THE COLLECTING SOCIETY: A PANACEA FOR PIRACY
AND DEVELOPMENT FOR THE COPYRIGHT INDUSTRY
IN NIGERIA
Written By
’Segun Aluko
*INTRODUCTION
Piracy, infringement, and unauthorized use have always been recurring problems militating against Intellectual Property and its Owners as well as the managers. There is no gainsaying the facts that just as Intellectual Property Rights owners deserve to be rewarded for their years of toil on the one hand, while the public on the hand is invariably, assured of the much needed innovations.
[1]. In achieving a balance in view of the above, the need for an all-encompassing and more effective solution is therefore needed.
This article looks at the role of the collecting societies in creating a balance between the Intellectual property and the economic rights thereof of the Property Rights Owners and the obvious needs of the populace which constitute the surging mass of users in bringing about a legitimate use of these rights thus, making remuneration available to the IPR owners being the value for their hard work and skills in making the world a better place.
THE CONCEPT OF INTELLECTUAL PROPERTY RIGHTS
Intellectual property is that area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill
[2]. The law deters others from copying or taking unfair advantage of the work or reputation of another and provides remedies should this happen
[3]. The concept of intellectual property covers three major areas amongst others:
i. Copyrights,
ii. Patents & Designs,
iii. Trade marks and others.
The concept of copyright is quite distinct from other forms of intellectual property in that while others are creation of ideas, copyright is the expression of those ideas. Copyright covers the rights of the owner in literary, musical and artistic works including dramatic works, broadcasts and sound recordings. A trademark covers marks in respect of goods as provided for in the relevant statute
[4] while the Patents cover inventions and technical know-how.
THE CONCEPT OF COPYRIGHT
Copyright as a form of intellectual property right has spanned centuries. The concept of copyright evolved as a result of a frantic search for the means to adequately protect the interests of authors and publishers. Obviously the profession of author is extremely ancient and throughout recorded history, people were employed, artists, sculptors, dramatists and composers
[5]. The authors therefore get remuneration or lodging in exchange for their services. The need to protect the author’s rights had overtime been recognized as ethical. Unauthorized copying had therefore been frowned at in the Old England and now legislations against it abound all over the world.
Copyright is that area of intellectual property law which covers the right of the IPR owner, producer or creator to exclusive use of his/her product free from any use by any other person whatsoever. Copyright basically means “the right to copy”
[6].
The concept of copyright protects three major properties namely:
- literary works;
- artistic works;
- Musical works (sound recording and broadcast)
[7].
It must be noted that copyright will not suffice on a work if it does not satisfy the characteristics of a work. It is very important that the work is original
[8] as copyright will not hold on a copy of a work. The work must be original, that is, a product of the supposed owner’s intellect, skills and hard work as copyright will not protect a work which absolved the owner of adequate skill and work in its production
[9].
Moreover, the work must be in a fixed form. By this, copyright will not subsist in an idea
[10]. It is not the responsibility of the court; in fact, the court would not waste its time on cause for the protection of idea. The work must be fixed. Although intellectual property unlike the real property and other personalties are not tangible, it must be in a nature of being easily perceived, communicable and received
[11].
Furthermore, it should be noted that unlike other intellectual property rights
[12] which require registration in the relevant commissions or registries of the State, registration is not totally necessary for copyright to subsist on a work, the work need only be fixed and original. A further analysis of the provisions of section 24 of the Act provides that the publisher must endeavor to open a register for the name of an author, the title of the piece, date it was released and so on; with the National Copyright Commission. This however is in no way certificate of registration for issuance of copyright to subsist on a work but just for record purposes in the archives of the national library.
Copyright law frowns at any attempt at infringing on the rights of an author and section 15 & 16 of Copyright Act provide for stringent measures and penalties to deal with such infringers and pirates. Moreover, the courts (the Federal High Court)
[13] have, overtime, pronounced on these matters employing stringent orders on counterfeiters and infringers and meting out punishments. These orders are: Anton Piller Order, Interlocutory Injunction, and Mareva Injunctions, etc.
It must however be noted that as great as the exclusive rights conferred on a copyright owner, there are exceptions. In the Copyright Act, Schedule II thereof, there are provisions from (a) – (s) of exceptions to infringement on copyrights. These exceptions in a way, ratifies the Article 27 of Universal Declaration of Human Right 1947 which allows for free participation in learning and exchange of culture, arts and so on. These exceptions have overtime been classified as a defence in any action on the infringement of Intellectual property and this is called fair use
[14].
The concept of fair use has been developed over time to absolve the user of any liability whatsoever for in any action for infringement. Fair use has been used interchangeably as permissible use. According to De Wolf
[15], fair use has been used as “use technically forbidden by law, but allowed as reasonable and customary on the theory that the author must have foreseen it and tacitly consented to it”.
As earlier discussed, these exceptions or fair use have been statutorily provided for in the Nigerian Copyright Act, and these kinds of use will absolve the alleged infringer of any liability or claim made against him by any right owner whatsoever.
It is however disheartening that in spite of all measures like the statutory provisions
[16] which give fair use (right of use), there had been reported cases of infringement of copyright, piracy and other form of unauthorized use by the public. Nigeria, as a Nation, has incessantly waged war against pirates whereby the 15 Optical Disc Producing factories in Nigeria and other factories will now have to register with the National Copyright Commission
[17]. Recently the Optical Disc Regulations was signed into law by the Minister of Justice
[18] to counter the nefarious acts of infringers and pirates whereby the 15 Optical Disc producing factories in Nigeria and other prospecting factories will now have to register with the NCC to procure license, require the plant’s use of Source Identification Code (SID) (mastering LBR Code & mould Code) on all discs produced and sold in Nigeria, and also to empower the government authorities to inspect plants and take deterrent action against any plants found to be operating outside the law
[19]. There had been an earlier regulation positioned to counter the acts of pirates which was launched by the NCC in its campaign in 2005 which is called Strategic Action Against Piracy (STRAAP).
The Performing Musicians Association of Nigeria (PMAN) under its immediate past chairman – Charles “Charley Boy” Oputa had been reported in the electronic media to have organized and indeed engaged in public outcry and even unexpected visits to the Alaba International Market, Lagos to confiscate the pirated CDs and burnt copies worth multi-million Naira. All these and many more had been exercised to counter acts of infringement and piracy. However little or nothing had been considered with respect to the roles of collecting societies in Nigeria.
The only collecting society recognized in Nigeria is the Performing & Mechanical Society of Nigeria (PMRS), which was approved by the first NCC chair, Moses Ekpo, back in the 1980s. The incumbent NCC’s Director General, Mr. Adewopo Adebambo, was suspended in November 2005 for several months over the de-certification of another collecting society in Nigeria though not as pronounced as the PMRS, which is called Musical Copyright Society of Nigeria (MCSN)
[20]. However, none of these two collecting societies is actually going headway in countering the works of pirates, neither had they formulated any approach in protecting their member’s interests and intellectual property rights.
What are collecting societies? What are the roles of collecting societies? How can collecting societies counter acts of piracy? How can the collecting societies protect and uphold the rights of their copyright owner members? What does Nigeria stand to gain from collecting societies in terms of foreign exchange? These shall be discussed below.
COLLECTING SOCIETIES
A copyright collective (also known as Copyright collecting agency or collecting society)
[21] is a body created by private agreements or by copyright law that collects royalty payments from various individuals or groups (users of copyright works) for copyright holders. Their authority to license works and collect royalties may either be a part of a statutory scheme or agreement with the copyright owner to represent the latter’s interests when dealing with licensees and potential licensees
By virtue of section39 (8) of the Act
“Collecting societies” means an association of copyright owners which has as its principal objectives, the negotiating and granting of licenses, collecting and distributing of royalties in respect of copyright works”
Section 39(1) provides that:
“A collecting society (in this section referred to as “a society”) may be focused in respect of any one or more rights of copyright owners for the benefit of such owners, and the society may apply to the council for approval to operate as collecting society for the purpose of this Act”
ORIGIN OF COLLECTING SOCIETY
The establishment of the first collecting society predates the adoption of the Berne Convention for the Protection of Literary and Artistic Works in 1886. The Society of Authors, Composers and Music Publishers (SACEM), a French society representing authors and composers was established in 1852 to administer public performance rights in musical works. The emergence of ASCAP
[22] with two rival societies called Performance Rights Organizations (PROs) witnessed the development of collecting societies in United State. In UK, over 13 collecting societies exist in different areas of copyright administration providing services for its members. In Nigeria, the establishment of PCRN in the 1980s brought about the emergence of collecting societies but not much development has been noticed in recent times.
THE RATIONALE FOR COLLECTING SOCIETY
It is a very important reasoning that copyright must take its rightful place in the market place and as an important contributor to wealth creation and national economy
[23]. It is in the opinion of this writer that there is the need to make the artists’ works available to the teeming populace of users as this will counter the wave of piracy and infringement thus making these users, rightful IP users whereby remuneration is made payable to the artist for his skills and time spent in producing his works. According to Copinger & Skone James on Copyright
[24], “collecting society” is generally used internationally to describe the organization set up by the various categories of right owners to administer their rights collectively”. The learned authors went on to consider different rationales for collecting societies.
There is the exclusive rights conferred on authors of copyright works and these rights forbid others to exploit the works without authorization
[25]. Ideally these rights are exercised on individual basis by agreement between the copyright owner and the individual user of the work. However, “there are certain rights which are very difficult if not impossible to exercise individually and in respect of which right owners have for many years banded together to exercise rights on a collective basis.
[26] It will be quite a horrendous task for individual users since this latter sect spreads over a billion all over the world. For an effective licensing of these works, the need for a viable system of copyright collective cannot be overemphasized. Inasmuch as our generation has been overwhelmed though to the greater advantage by computer technology
[27], such as reprographic reproduction of literary and artistic works, commercial rental, satellite broadcasting, cable distribution of television programmes and films and use of computer to digitize and store protected works in data bases and all, here is deemed to be a growing population of users of these works all over the world and if licensees are not easily obtainable, there are bound to be infringement and piracy. Copyright collective is sure the answer.
Beside the use of an author’s work in the form of CD, cassette and VHS, copyright also covers the public performance of an author’s work.
[28] Often times, we have witnessed performances of an artist’s works on TV, Radio and even in Night Clubs and other gatherings. These uses are infringements (once the work is protected by lodgment with the NCC)
[29] until a proper license is obtained by such user. The appropriate way of use is none other than the collecting societies. However, infringement with respect to public performance, sound recording and broadcast will forever persist if the right of use of these works is not made available for a token to the wide populace of users. ASCAP
[30] recognized the need for these and consequently, the group of artists came together to form the body for ease of collection of royalties payable to its members and easy availability of the works to the users. The BMI
[31], a rival society like SESAC
[32] (both in United States), saw the need to protect the broadcast media and enable ease of collection of royalties. These groups are doing very well in United States today in their scope of operation.
PURPOSE OF COLLECTING SOCIETIES
The purpose of collecting societies is not far-fetched from its rationale. It is worthy of note that the over 140 million population of Nigeria increases everyday, so also is the entertainment industry. Besides, works of art – literary, artistic and musical – sound recording, books, broadcast, abound our country in large mass hence the probability of wide use among the wide populace of our country. In order to forestall counterfeiters of these works, the emergence of the collecting societies is a welcome idea.
Although collecting society is an expensive and complex system of collective administration, it’s need according to Professor Shane Simpson
[33], is simple enough: “the negotiation, collection and enforcement of public performance income in relation to small Rights is most efficiently handled on a collective basis”.
Moreover, it is noted that in view of the establishment of collecting society, there would most likely still be infringers and pirates and there can be hordes of them. The collecting society offers greater opportunities for right owner to establish, harness and prosecute his/her rights judiciously through legal representation and social services
[34] to its members.
ADVANTAGES OF COLLECTING SOCIETIES
Although it is a very complex system of administrative collection, copyright collective has been proven to be economically viable and essential. In 2005, ASCAP collected $750 million in licensing fees and distributed $646 million in royalties to its members, yielding a 12.5% operating expense ratio, the lowest of any performance rights organizations in the world
[35].
Furthermore, the collecting society makes it easy to issue licenses to rightful users, virtually, or part of the entire owner’s work depending on the right in question. These licenses are obtained on a collective basis which brings in royalties on collective basis. Imagine the populace of internet users and visitors to iTunes
[36]. For those users, would it have ever been possible for IP owner to issue licenses to all these users individually, unless by some magic? iTunes and other download websites obtain licenses from collecting societies and liaise with them on payment of royalties depending on the rights in question.
The licensing of copyright works through the collecting society gives the owner leverage as against doing it himself. It affords a stronger and better bargaining.
Based also on the convention on IP which Nigeria is signatory to, Nigerian artists are also entitled to the principle of national treatment provided for in the Berne Convention of 1886
[37]. The collecting societies operating in Nigeria can also collect royalties for their members through their foreign counterparts by virtue of the principle of national treatment. They can also license works of foreign members in Nigeria as it is done by their foreign counterparts. The collecting societies can also monitor foreign performance of member’s works in all media, to ensure that members are being paid accurately. With the availability of IP committed professionals, the presence of collecting societies will effectively bring in foreign revenues and provide the highest level of services to its members. By this, theirs is a bipartite agreement between Nigerian collecting society and the foreign counterpart and so also there is a tripartite agreement whereby the collecting society acts as agent for its members in relation to agreements or transactions entered to with the foreign counterpart.
Having dealt with the advantages of collecting societies, it must be noted that for effective operation of these societies and in order to create a balance so as not to foster monopolistic tendencies, the need for proper regulation by the government is sine qua non. Section 39 of the Act gives provisions which an organization must meet to operate as a collecting society, and also gives the NCC the power to regulate collecting societies in Nigeria. Although, 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 protect the interest of that class of copyright owner, there is also the need to ensure that the society is not availing itself unduly of the monopoly. The government through its NCC must ensure proper and adequate supervision to check abuse of the monopoly position of collecting societies. This will definitely protect the public interest. Also in protecting the right owners, it should periodically check the books to ensure the right owners are not defrauded of their due as this would defeat the whole purpose of the society.
THE ROLE OF COLLECTING SOCIETIES
Generally, the “collecting societies are organizations that receive assignments of copyright works, performers’ rights, license their use on behalf of right owners and distribute royalty payment due to right owners”
[38]. The collecting societies act as repository of works and categorise these works and charge tariffs based on the exploitation of the work and these different types of use attract different level of tariffs. Therefore, the user makes the payment to the collecting society based on the type or extent of use of his/her works
[39].
The role of the collecting society is indeed a complex one. The rights of the author of a copyright work are better managed by the collecting society. The society operates a database of artists with different genres of literary, artistic and musical works depending on which class of rights the society decides to manage. Beside the management, the collecting society issues licence to copyright users; like the broadcast media, newspaper prints, record companies, retailers who will now exploit the use of this work. In licensing the above, they in turn pay remuneration in form of royalties. These royalties are calculated based on the exploitation or level of use of the author’s work. In calculating this, the collecting society puts in mind the wide use of the work, the commercial viability of the work and many more. Royalties are then distributed based on exploitation of work to individual authors and artists.
It is however disheartening that as laudable as the concept of copyright collective is, Nigeria has not be able to put it to great use. There is presently at the Federal High Court, Lagos Judicial Division, the matter instituted by one of the two collecting societies in Nigeria – Performing & Mechanical Society of Nigeria (PMRS) against the NCC and others challenging the registration to practice of another one – Musical Copyright Society of Nigeria (MCSN). All efforts expended by parties to settle out of court did not prove worthwhile at least for now. Recently, MCSN granted two prominent traders in Alaba International Market, Lagos licence to produce their members’ CDs. We have also heard of one of them going after some broadcast media asserting the members’ rights to their works.
Some stakeholders in the copyright industry had advocated that the two societies should be consolidated that they might fight a common purpose. It looks good enough, but what about the ego of the two leaders?
[40] But if there are three viable performing rights societies in United States competing for artists and all doing well, then what is the problem with Nigeria? In Brazil, there are 12 societies within the same genre of copyright works. These are competing societies that give the author much choice to choose from. Why then should there be problem in Nigeria? There is much need for all to look forward in the fight against the common enemy, that is, piracy: a fight that can be fought by the societies from different sides. If an artist chooses one of these societies to represent him/her, then the other one should look elsewhere. This does not give way to any problem since the user knows who to deal with and who deserves the royalties. The need for qualified professionals in the management of the copyright collective can not be overemphasized. If we make this work in the musical industry, then we can do so in the literary works, artistic works and even broadcast and sound recording.
[41]So also, the role of the lawyer as a professional in this discourse is very important. Lawyers are the most needed in any economic transactions. The licensing; negotiation, payment and collection of royalties; legal representation; assignment, testamentary disposition of these copyright works are such transactions. Although collecting society constitutes right owners as members but its workings, operations et al is the work of lawyers. This will in everyway bring about development of collective system of royalties and also increase the GDP which affects the economy. The collecting societies will remit the profits accrued from the royalties and same will be subject to tax. In this way, funds are generated by the government and our country is better at large.
CONCLUSION
From the above, we can conclude that one effective way to cure acts of counterfeiters and infringers is the copyright collective. A complex system though it is, it creates a healthy balance between the Intellectual Property Rights Owners and the general public of users. Once these works are available to the public legally, it brings about greater development of intellects and exploration of ideas. The two existing collecting societies in Nigeria should be allowed to operate separately if they so wish. In fact more societies should be licensed by the NCC since this affords healthy competition. The artist can choose the society that suites him/her most. Besides the music industry, other genres of the copyright should also be explored and collecting societies should spring up there as well.
Segun Aluko
July, 2007
* Segun Aluko is a 4th year Student of the Faculty of Law, Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria; briefly interned with the Law Firm of Aluko & Oyebode (Barristers & Solicitors), 35 Moloney Street, Lagos, Nigeria
[1] See Article 27, Universal Declaration of Human Rights (1948-1998)
[2] Bainbridge, David; Intellectual Property 4th Edition (1999)
[3] Ibid
[4] Trademark Act Cap. T 13, LFN, 1990
[5] Cornish, W.R.; Intellectual Property 4th Edition Sweet & Maxwell (1999), p
[6] Ibid
[7] Copyright Act Cap C28, LFN, 2004, Butterworths, S.6
[8] Bauman vs. Fussell (1978) RPC 485
[9] Ravenscroft vs. Herbert (1980) RPC 193
[10] Designer’s Guild vs. Russell Williams (2001) 1 All ER 700
[11] Copyright Act, op. cit., S. 7,
[12] Trademarks, Patents and Technical Know-how
[13] Since the issue of Copyright is in the Exclusive list in the first part to the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
[14] Adedeji, A.A., An Examination of the Defence of Fair Use to Copyright Infringement- Modern Practice Journal of Finance and Investment Law
[15] An Outline of Copyright Law p. 143 (1925), ibid at p.
[16] Copyright Act op. cit. Schedule 2
[17] See The Guardian Newspapers, Thursday April 12, 2007 at p. 80
[18] Intellectual Property Alliance: 2007 Special 301 Report Nigeria.
[19] Ibid
[20] See Ozolua Uhakhene & Richard Eghaghe, NCC declares MCSN illegal nullifies Adewopo Approval, (Daily Independent Newspapers, Nov. 25, 2005)
http://www.independentng.com/life/lsnov2505001.htm[21] The Copyright Collective, www.wikipedia.org
[22] ASCAP was established in New York city on February 13, 1914
[23] www.ipfrontline.com
[24] Kevin Garrett, Jonathan Rayner James, Grillian Davies, (1999): Copinger & Skoner James on Copyright, 14th Ed. Vol.1 (Sweet & Maxwell); London,
[25] Ibid, at p.1490
[26] ibid
[27] Ibid at p.1490
[28] Copyright Act, op. cit. at Sections 6-8
[29] ibid., at S.37
[30] The American Society of Composers, Authors, & Publishers, USA
[31] Broadcast Music International
[32] Society of European Stage Authors & Composers
[33] Professor Shane Simpson: Role of Collecting Societies in Australia, A Presentation to the Government of Western Australia in April, 1996. www.shanesimpson.com
[34] Skone & Copinger op. cit. at p.1492
[35] Collecting Societies, www.wikipedia.org
[36] iTune is a website providing downloadable audio and music videos for its traffickers.
[37] Berne Convention for the Protection of Literary & Artistic Works 1886
[38] Shannon, Victoria: Royalty “Collecting Societies” –
www.iht.com/articles/2007/02/28/business/ptend01.php[39] Business & Commercial Equitable Remuneration Rights under Copyright, Designs & Patents Act 1988, (3/13/2007) =
http://www.gillhams.com/articles/197.cfm[40] Tony Okoroji for PMRS, and Oritz Wiliki for MCSN.
[41] In United Kingdom, there are more than 15 collecting societies spread over many genre of works including the newspaper articles, performances, music, artistic works, etcetera.
