Month: August 2013

A Summary of the Nigerian Law of Copyright

/ Scribe of the Tword / 6 Comments

 

This piece summarises the Nigerian Law of Copyright, with a particular focus on literary and musical works.

 

According to the Copyright Act of Nigeria, the following shall be eligible for copyright-

(a) literary works; (which includes, irrespective of literary quality, novels, stories and poetical works; plays, stage directions, film scenarios and broadcasting scripts; choreographic works, computer programmes; text-books, treatises, histories, biographies, essays and articles; letters, reports and memoranda; lectures addresses and sermons; and other similar works)

(b) musical works; (which means means any composition, irrespective of musical quality and includes works composed for musical accompaniment.)

(c) artistic works;

(d) cinematograph works;

(e) sound recording; (which means the first fixation of a sequence of sound capable of being perceived aurally and of being reproduced, but does not include a soundtrack associated with a cinematographic film.)

(f) broadcasts.

A literary, musical, or artistic work shall not be eligible for copyright unless-

(a) sufficient effort has been expended on making the work to give it an original character;

(b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device (e.g. on paper, stone, on a computer hard-drive, on a blog-hosting server).

 

Copyright in a work shall be exclusive right to control the doing in Nigeria of any of the following acts (for literary or musical works):

(i) reproduce the work any material form;

(ii) publish the work;

(iii) perform the work in public;

(iv) produce, reproduce, perform or publish any translation of the work;

(v) make any cinematograph film or a record in respect of the work;

(vi) distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement;

(vii) broadcast or communicate the work to the public by a loud speaker or any other similar device;

(viii) make an adaptation of the work;

(ix) do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-paragraphs (I) to (vii) of this paragraph;

 

Copyright in a sound recording shall be exclusive right to control in Nigeria-

(a) the direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording either in its original form or in any form recognisably derived from the original;

(b) the distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan or similar arrangement.

 

WHO OWNS THE COPYRIGHT?

  1. Usually, the author or composer of the work;
  2. If Person X commissions Person Y to author the work (Y not being X’s employee or apprentice), or if Y makes it in the course of his employment, copyright belongs to Y, unless the contract between X and Y states otherwise.
  3. If the work is made in the course of employment in an organisation that issues newspapers, magazines or other periodicals, copyright belongs to the company, unless contract says otherwise.

 

WHO IS THE AUTHOR OF A MUSICAL WORK?

Musical Work usually comprises the Musical Composition and Sound Recording.

Musical Composition consists of the music as written, as well as any accompanying words (lyrics). The sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds into a tangible medium that can be played back.

The author of the composition is the writer and/or the lyricist. Author of the sound recording is the composer(s) or the sound engineer, or both. However, it’s possible for the contract between the composer and the sound engineer to state who owns the copyright.

WHAT IS COPYRIGHT INFRINGMENT?

Copyright is infringed by any person who without the licence or authorisation of the owner of the copyright-

(a) does, or cause any other person to do an act, the doing of which is controlled by copyright;

(b) imports into Nigeria, otherwise than for his private or domestic use, any article in respect of which copyright is infringed under paragraph (a) of this subsection;

(c) exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection;

(d) distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner of the copyright, any article in respect of which copyright is infringed under paragraph (a)of this subsection;

(e) makes or has in his possession, plates, master tapes, machines, equipment or contrivances used for the purpose of making infringed copies of the work;

(f) permits a place of public entertainment or of business to be used for a performance in the public of the work, where the performance constitutes an infringed of the copyright in the work, unless the person permitting the place to be used is not aware, and had no reasonable ground for suspecting that the performance would be an infringement of the copyright;

(g) performs or cause to be performed for the purposes of trade or business or as supporting facility to a trade or business or as supporting facility to a trade or business, any work in which copyright subsists.

 

JUDICIAL RELIEF/REMEDIES FOR INFRINGEMENT

  1. Damages – money, punitvely
  2. Injunction – an order of the court
  3. Account – hand over all the income from unlicensed sales/reproduction
  4. Others (as court deems fit).

 

DURATION OF COPYRIGHT

Type of Work Author Date of Expiration of Copyright
Literary, musical or artistic works other than photographs Known Human Author 70 years after the end of the year in which the author dies.
Known Joint Authors 70 years after the end of the year in which the author dies; ‘death of the author’ taken to refer to the author who last dies.
Anonymous or Pseudonymous Author 70 years after the end of the year in which the work was first published.
Government or Body Corporate 70 years after the end of the year in which the work was first published.
Cinematographic Films & Photographs 50 years after the end of the year in which the work was first published.
Sound recordings 50 years after the end of the year in which the recording was first published.
Broadcasts 50 years after the end of the year in which the broadcast first took place.
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Who’s Covering You?

/ Scribe of the Tword / 5 Comments
Beatles

Beatles (Photo credit: Ricard Lopez 1)

Does it ever happen to you that you catch the last chorus of a song you haven’t heard since you were a child, and because of all the memories that accompany the song, you google it, wikipedia it, youtube it, repeat the video 50 times and discover that it was covered by quite a few artists? Then you listen to all the different versions and see how each person made the song unique to them? No? Ah, just me then.

The song that’s most recently done this to me is “You’ve got a friend”. The song was originally done by Carol King in 1971 and has been covered by at least 10 other artistes since. Apparently, it was also recorded by James Taylor in 1971 and both King and Taylor won grammies for the song in the same year.

I found myself wondering today, whether that’s the mark of a truly great song. Your peers pay you the greatest amount of respect by doing your song and decades letter musicians still think the song is good enough to include on their album. And there are many songs like this – in the days of dixieland jazz, you had Nat King Cole, Ella Fitzgerald, Louis Armstrong, Frank Sinatra and Dean Martin (to name a few) all cover each other’s songs. Songs like Mack the Knife, Cheek to Cheek, Ain’t Misbehaving and Nature Boy.

Inching closer in time, The Beatles wrote so many great songs, they’ve been covered more times than a newborn baby in  winter. Other well-covered songs include Bill Withers‘ Lovely Day, Simon and Garfunkel‘s Bridge Over Troubled Water, Dionne Warwick‘s Walk on By, Stevie Wonder‘s AS (actually Stevie is very heavily covered too), and the list goes on quite a bit. And let’s not talk about Michael and Elvis who people not only cover but actually have acts making a living from aping them.

Today, I had 3 versions of You’ve Got A Friend on heavy rotation – Carole King’s, Don Williams’ and James Taylor’s and I got to thinking if any of the songs we’re jamming today will ever be covered. I know rappers will always look in the archives for hooks to sample but how many songs today will be worth redoing in 3 years? Narrowing the scope of the question, how many Nigerian Artistes  write songs that anyone would want to redo in future? Nigerian songs from the past like Iyawo Asiko, Osondi Owendi, Eddie Kwansa, Bottom Belle, Joromi, Mo fe Mu’yan, have been covered by today’s stars. Are they making music worth covering?

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The COSON Summit on Digital Licensing

/ Scribe of the Tword / 9 Comments

COSON (the Copyright Society of Nigeria) hosted a summit on digital licensing at the Ikeja Protea, on Monday the 12th of August 2013. The purpose of the summit was to discuss the challenges posed to the industry by digital formats for musical works and sound recordings. In attendance were lawyers, record label owners, recording artists, VAS companies (ringtones, caller tunes, etc.), as well as other stakeholders such as representatives of the Record Label Owners Association and the Audio Video CD Sellers Association of Nigeria (AVSAN).

 

The Chairman of COSON, Chief Tony Okoroji, led a panel of moderators that included Efe Omorogbe (Now Muzik), Audu Maikori (Chocolate City), Mark Redguard (Spinlet), Erelu Keji Okunowo (Industry Veteran), as well as a representative of the Nigerian Copyright Commission.

 

After Chief Okoroji took the gathering through the evolution of recording formats from vinyl to 8-track to cassette to compact disc to MP3 and other digital formats, the discussions very quickly split into 3 strains – skilled lawyers/judges are either small in number or not well-known, contracts are not respected, the industry is too fragmented and “disorganised” and offline downloads. Brief summaries and then my 50 kobo on these key issues.

 

LAWYERS AND THE JUDICIARY

One of the problems facing the industry is that many lawyers drafting and reviewing licensing agreements do not have the requisite specialist knowledge. As Managing Partner of G. O. Shodipo & Co, Mr Femi Fajolu, said, “…if you use the same lawyers for maritime as you use for general corporate work, you will sink in the water.” Or, as Audu Maikori said, “Dentists don’t perform eye surgeries.”

 

The danger in non-specialist lawyers preparing specialist agreements is that you are more likely to have bad agreements – the sort that precipitate litigation. Litigation is also an unattractive proposition because apart from its duration (and lack of assets to satisfy judgment debts, in the case of most artists), there is also the problem of not having a sufficient number of judges versed enough to properly settle IP disputes.

 

The summit proposed training sessions for artists and the judiciary. Industry practitioners were advised to contact the Intellectual Property Lawyers Association of Nigeria (IPLAN) for lawyers with specialist knowledge. It was also advised that IPLAN begin to lobby the National Judicial Commission and the judicial institute on appointing judges with IP expertise.

 

Nothing to add, for me.

 

OFFLINE DOWNLOADS

I was unfamiliar with this term before yesterday, though well aware of the activity it describes. Offline downloads occur when, for example, you hand your phone or tablet memory card to a laptop entrepreneur with a library of several thousand songs, some of which he copies onto your memory card for the paltriest of fees; something like 5 or 10 naira per track. Apparently, these guys have become such an issue that even Alaba marketers are complaining. I repeat, Alaba is complaining!!! AVSAN was especially passionate about this, though someone needs to tell them that their model is in terminal decline anyway.

 

This is an extremely tough nut to crack. Proposals considered for tackling it included licensing and persistent raids. However, as they’re literally everywhere, raiding them, no matter how frequently, would be akin to fighting vermin on a 5-acre farm with only a can of home insecticide – very minimal distortion. Licensing would also be tricky. How would pricing be enforced? What would compel people currently evading “capture” to voluntarily come forward for licensing? Should we even really be considering licensing – will the government also license operators of illegal crude refineries, for example?

 

Perhaps market-place executives need to start being held jointly liable for allowing copyright infringement go on within the markets? That way, the local market unions would be compelled to drive such people away from many public spaces. This would probably require a revision to existing laws, however, as people can only be liable for crimes as defined in existing laws.

 

OVER-FRAGMENTATION

“How do you know the real owner of the copyright in a musical work?” “How do you know you have not obtained your license to distribute digitally from the wrong person?”

 

These questions become more relevant as more and more disgruntled artists leave the labels where they became established, to set up their own companies. Inherent in that is the issue of attitudes within the industry to contracts and whether contracts have been properly terminated. However, there is the practical question, where the artist leaves properly, of ownership of new material.

 

Proposals put forward to solve this included mandatory copyright registration (which is not currently required under the law), the establishment of an authentic industry copyright registry and, most worryingly for me, mandatory registration/identification as an entertainment industry practitioner.

 

I think, in considering “sanitising” the industry, a few issues need to be borne in mind. First of all, registration of intellectual property, even where it is mandatory, is only prima facie evidence of ownership. What this means is that anyone who can demonstrate superior title can rebut the title granted by the government in respect of the intellectual property.

 

Secondly, the trend in Nigeria, once older folk start talking sanitisation or regulation is that financial and regulatory barriers to entry begin to crop up. In some cases, the promoters of regulation push for their body to become “chartered”, after which it usually becomes illegal for unchartered people to work within the trade. Caution must be taken that industry veterans do not stifle the creativity of younger participants with whatever remedial actions are agreed upon.

 

Overall, the summit was a useful meeting, the highlight of which, for me, was meeting Laolu Akins. A committee has now been formed to map out an industry strategy to tackle the digital challenge, and we look forward to its report in the coming weeks.

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Can Fashola Deport Non-Lagosian Nigerians?

/ Scribe of the Tword / 9 Comments

“Gentrification” – the transformation of a run-down neighbourhood into a more prosperous one – is a word that one comes across much more frequently these days, in discussions about the government of Lagos State. While the state government, under the leadership of Governor Fashola, regularly receives plaudits for its approach to infrastructural development and the restoration of law and order, it seems that the side-effect is that Lagos is no country for broke(n) men.

In addition to banning commercial motorcycles (“okada”), rickshaws (“Keke Marwa”) and destitute persons from many parts of Lagos, the government has gone further on least 2 occasions to barrack some of these people into buses and forcibly transport them to other parts of the country. The most recent deportation/repatriation took place on the 24th of July 2013, with the “dumping” of 72 persons forcibly transported from Lagos at the Iweka Bridge, Onitsha. Naturally, the reactions have been of deep concern and outrage.

Governor Fashola’s Special Adviser on Youth & Social Development, Dr. Enitan Dolapo Badru, has gone on record in defence of the administration to claim, amongst other things, that the operation was not a repatriation, but the facilitation of a reunion between the destitute persons and their families. Apart from the confirmation that

“…at least 1,708 beggars and destitute have been expelled from Lagos to their various States and countries since January 2013, in government’s bid to rid the streets of beggars and the mentally challenged … the international standard requires the State to reunite them with their families…The end result is to reunite them back with their families. We are not repatriating them out of Lagos, we are reuniting them with their families because once we rescue them, we cannot as a government, hold a child under the age of 18 in custody without parental or guardian’s consent. We found out that a lot of children on the streets of Lagos come from outside the state thinking that Lagos is an Eldorado. It is unfortunate that many of them are underage and very vulnerable because they can be introduced to so many vices.”

“When we rescue them, we try as much as possible to carry out social investigation to know where they actually come from and why they absconded in the first place. And this takes time, because most of them don’t usually tell the truth since they don’t want to go back home. Once we have them in our custody, we must take a Court Order to keep them since the law provides for that and we cannot keep them indefinitely, so we still need to send them back to their parents. And our practice is to get in touch with the social welfare services of their respective states, which would in turn get in touch with the families.

“In the last one year, a total number of 3,114 beggars, destitute and mentally-challenged have been rescued in day and night operations and 2,695 were taken to the Rehabilitation and Training Centre, Owutu, Ikorodu, where the state government has made provisions for facilities to help in turning their lives around, while the mentally-unstable are given medical attention.”

It is necessary to quote him as extensively as done here because of the implications and ramifications of what the government of Lagos State is doing here.

The SA appears to be implying that only those under the age of 18 are carted away on these family reunion projects, the reason being that Lagos State cannot indefinitely hold minors in its custody without parental consent. His statement implies further that the mentally infirm are not repatriated but looked after in state-run facilities. If this is the case, the constitution would appear to justify the government of Lagos State.

Section 35(1) of the 1999 constitution provides that “[E]very person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law: …(d) in the case of a person who has not attained the age of eighteen years, for the purpose of his education or welfare; (e) in the case of a person suffering from infections or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community…”

What this means is that while everyone is entitled to personal liberty, government is allowed to deprive under-18s and the mentally challenged of this liberty, for the stated purposes.

However, it is doubtful that only under-18s are deported, given the statements that have been made by some of the Iweka 72 and the fact that none of the political leaders of that geopolitical zone has commented on the deportees being children. And, in any event, that section of the constitution does not justify forcible removal from Lagos.

There is also the question of the basis on which the government determines that these minors have parents and whether it repatriates such people regardless of whether or not they are orphans. What measures does it take to ensure that minors are actually reunited with their parents rather than merely exchanging Carter Bridge for Upper Iweka Bridge? If indeed, the government of Lagos State merely dumped 72 minors at Iweka Bridge, has it not breached its obligation of security and social welfare to these minors, as guaranteed by Section 14(2)(b) of the constitution?

Furthermore, if the government of Lagos State is sifting through destitute persons within its territory, on the basis of states of origin, to determine who would be entitled to social welfare, there is a clear question of whether or not such a process is discriminatory. I would in fact argue that it is discriminatory, given that it is highly unlikely that these repatriated/deported persons were actually reunited with any family as the government would have us believe.

Section 42(1) of the constitution says “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person – (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinions are not made subject;…”

Section 41(1) of the constitution states that “[E]very citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen shall be expelled from Nigeria or refused entry thereto or exit therefrom.

Taking these two sections of the constitution together, a citizen of Nigeria is entitled to move freely within Nigeria and live in any location of his choice and has the right not to be discriminated against on the basis of his place of origin.

Indeed, there would be implications for the “indivisibility” of Nigeria (Section 2(1) of the constitution) if every state began deciding who would be entitled to its services on the basis of their places of origin.

I would suggest that the government of Lagos State reevaluate its strategy for the gentrification of the mega city. The mega city, no matter how mega or giga or even tetra it may become, will only be a city within a state, within a federation. Unless, of course, the deportations are a declaration of secession…and we have been down that road before, have we not?