Originally published in the Punch Newspaper on 15th March 2018: https://punchng.com/new-copyright-bill-and-artistes-rights/

In December 2017, the Federal Executive Council approved the new Copyright Bill which, after passing through the necessary legislative process, will repeal the Copyright Act of 1988 (first promulgated as a decree). There is no doubt that this move is commendable for being an effort at aligning the copyright protection and administration regime in Nigeria with domestic and global developments. According to the bill, the policy consideration behind it is to, among other things, “effectively protect the rights of authors to ensure just rewards and recognition for their intellectual efforts while also providing appropriate limitations and exceptions to guarantee access to creative works, encourage cultural interchange and advance public welfare”.

While this definitely sounds like good music, we should not be too quick to dance to it without considering some of the trade-offs that have been made in the bill, and whether they are justifiable under our constitution. Particularly, this article focuses on the provisions of the bill that deal with the administration of “collecting societies” or “Collective Management Organisations” and how it affects the fundamental rights to freedom of association and property of copyright owners.

As you may already know, the whole point of the existence of CMOs is to make it easier for copyright owners to license their works. CMOs are supposed to simplify: (a) the process of licensing for prospective users of copyright material who otherwise need to identify and locate the copyright owner and negotiate a licence on an individual basis, and (b) the collection of royalties by the copyright owner. Indeed, the importance of CMOs comes to light when one imagines what it would take Wizkid to have to deal with every television station, radio station, restaurants, clubs, shopping malls etc. for the purpose of granting each a licence to play his songs and collect royalties. This is why no one can reasonably question the practicability of letting artistes grant CMOs an umbrella licence to act on their behalf. The CMO thus stands as an agent for the copyright owners in relation to the general users of their works.

However, as useful and desirable as this arrangement is, it is only logical that the authority of the CMOs to so act must come from the copyright owner himself, either by voluntarily becoming a member of a CMO or otherwise expressly authorising the CMO to act on his behalf. This lack of the artiste’s authority is the basis for my view that the manner by which CMOs are provided for in the new copyright bill infringes on the fundamental right to freedom of association of Nigerian artistes as guaranteed under Section 40 of the 1999 Constitution (as amended) and also their right to property (see Section 44 of the Constitution).

Section 74 (10) of the bill states as follows:

Notwithstanding the provisions of this Act or any other law, a CMO may issue licences permitting the use of works of owners of copyright who are not members of the CMO:

Provided that: (a) such works are of the same category as works for which it is approved to issue licences; (b) the owners of copyright in such works are not otherwise represented by any other CMO; (c) the owners of copyright in such works have not specifically opted out of collective management of their rights and (d) the CMO does not discriminate against such owners in terms of the tariffs for the use of their works and the royalties paid to such owners.

Clearly, parts of the foregoing provision run contrary to our constitution, especially sub-section (c). Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides:

“Every person shall be entitled to assemble freely and associate with other persons, and, in particular, he may form or belong to any political party, trade union or any other association for the protection of his interests…”

From the foregoing, it is clear that according to this bill, whether or not copyright owners choose to be members of a CMO, the CMO will act on their behalf. Thus, in effect, all copyright owners are automatically deemed members of an approved CMO and have to expressly opt out if they do not want the CMO to act on their behalf in collecting royalties. The bill goes even further to empower CMOs to issue licences to third parties permitting the use of works of copyright owners, all without the permission of the copyright owner.

It is submitted that forcefully adding copyright owners into an association and then purporting to grant them an option to opt out is a backdoor method of infringing both their right to freedom of association and right to property. Fundamental human rights should be expanded, not narrowed down as is done in this bill. It is only right that one ought to be asked for a confirmation first before being added into a group (especially one that affects his right to property). A CMO is neither a Facebook group nor a trade union. Royalties constitute the majority, if not the totality, of the income of some artistes and to give a CMO the right to collect those royalties without the express authorisation of the owners is daring.

At any rate, “it is settled law that expropriatory statutes which encroach on a person’s proprietary rights must not be construed strictly against the acquiring authority but sympathetically in favour of the person whose property rights are being deprived” (see Provost Lagos State College of Education v. Edun [2004] 6 NWLR (Pt. 870) 476 at 509).

This bill provides no formula or methodology for remitting royalties collected on behalf of artistes and leaves same to the discretion of the CMO. It is not hard to foresee a situation whereby a CMO can claim that it did not remit royalties to some copyright owners because it did not have their contact information or other data of copyright owners since they are not members. Also, since there is no way for the non-member copyright owners to know that a CMO has collected royalties on their behalf, they cannot hold the CMO accountable.

With all due commendation for the government’s laudable plan to fight piracy in the country, this is not the only problem in the entertainment industry. Automatically, adding artistes/copyright owners into a group is even worse than piracy, as it infringes on our artistes’ fundamental human rights. It is submitted that artistes, just like everybody else, should have a say in what organisation they want to join and/or who they want to manage their royalties.

In conclusion, it is submitted that the Copyright Commission should grant more licenses to organisations who have exercised their fundamental right to associate and who meet all the legal conditions as same would allow copyright owners more options to choose from. I believe this will better serve the policy consideration, protect the rights of authors and ensure just rewards and recognition for their intellectual efforts while also guaranteeing access to creative works and advancing public welfare. And perhaps more importantly, this will be in compliance with Chapter 4 of the 1999 Constitution.