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  • Writer's pictureO. Olowo-Ake

Making Copyright And Other Intellectual Property Protection Work For Nigeria And Nigerians.

By

*Orits WILLIKI


There is no doubt that Nigeria has robust laws and regulations ensuring the protection of copyright and other Intellectual Property, particularly in the following extant laws:

1. Copyright Act (Cap. C.28 Laws of the Federation of Nigeria) 2004.

2. Copyright (Collective Management Organisations) Regulations 2007

3. Trademarks Act (Cap. T13 Laws of the Federation of Nigeria) 2004

4. Patents and Designs Act 1970.


These laws gave substantial protection to owners and proprietors of copyright, trademarks, patents and designs and other intellectual property owners.

For the purpose of this short paper, we shall focus on protection of musical works and sound recordings under the Copyright Act.


For instance, the Copyright Act gave the creators of musical works and sound recordings or the owners of the copyright the right to control the public performance of the works, the reproduction of the works, the broadcast of the works, the adaptation of the works among other controls which the owners enjoy over the works.


The Act also provides easy means and processes for the owners to exercise and enjoy the benefits derivable from the exclusive control granted to them by law. The means and processes are contained under Sections 6, 15, 16 and 39 of the Copyright Act 2004 and the Copyright (Collective Management Organisations) Regulations 2007. The implementation of Sections 6, 15, 16 and 39 of the Act and CMO Regulations 2007 ensures that no exploitation of musical works and sound recordings occur in Nigeria without passing through the rudiments of being formally or legally authorised either directly by individual owners of copyright or through an approved and licensed collective management organisation (CMO)/collecting society.


Theoretically, this is a very good legal framework, but the situation is entirely different in practice due to the gap between many individual creators of works and the collecting society/CMO on the one hand, and the gap within the relevant laws protecting intellectual property and operations of relevant government agencies, which mostly operate in isolation of the others.


While the right of individual author, composer or copyright owner is recognised in law, particularly under Sections 6, 15 and 16 of the Copyright Act, the exercise of the right is very limited. While it is possible that a person who wishes to exploit the musical works of a composer may approach the composer for the permission to use the work, the composer is practically not able to go after other thousands of people and entities using his works in several locations across the city, state or nation, not to talk of the whole world.

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To make things easy for the composer, the law under Section 39 of the Copyright Act 2004, provides for the setting up of collective management organisations, CMOs, (collecting societies), where the composers come together as members and invest the societies with the power to act on their behalf.


The CMO also serves as the government machinery to fulfil its obligations under international conventions and treaties to which the country acceded. For instance the Berne Convention for the Protection of Literary and Musical Works, the Rome Convention and WIPO Copyright Treaty to which Nigeria acceded placed obligations on the Government of Nigeria to protect foreign works within the Nigerian territory just as Nigerian works are protected without discrimination among other responsibilities placed on the Commission by the Copyright Act.


To ensure that the obligation is met, the Government under the Copyright Act established the Nigerian Copyright Commission and vested it with the power to approve and license collective management organisations to ensure the protection of works of all authors, composers and creators in Nigeria without discriminations.


The implication of this arrangement is that much as it is easy for those using copyright works to avoid fulfilling their obligations to the individual author, composer or copyright owners, it has become difficult for such users to avoid or escape the long reach of a CMO.


In the past, it was easy for a radio station to ban the music of a particular musician for daring to ask for the respect of his copyright in his music such as was done to Fela Anikulapo-Kuti by Radio Nigeria in the 1970s, it is no longer possible for a radio station to ban a particular musician’s work just for the reason that such musician was asking that his copyright be respected. With the operations of CMOs the composers, authors and copyright owners are protected from such victimisation.


The next question that must be considered is whether the CMOs are strong enough to carry out the onerous responsibilities placed on them, particularly in Nigeria and many developing countries.


Most of the CMOs operating in sub-Saharan Africa are operating under the influence of the advanced CMOs of the developed countries of Europe, Asia and America. The advanced CMOs, such as American Society of Composers, Authors and Publishers (ASCAP), Societe des Auteurs, Compositeurs et Editors (SACEM), Performing Right Society Limited (PRS), to mention just a few, which have been in existence for hundreds of years took many years before they could get the full grasp of their challenges and be able to get to their present stages, would not give the developing and fledging societies in Africa the necessary encouragement or time for the societies to catch up. Before the last 10 or 20 years, the American and many European countries do not bother about the creative industries in Africa. Hence the African territories were balkanised mostly between the British copyright Societies, particularly the PRS and the French societies, mainly SACEM.


Thus, most English African territories were known as PRS’ territories and French-speaking African territories were SACEM territories. Except, maybe, South Africa’s SAMRO, there is no African English-speaking territory whose society (CMO) has direct link or reciprocal representation agreement with any of the American societies such as ASCAP, BMI, SESAC, Harry Fox Agency, etc. Most American interests in Africa were represented by PRS vis-a-vis, African artistes’ interests were represented in American and French territories by PRS. It was the same arrangement with SACEM for French speaking African territories.


Recent experience has shown that many African CMOs are showing signs and evidence of capability to operate independently, albeit within the structures created by the developed countries’ CMOs. The main structure which is an umbrella body for CMOs across the world is known as the International Confederation of Societies of Authors and Composers (CISAC).


It was one the cardinal rules of international relations that each country controls what happens within its territory. This rule was before the last 10 years respected by CISAC which encouraged CMOs to be formed and developed in many developing countries. This culture was also supported and funded by the World Intellectual Property Organisation (WIPO). However, in the last 10 years, we have witnessed the gradual collapse of these territorial walls, particularly within the creative industries. Many business entities are opening off-shore offices in Africa and in particular Nigeria, without abiding by the rules or laws guiding residency and right to work and do business in Nigeria. Some open offices in the territory without registering their companies in Nigeria or with Nigerian relevant government agencies such as the Corporate Affairs Commission.


Some of these foreign businesses include but are not limited to “YouTube”, “Facebook”, “Tik-Tok”, “Spotify”, SONY, Audiomack, Iroko TV, to mention just a few. In the course of their activities, they get Nigerian creators and stars to affiliate with and get membership of foreign CMOs. Many award-winning African musicians are not members of their countries’ CMOs, including Nigeria. They rather take up direct membership of PRS in the UK, ASCAP, BMI or SESAC in the USA or SACEM in France. This type of affiliation leaves the African CMOs with few formidable voices to fight for the interests of creators in the country with our creative economy being exploited to the disadvantage of our artistes and government.


The fallout of the above-described scenario is that the benefits of having copyright protection laws in Nigeria and other African countries are not fully delivered to our creators and the government. These can further be examined in the following:

1. The Nigerian artistes, though are happy receiving either quarterly or yearly distributions in the form of royalties in foreign exchange direct to their accounts, they do not fully participate in the decision making on matters affecting their Creative and economic interests. They seldom attend the meetings of the foreign CMOs to which they are affiliated if ever they get invited to such meetings.

2. Their relevance to the foreign CMOs is limited to their popularities, as soon their popularities begin to diminish, so would their membership standing begins to diminish until they are eventually terminated.

3. The revenue due to government in form of Personal Income Tax are not generally paid.

4. Revenues due to the Federal Government in terms of Value Added Tax and Withholding tax are not paid.


To curtail the foregoing leakages, the following actions should be considered.

1. All Government Regulatory and Enforcement Agencies operating within the Nigeria creative sectors and those ancillary to them should work closely together for the benefit of the creators and government.

2. Nigerian Immigration Laws should be adequately applied to ensure that only qualified people are allowed to work and do business in the country.

3. Nigerian government agencies such as Nigerian Communications Commission (NCC), National Office of Technology Acquisition and Promotion (NOTAP), National Broadcasting Commission (NBC) and others should work closely with the Nigerian Copyright Commission (NCC) and CMOs, particularly MCSN, to ensure that organisations such as Facebook, Tik-Tok, Likee, Netflix, Youtube, Instagram, WhatsApp, Spotify, Boomplay, etc, operating in Nigeria are adequately licensed to operate within the territory, with their software also licensed appropriately and the intellectual or creative works transported through their platforms and forming the content of their operations are all licensed.

4. All relevant agencies and CMOs should collaborate to educate our creators on the need for them to understand that their wealth lies more in the Nigerian nation where their works are most exploited than looking up to foreign nations.

5. All regulatory impediments or bottlenecks affecting the smooth operations of approved CMOs within and outside Nigeria be removed for Nigerian CMOs to operate effectively and efficiently with its counterparts across the world.

6. Government should be aware that exporting our cultural and creative talents without government involvement would amount to cultural creative slavery or colonialism as time goes on. With the popularity of Nigerian music and movies across the world the Government should be interested and involved in the business and investment aspect of the sector.

7. Government should ensure that all exploitation of creative works done within the territory of Nigeria must be paid for in Nigeria through Nigerian legal entity.


*Orits Williki is the Chairman of the Musical Copyright Society Nigeria Ltd/Gte (MCSN)


This paper was presented at our policy dialogue, titled, 'An Agenda For The Next President', held in Lagos on February 7th, 2023.


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