The amendments to the Copyright Act, first in 1992 and then in 1999 brought into Nigeria’s collective administration regime, a regulatory dispensation491 with criminal sanctions492 on offenders and also limits the right to commence or maintain actions for infringement of copyright493. The amendments amongst other things set out conditions for establishing a collecting society494, the profit or non-profit nature of a collecting society in Nigeria495, the issue of single or multiple societies,496 and makes it mandatory for any organisation which is to carry on the duties of negotiating and granting of licenses, collecting and distributing royalties to right owners, to first obtain approval from the Nigerian Copyright Commission as well as providing that failure to obtain such an
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Reproduction Rights Society of Nigeria (REPRONIG) is an approved collecting Society for Literary works.
490
See http://www.cosonng.com/stakeholders.html where Okoroji noted that “By that announcement, COSON joined Reprographic Rights Organization of Nigeria (REPRONIG) which has been the sole copyright collective management organization for literary works in Nigeria.”
491
Introduced through Section 39 Nigerian Copyright Act
492
Section 39 (5) & (6) Nigerian Copyright Act.
493 See Justice Obiageli’s comments in Compact Disc Technologies V MCSN CA/L/787/2008
where she noted that “… compliance with this condition precedent to the institution of an action by any person carrying on business of negotiating and granting of license or persons collecting and distributing royalties in respect of copyright works is fundamental to the competency of the action and the court to proceed with the suit”, and further noted that “ s.17 of the Act does not, oust the subject matter jurisdiction of the court or derogation from the rights of the citizen, it only postpones the time for instituting a suit which means go and comply to the provision and get back to the court”
494
Section 39(2) Nigerian Copyright Act
495
Section 39(2)b Nigerian Copyright Act
496
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approval by an organisation carrying on the duties of a collecting society is an unlawful act.497 It was further noted that to commence an action for infringement of copyright, any person carrying out the duties of a collecting society must represent more than fifty owners of copyright in any category of works protected by the Act.498 The powers to make regulations to give effect to the purport of the enactment was also provided and further to this provision, the Copyright (Collecting Societies Regulation) was issued in 1993 and repealed in 2007 when the Copyright (Collective Management Organisations) Regulation was issued and published in the official gazette of the Federal Republic of Nigeria. A detailed analysis on the provision of the Act and regulations has been given in Chapter three above.
The striking features of Nigeria’s regulatory and operative structure for collective administration lies in its approval powers and the powers to limit actions for infringement of Copyright. The approval powers of the Commission is aptly captured in Section 39(4) where it provides that “it shall be unlawful for any group of persons to purport to perform the duties of a society without the approval of the Commission as required under this section of this Act”. The powers of limitation are provided for at Section 17 of the Act, which provides that “no action for the infringement of copyright or any right under this Act shall be commenced or maintained by any person… unless it is approved under section 39 of this act to operate as a collecting society or it is otherwise issued with a certificate of exemption by the Commission”. As demonstrated earlier499, these two issues have thrown up several legal battles which have been resolved on the one hand in favor of the statutory provisions, thereby re- affirming that prior approval by the Nigerian Copyright Commission is required by any person or organisation desirous of carrying on the duties of a collecting society 500 and that without such approval, no action may be commenced or maintained for Copyright infringement as the party doing so would lack the
497
Section 39(4) Nigerian Copyright Act
498
Section 17 Nigerian Copyright Act.
499
See Chapter 4 above.
500
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requisite locus standi.501. On the other hand, it has also been held that the said approval is not required502 and thus the right to commence and maintain actions against Copyright Infringement is unfettered since jurisdiction is not affected.503 It has been observed that since the introduction and intervention by the Commission of its regulatory and oversight responsibilities over collective administration in Nigeria, there have been challenges particularly in the administration of rights in music works and sound recordings. The outcome of the problem has been the inability of right owners to be paid royalties for the exploitation of their works504. In contrast to the lingering problem, the newly approved collective management organisation, COSON, in December 2011, was reported to have paid out royalties to the tune of N25.7 million to right owners.505 The Commission considers this as a sign of seriousness on the part of COSON and as such commended the organisation for its proactive stance and its determination in ensuring that the core values of a collective management organisation are maintained as well as pursing the interest of right owners, as evidenced through the payment of royalties to right owners.506
501
Compact Disc Technologies V MCSN, supra.
502
MCSN V Adeokin supra On Appeal at the Court of Appeal.
503
See MCSN V Details Suit No. FHC/L/CS/934/95, MCSN v Guinness Suit No.FHC/L/CS/904/05, MCSN v Vee Networks FHC/L/CS/707/05
504
See 2006-07-22 Saturday Punch A3
505
See http://ynaija.com/2011/12/20/copyright-society-pays-nigerian-musicians-royalties- worth-millions/ where Chi Ibe noted that “The highlight of the meeting was the announcement that the sum of N25, 720, 588.20 was available for immediate distribution to all members of COSON whose names were on the society’s register as at 19 May, 2011, if so approved by the AGM. The scheme was indeed approved by the members and the distribution started at the venue amidst singing, dancing and jubilation as hundreds of musicians stood in line, collected their royalties peacefully and thanked the Almighty for witnessing the day when such could happen in Nigeria.”
506
See NCC Press release NCC/ADM.532/IPR23A 16-03-2012 where the Director General noted that “We are pleased to note that COSON, the organization representing right owners of music and sound recordings made its first royalty distribution to its members since its approval in 2010, in December 2011. We have monitored the performance of the organization and are satisfied with the present state of operations.”
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