009].
- 21.
The Copyright Act, supra note 6, section 39(3).
- 22.
In this regard, for instance, the United States of America has at least three major performing rights organisations (ASCAP, BMI, and SESAC) representing the interest of their diverse members.
- 23.
See “NCC Extends Deadline for Collective Management Application”, The Nation, Sunday, September 6, 2009, at 35. While celebrating its 20th anniversary in 2009, the NCC made a heartening resolve to establish a viable collective management system. Thus, in furtherance of its effort to reposition collective management of copyright in Nigeria, organizations wishing to operate as collective management organisations were invited to formally indicate interest by forwarding their applications. This was a commendable effort, even though ultimately, not much came out of it.
- 24.
The Copyright Act, supra note 6, section 39(2)(a).
- 25.
This perceived error is contained in the Nigerian Copyright Act, whereas, the major focus of this discourse is on the Regulations. However, this issue of CMOs as charity or for profit- making is regarded as fundamental to the functionality of CMOs. Hence its being regarded as a major issue for discussion in this critique.
- 26.
Company and Allied Matters Act-CAP C20, Laws of the Federation of Nigeria, 2004, section 26.
- 27.
Id., sections 26(1), (4), and (6).
- 28.
The Copyright Act, supra note 6, section 39(8).
- 29.
CMO Regulations, supra note 13, para 1(4).
- 30.
Id., para 2(e), particularly 3(2).
- 31.
It is important to underscore that the Commission’s opinion is determined at every given occasion by those running its affairs; which opinion may be determined by their pre- disposition to the various CMOs, as the occasion may arise.
- 32.
CMO Regulations supra note 13, para 7(1)(a)–(e).
- 33.
See Amadi v. NNPC (2000) 10 NWLR Pt. 674 at 97, where the court stated that: “the word ‘shall’, when used in an enactment is capable of bearing many meanings. It may be implying futurity or implying a mandate or direction or giving permission. If it is used in a mandatory sense, then the action to be taken must obey or fulfil the mandate exactly; but if it is used in a directory sense, then the action to be taken is to obey or fulfil the directive substantially.” See also Awuse v. Odili (2004) 8 NWLR, Pt. 876, p. 481; A.G. Abia State v. A.G. Federation (2005) 6 SCNJ, 1 at 35, inter alia, for the interpretation of the word ‘shall’, when used in legislation and/or regulation.
- 34.
See also para 13(2) for another such arbitrary provision, to the effect that “a collective management organisation shall, draw up tariff, in respect of remuneration it demands for the usage of copyright works administered by it.” Para 13(3) goes further to highlight certain yardstick for the setting of the tariff, which is here considered prone to abuse. The paragraph states thus: “In setting the tariff, an organisation may, take into consideration the following: (a) the monetary advantage obtained from the exploitation; (b) the value of the copyright material; (c) the purpose for which, and context in which, the copyright material is used; (d) the manner or kind of use of the copyright material; (e) the proportion of the utilization of a work in the context of exploitation; (f) any relevant decision of the Court or the Dispute Resolution Panel; and (g) any other relevant matter.”
- 35.
CMO Regulations, supra note 13, para 9(2).
- 36.
Id., para 1(2)(f).
- 37.
Id., para 10(1) and (2).
- 38.
Id., para 10(3).
- 39.
(2004) 8 NWLR PT.876, pp. 481–521; See also Amokeodo v. IGP (1999) 6 NWLR, PT.607, p.467 at 485, where the court observed that: “the principle governing the use of ‘shall’ in a legislative sentence is that it is generally imperative or mandatory. In its ordinary meaning, it is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. It is sometimes intended to be directory only and in that case, it is equivalent to ‘may’ and will be construed as being merely permissive.”
- 40.
CMO Regulations, supra note 13, para 14.
- 41.
The Copyright Act, supra note 6, section 46.
- 42.
See Id., section 39(3), to the effect that “the Commission shall not approve another society in respect of any class of copyright owners, if it is satisfied that an existing approved society adequately protects the interest of that class of copyright owners”. It is arguably implicit that this is one of the reasons why the Commission has hitherto not allowed multiplicity of CMOs.
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Opadere, O.S. (2018). The Complexities of Nigeria’s Copyright (Collective Management Organizations) Regulations, 2007. In: Nirmal, B., Singh, R. (eds) Contemporary Issues in International Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-6277-3_18
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