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Legal Opinions & Reviews

Doing Business Needs To Be Easier

/ Scribe of the Tword / 3 Comments

The Federal Government and many State counterparts know how to spin a good yarn on entrepreneurship being the solution to Nigeria’s unemployment pandemic.  There has been no better evidence of the country’s stark reality in the employment stakes than when the government itself shambolically attempted to test over 500,000 job applicants to fill only 4,000 vacancies (less than 1%), resulting in stampedes and deaths.

 

So, yes, unemployment is a problem. And you would think that governments serious about stimulating private sector job creation would be similarly serious about creating an environment conducive to this. Sadly, starting and running a business in Nigeria remain extremely tough and most of the obstacles to giving it the best shot come from the government and its various agencies.

 

Granted, it isn’t the fault of the government (well, not directly, anyway) that very little credit is available and so office space, electricity generators, equipment, supplies, etc. all have to be paid for in full prior to commencing business. However, most business people find that once they’re set up, they’re then at the mercy of all sorts of “officials” from State agencies and the local government, demanding all sorts of levies for sundry permits, depending on the nature of business being carried on.

 

The problem isn’t the permits in and of themselves, as most entrepreneurs I’ve been privileged to advise do want to do business legitimately and in a structured manner. The problem is in the way that these agencies ambush businesspeople. What’s worse, I doubt that there are any consultants who can give you the full list of permits, licenses or approvals required for a business – this advice will come with a caveat. So, how can people starved for cash properly plan their expenditure?

 

My proposed solution is for the government to simplify this process. I realise this is antithetical to current practices of making approvals as tortuous as possible (in order to extract as much “extra” from the public as possible) but we surely cannot continue this way. My proposal for simplification is similar to the Federal Government’s One Stop Investment Centre (which hasn’t really worked out, by the way, but a noble idea).

 

The idea behind OSIC was to create one office where investors could go to for all the permits required to carry on business in Nigeria. Great idea, but key agencies like customs and immigrations have remained very tribal (who would blame them, given how much, for example, expatriate quotas cost) and “one stop” hasn’t really been one stop.

 

A state OSIC would be a great idea too though, especially if the State Government secured (or coerced) the buy-in of Local Governments too. One place for every single permit your business needs, with a pact from the government that no one would be harassed over any permit or levy not issued or collected at its OSIC. In addition to that, serious states (I’m talking to you, Ogun State) have to dismantle road blocks where local governments demand that motorists buy radio licences to be able to drive through the local government. It isn’t only illegal, it is patently stupid. Same as with requiring trucks and articulated vehicles to obtain permits for each local government they intend to drive through. This currently affects only loggers and the like but when e-commerce begins to require larger delivery vehicles to maximise efficiency, it simply won’t be workable.

 

In the World Bank’s annual “Doing Business” report for 2014, Nigeria ranks 122 out of 189 in ease of doing business. In 2013, our rank was 114, so it appears doing business has become tougher over the past year. You can see the report for yourselves here (and here for the overall rankings). It is no coincidence that the countries where doing business is easiest are amongst the world’s most prosperous.

 

We have only 6 years to go until 2020, when the government says it plans to break into the elite group of the world’s Top 20 economies.

 

BON, COSON and MUSIC-SHUNs: 5 THINGS

/ Scribe of the Tword / 2 Comments

It has now been widely reported  that IBAN* and BON** (associations of independent television and radio broadcasters) have chosen, in response to lawsuits by COSON, seeking the payment of royalties for its members, to stop playing the music of COSON-registered artists. Here are a few bits and bobs on collecting societies and royalty payments.

  1. What is a Collecting Society?

A collecting society is an organisation that, as the name suggests, collects royalties income on behalf of its members. What income? Well, you’d have to go back to Copyright 102, on who owns the music, for copyright basics. However, to quickly summarise, the music and the process through which it is made confers exploitable rights on different people. If you’re a busy song writer or a touring singer, the chances are that you cannot track all the stores, radio and tv stations, digital platforms, etc. playing or selling your music. Collecting societies do this for their members. Examples of collecting societies outside Nigeria are The Harry Fox Agency, PRS for Music, ASCAP, NORM, SAMRO and so on. In Nigeria, we have COSON – the Copyright Society of Nigeria. COSON is the collecting society for musical works and sound recordings in Nigeria. What are musical works and sound recordings? See Copyright 101.

2.   Does COSON represent only singers/artists?

In theory, no. I reckon COSON would also argue that it doesn’t just represent singers in practice.  In theory, COSON should represent and indeed holds itself out to represent everyone in the music-making process – singers, writers, instrumentalists, producers and so on. However, the nature of copyright is such that if a producer or instrumentalist was hired and paid a one-off fee for their work, it is deemed a work-for-hire and copyright vests in the employer. Which brings me to the “in theory” part, because in Nigeria,  most singers write their own songs and the producer (hired and paid a one-off fee) sequences the music with software. After Cobhams, not too many others hire session bassists, guitarists, percussionists, etc., unless you’re part of a fuji or highlife band, but you get the drift. If a singer who’s written his own music (or his label), hires a producer (on a one-off fee) who lays the beats, who owns the copyright in the work? The artist? That’s right. But I am more than happy to be corrected if my assessment is wrong.

3.   How do Collecting Societies pay their members?

I’m just going to copy and paste the ASCAP formula . You can find the breakdown and explanation on their webpage, here.

Use Weight  X  Licensee Weight  X   “Follow The Dollar Factor”   X   Time of Day Weight   X   General Licensing Allocation

+

Radio Feature Premium Credits
(for radio performances only where applicable)

+

TV Premium Credits
(for performances in highly rated series, where applicable)

=

CREDITS

You can also view BMI’s method here.

How does COSON pay its members? They also describe it on their website and here’s another copy and paste:

“At COSON, there are two categories of distributions: Specific Distribution and General Distribution.

“When a license is issued for a clearly identifiable work or a log is received from which the royalty due to a particular work is clearly discernible (e.g radio & TV promos, road shows, jingles, ringtones, etc), the copyright owner/s is entitled to a royalty based on how much the society has collected on behalf of the owner from the user. The only deduction in this case will be the administrative cost.

On the other hand, a general distribution is made to members across the board, in cases where the royalty collected cannot reasonably be ascribed to any specific work or where the members at an AGM have decided that a token be paid to all members irrespective of the amount of use of their works. General distributions are usually done once in a year.”

4.   Is COSON the only collecting society in Nigeria?

Uhm, yes, although Charlie Boy and his friends at MCSN would probably disagree with me. And this article, here, suggests there should be more than one. However, the Copyright Act says that you cannot officially be a collecting society unless the Copyright Commission licenses you as such. The Act goes further to state that that the Copyright Commission does not need to license more than one collecting society if it is satisfied that a single society can carry out the role adequately. Therefore, as the law currently stands, royalties for the broadcast of musical works and sound recordings in Nigeria are payable to COSON alone.

5. Does COSON’s “International Standards” Argument Fly?

COSON prefaces most of its statements on this matter with a reference to international standards and practices for the industry. If we want a world-class industry, then YES, it certainly makes sense for us to adopt the standards that the very best representatives of the international industry have imbibed. However, our history, both economic and political, has shown (and it’s unclear to me whether this is fortuitous or by malevolent design) that wholesale adoption of international standards has not always worked. In his piece on the matter, industry heavyweight, Efe Omorogbe frowns at the BON/IBAN tack of wanting to develop a system that takes the “peculiarities of the Nigerian industry” into cognisance. Obviously, given how long BON and IBAN have contended with collecting societies (and other, more sinister motives, as alleged by COSON), there are some trust/credibility issues. But there is nothing wrong (if BON/IBAN are sincere) with looking at the roles that culture, environment, etc. played in the evolution of international systems while they were evolving, and see if we need to tweak any parts of what we’re adopting. For instance, is it a factor worth considering that in the royalty regimes practising these international standards, pirates and piracy are not as pervasive as they are here? Is it worth considering that our traditional channels for distribution now involve an Alaba “distributor” negotiating a one-off fee with the artist and  the artist expecting no more sales income from the album (thank God for digital)? These have no direct bearing on radio and television per se, but they underscore the point that our industry is neither American nor British – it is Nigerian.

Clearly, BON and IBAN have to pay for licences to exploit the music, unless they all decide to become 100% talk radio stations. This is more so as they are required to have 80% Nigerian content. If their ban is as a result of not wanting to pay at all, it is unconscionable. If, on the other hand, they want to develop a royalties regime in good faith for the Nigerian industry, then rather than merely complaining about antagonism and harassment, they should be putting out counter-proposals to COSON’s. Eventually, the law suits that have been filed by COSON will reach a conclusion and things will come to a head. It will be interesting to see if the ban will last as long as the lawsuits.

________________________________________________________

**IBAN – Independent Broadcasting Association of Nigeria

**BON – Broadcasting Organisations of Nigeria

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Nelson Mandela’s Musical Legacy

/ Scribe of the Tword / 12 Comments
English: Nelson Mandela in Johannesburg, Gaute...

English: Nelson Mandela in Johannesburg, Gauteng, on 13 May 1998 (Photo credit: Wikipedia)

How will I remember Nelson Mandela? It will be in the music that was made about him and his role in the struggle to smash apartheid. There are many reasons why. As a child of the 80s in Nigeria, we didn’t have political programmes dedicated to the struggle – it would have been hard and perhaps a bit hypocritical, seeing as we were under the thumb of the military for the greater part of 1980-1990.  There was no CNN/cable television for us until the mid to late 90s, no internet, no news breaking globally in an instant. No. My initial education on South Africa, apartheid and Nelson Mandela was from the music of the day.

I remember Majek Fashek’s Free Mandela, from his album I and I Experience. The song spoke of the man who had been in jail for 27 years, who “left his wife and his children for the sake of Africa”. The song also reminded us that Nigeria had been independent had been independent for 29 years but Nigerians were still dependent. Majek begged Margaret Thatcher, George Bush and Frederik De Klerk to free Mandela; it begged Babangida to free Nigeria and it begged colonial masters to free Africa. During the Fela-rites-of-passage years that all Nigerian men in universities go through, I would later hear Fela Anikulapo-Kuti point out the absurdity in Thatcher and Reagan, who he said were friends of Pieta Botha, go to the United Nations to press for a charter on human rights.

I remember Ras Kimono’s Kill Apartheid. He sang, “Ronald Reagan and Margaret Thatcher, Gorbachev and Pieta Botha/All of them come and join together/They want to be the blacks’ masters/So, kill apartheid, we have to kill apartheid…” I forget the musician’s name now, but I also remember “The whole world is saying: stop this apartheid; Africans are saying free Nelson Mandela! Oh yes! Liberate South Africa Now!”

I remember Paul Simon’s Graceland  concert, with which he launched his African-flavoured album of the same name. Hugh Masekela and Miriam Makeba (God rest her soul too) did a duet – Bring back Nelson Mandela, brick him back home to Soweto, I want to see him walking down the streets of South Africa TOMORROW! Bring back Nelson Mandela, bring him back home to Soweto, I want to see him walking hand in hand with Winnie Mandela…” Apart from Masekela’s hypnotic trumpeting, there was something about that simple plea that plucked at my young heart.

I remember Onyeka Onwenu’s tribute to Winnie Mandela. “Winnie Mandela, sould of a nation, crying to be free…they can take away your man, take away your happiness, but they can’t take away your right to be free…”. I remember Nel Oliver, who resurfaced recently with the wedding hit “Baby Girl”, do a song on apartheid as well. “We must refuse segregation, we are born to live together. Open your hearts and sing in harmony, Apartheid in South Africa…” [Update: I’ve since learnt that the song was called “Upheaval”. I also found the video…]

There were so many more songs celebrating Madiba and his struggle. I’m sure I will be reminded of a few. I remember being in boarding school the day he was released from prison. We all gathered round the TV they’d brought into the common room just for the occasion. I suspect that the gravity, the significance, of the occasion was lost on the prepubescent gathering. For me, it was that this man I’d heard so many songs about was finally free.

Rest in peace, Madiba.

NB.

I’ve been told that it was sacrilegious to omit Asimbonanga by Johnny Clegg. I hope the powers that be will forgive me for this oversight, as I’ve sought to correct my error by embedding a keeper. Madiba joins Clegg on stage at this performance of Asimbonanga. Enjoy.

MTN Corporate Elite 2013: 10 Things

/ Scribe of the Tword / 8 Comments

The end-year-office-party season kicked off yesterday, the 1st of December 2013, with MTN’s Corporate Elite 2013 concert at the Convention Centre of Eko Hotel and Suites. This is the seventh year in a row that MTN has hosted the event and man, did they put on a show. These days, I really can’t go anywhere without doing a little aproko, so here are my bits and bobs from the event.

1. Billy Ocean is a LEGEND. End of.

Our man is grey-haired now, being all of 63 years old, and he’s grown dreadlocks along the way. He showed last night, however, that his lyrics are eternal. Reeling out classics like What is the Colour of Love, Suddenly, When the Going Gets Tough, Get Out of My Dreams (Get Into My Car), the entire venue sang along; even the stuffy elite of the corporate elite. Suddenly was particularly tender as everyone, including yours truly held on to their other halves and loved up the atmosphere.

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2. Maxi Priest can saaaaaaaaaaaang!

We know him on this side of the planet for hits like I Just Wanna Be Close to You, Wild World, Just a little bit longer and the like, and he performed those songs to all our delight. However, I’d personally confined the man in the box of my mind to being a mere reggae artist. No people – the guy is an absolute rock star. Maxi Priest brang it and then he sang it. What’s more, after his set, he came to sit in the audience at the table right next to mine. So of course I famzed and he shook my hand. Said hand is currently in a vacuum glass glove, destined to remain unwashed until we cross over into the new year.

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Maxi Priest

3. The Madness that is Awilo

Weeeeeepah! We love Awilo Longomba. We’ve loved him since Comment tu t’appelles? in the late nineties/early noughties. However, he exploded onto the stage and stopped the music after only  20 seconds. “Why you no dennss?” he asked disappointedly, in his thick francophone accent? Then he bust a few bars and held the microphone out to the crowd but only got a muted response. Someone needs to tell him though, that it’s because we sing his music phonetically – we don’t know the lyrics. Praiz  eventually joined him on stage for their new song to close the set.

www.myspace.com/aayaproduction

http://www.myspace.com/aayaproduction (Photo credit: hansgd23)

4. The C.E.O. Dancers

Two of them, anyway. Since their introduction to the continent (you have to love the internet) on Youtube via Britain’s Got Talent, we’ve seen them in a few music videos. Last night, they were Awilo’s dancers. The one with the bleached, short hair seemed a little overwhelmed by it all every once in a while, with a puzzled look on her face, but there you have it – Simon Cowell’s sphere of influence spreads to a concert in Lagos.

5. Put the Effing Tablets Away!

So, Joe comes on stage and all the women are swooning. But not so much that they forget to whip out their mobile phones and iPads. You rush to the stage, your screaming at Joe, he reaches out to shake you, you grab his hand and quickly spin around to take a quickie selfie with Joe? Hian! Even worse, you’re recording the performance on your 20-inch iPad and it’s so fricking large it covers your face. Joe comes over to hold your hand. You give to him, you’re screaming, going nuts yet you don’t put the tablet down so you can actually see his face and look at him properly?? Come on! Live the moment. Carpe momentatis (fake Latin, don’t quote me anywhere, please).

6. It’s the “Corporate Elite”, but Come On!

I was seated at a table with a couple of old folks. I suppose they’re the ones that MTN was really throwing the party for. Sometimes, when you’re in the Lagos Elite, I suppose you are mandated by social etiquette to honour all the invitations that are extended to you. But how on earth do you come to a concert, the whole auditorium rises to its feet because their song just came on and you ask me to sit  because I’m blocking your view? B@%#$ please! Then you wrap yourself up in a shawl, put your head on the table and look miserable all night, punctuating your misery with intermittent sips of champagne from a water glass. Just go home, lady. Corporate/socialite elite or not.

7.The Love of Joe

Joe is so fortunate, from the Nigerian perspective, that it was his music that people in their mid-30s to mid-40s became men and women to, and I don’t mean that in a dirty way at all. If you were in university in the mid-90s onwards, chances are you jammed to Joe (and Puffy, Pac, Ma$e and Biggie…but well…). Your first car, with your first Sony Explode car stereo jammed Joe and you probably have a few memories of relaxing to Joe with your boyfriend/girlfriend at the time.

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Joe got up on the Murray-Bruce’s table. Grandma Murray-bruce gave him a queenly smile.

8. They Know Me?

It was the first time in Nigeria for Billy Ocean and Maxi Priest.  You can tell it’s an international act’s first time usually by how they harp on “Africa” in their ad libs, but that’s a digression. I reckon both they and Joe were surprised at how popular they were, how everyone sang along to their lyrics when they’ve probably never earned a dime in royalties from Nigerians buying their records. Reminds one of the time DMX came to Abuja about 10 years ago and reportedly flipped out, enraged at the volume of bootleg copies of his CDs on sale. Enter COSON? (I’m sure I just made their Board happy).

9. Nigerian Acts

I cannot end without giving kudos to the Nigerian artists that featured yesterday – Praiz, Iyanya, Davido, Saeon, KCee. The same crowd that got on its feet for Billy Ocean, Dru Hill and Joe went absolutely nuts for its local acts. I bash local artists a lot for lyrical content but I can’t know much about music if the music I complain about brings tens of thousands to their feet. So keep on keeping on fellas.

10. The Product is Nostalgia

What’s your selling point, as an artiste who peaked 20-30 years ago? It’s nostalgia. When Tevin Campbell came on, you should have seen them mamas with teenage kids now screaming the lyrics of Can We Talk. When JT Taylor did songs from his Kool and the Gang Days, there was this grandpa in a bowler hat going all groupie on the man. The point is, I think, if you want to live on your music for the rest of your life, it has to be worth listening to 20-30 years from now. And this is me harping on lyrics again. I may not know much about music but whine-am-whine-am-go-down-low will not be paying the bills in 2023. What memories can your audience make to whine am music? The product sold be memory-making music.

Tevin Campbell

Tevin Campbell

JT Taylor

JT Taylor

Legislature Defections: Sitting Pretty or “Fidihe”?

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Since the APC announced its absorption of the breakaway faction of the People’s Democratic Party – the so called “New PDP” – questions have been raised as to whether defecting lawmakers must now vacate their seats in the various legislative houses. This ordinarily should be the direction that the moral compasses of the new members of the APC should point to. If you asked your constituency to vote for you based on your membership of a party and then leave the party after your election, you should ask for their trust again.

However, the issue is legal and not moral. And the principal actors also realise this. In its statement after the defection, the PDP, through its National Public Secretary, Olisa Metuh, the PDP said the governors and legislators were free to leave the party, concluding with the following reiteration:

“We reiterate that the position of the law is very clear – that there is no factions whatsoever (sic) in the PDP.”

In his own press release, Chief Eze Chukwuemeka, the NPDP’s National Publicity Secretary, apparently in response to the nuanced “de-factionalisation” of the PDP, declared that the seats of defecting lawmakers were safe, citing constitutional and judicial authorities for his position.

Sections 68(1)(g) and 109 (1)(g), in virtually identical wording state that

A member of a House of Assembly shall vacate his seat in the House if – (g) being a person whose election to the House of Assembly was sponsored by a political party, he becomes a member of another political party before the expiration of the period for which that House was elected: Provided that his membership of the latter political party is not as a result of a division in the political party of which he was previously a member or of a merger of two or more political parties or factions by one of which he was previously sponsored.

What this means, in plainer English, is that a lawmaker who switches to another party before the next elections will not lose his seat if the switch is as a result of a division (or breaking into factions) in his original party, or his original party merges with another.

The New PDP, as a result of concerted resistant from the Old/Real (?) PDP, was not registered as a political party by the Independent National Electoral Commission. There is also a subsisting court ruling restraining the New PDP from using the PDP’s logo or parading itself or its members as PDP. Does this mean, as Metuh has suggested, that there are no factions within the PDP? A court would probably need to rule on the point but I would suggest that common sense would recognise  that there has, in fact, been a split within the PDP since the machinations at its last National Convention.

Eze Chukwuemeka, in his press release, also cited a Supreme Court judgment from 1983 which ought to give the new members of the APC some comfort. In FEDECO vs Goni, Aniagolu, JSC (as he then was) said the following, on “cross-carpeting” and Section 64(1)(g) – equivalent of current 68(1)(g) – of the 1979 Constitution:

“The mischief which the framers of the Constitution wanted to avoid was carpet-crossing which, from our constitutional history, in the not distant past, has bedevilled the political morality of this country. They had however to allow for a situation where a political party, by reason of internal squabbles, had split into one or more factions. A split or division could arise without any fault of the members of a political party, resulting in a member rightly or wrongly, finding himself in a minority group which may not be big enough, or strong enough, to satisfy the recognition, as a separate political party, of the Federal Electoral Commission. For such a member not to be allowed to join another political party with his faction may be to place him in a position where his right to contest for political office will be lost. Such a situation is entirely different from the fraudulent and malevolent practice of cross-carpeting politicians of yester years who, for financial consideration or otherwise, crossed from one political party to another, without qualms and with out conscience. Such a practice had to be discouraged by the framers of our Constitution if political public morality of our country was to be preserved.”

This dictum is instructive, as it clearly recognises that a faction may exist even if INEC (then FEDECO) did not register the faction as a separate political party. Taken with the fact that the Constitution permits a departed factionalised legislator to retain his seat, I think the APC can safely put its feet up, at least until the next elections.

Interestingly, it appears one can switch parties whenever one likes and for any reason, without any consequence in the US Congress. See here and here.

SIDEBAR

1. As we are on the subject of elections, I recently stumbled upon some provisions of the Electoral Act of 2010 which bear some significance to the ongoing(?) elections in Anambra State.

Section 102 states as follows:

“Any candidate, person or association who engages in campaigning or broadcasting based on religious, tribal, or sectional reason for the purpose of promoting or opposing a particular political party or the election of a particular candidate, is guilty of an offence under this Act and on conviction shall be liable to a maximum fine of N1,000,000 or imprisonment for twelve months or to both.”

Juxtapose this with the following statement credited to Chief Arthur Eze –

“That short man called Ngige, we gave him power and he went and joined Awolowo’s people; the people that killed the Igbo.”

And the following statement credited to Chief Dennis Agumba –

“It was Chris Nwabueze Ngige that described the deported Igbos as destitute, just to please his godfathers from Lagos, who are funding his governorship campaign.”

Are these two men guilty of electoral offences?

2. The Parties who insist that they will not take part in the supplementary elections in Anambra State need to know (they probably do anyway) that boycotting would be an empty gesture.

“An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.” – Section 141

If you’re within striking distance of Willie Obiano but refuse to take part in the supplementary elections, the court cannot declare you winner even if everything goes your way during the trial.

5 Things New Artistes Should Learn From Brymo vs Chocolate City

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In recent news, Chocolate City served Brymo with an injunction, restraining him from recording, releasing or promoting any new music other than on the Chocolate City label. Brymo is reported to be under contract to the label until 2016. There will be a further hearing where Brymo gets to tell the court why the injunction should be lifted while the lawsuit – most likely for breach of contract – is ongoing. Until the suit is finally decided, here are a  few lessons that upcoming artistes can take away from the squabble.

1. PACTA SUNT SERVANDA (or Agirriment issi Agirrimenti o!!)

This latin maxim, that promises must be kept, is the lifeblood of commerce. The assurance that mutual promises will be kept is the reason for putting them down on paper in the first place. A contract is just a piece of paper with words, until things go wrong and one of the parties to the contract decides to ask the court to enforce what agreed. You are bound by what you have freely signed to.

Photocredit: fanpop.com

Photocredit: fanpop.com

If it is true, as Brymo reportedly alleges, that Chocolate City were remiss in their contractual obligations to him, his recourse would have been in the text of his contract. This leads us nicely into our second point.

2. LAWYERS ARE YOUR FRIEND

Lawyers and taxmen are loved by only a few. But it is absolutely important that a budding artiste seeks legal advice before signing that first deal. In fact, many of the contracts in circulation have a clause in which the artiste expressly states that he has sought legal advice before signing the contract. A lawyer – a good one, anyway – will ensure that a minimum set of obligations is required to be met by the label at various milestones, that a procedure for the artist to exit if the label defaults is outlined and, occasionally, that a buyout fee (as in football) is agreed so that if the chemistry between the label and artiste is truly bad and the artiste can afford it, he invoke the clause and leave.

But new artistes never have any money, you say. How will they pay for legal advice? If they truly have no learned friends, they could ask the label for an advance (recoupable by the label, obviously) to cover that cost.

3. WHEN A COURT ISN’T A COURT

Unless it’s part of some intricate PR strategy, there’s no point subjecting a matter to the court of public opinion that can only really be decided on by a court of law. No amount of public sympathy for you, however justified, can relieve you of your contractual obligations. Only the party you are bound to or a competent court of law can.

If you were failed, why did you not invoke the relevant clauses in your contract and seek proper termination. Since when did a unilateral public declaration terminate contracts? (Sidebar: I forget myself. I am a Nigerian after all. And our government has unilaterally cancelled innumerable contracts.)

So, before publicly announcing that you have left your label (which could be a breach of contract and entitle the label to damages in some cases), make sure that you either have a letter of release from the label or an order of the court to quash the contract. Otherwise, you’ll make your label angry – and you won’t like them when they’re angry.

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4. HOTEL CALIFORNIA

One  of my favourite songs of all time ends with the line “You can check out anytime you like, but you can never leave.” Even without the interim injunction in place, this limboville is where an un-released Brymo would have found himself. Recording contracts are usually an exclusive business. This means that while the contract is in force, the artiste cannot record or perform music except as arranged by the label. To do otherwise would be an infringement on the rights of the record label and the law has these cute devices called “damages”, “accounts” and “destruction”. Damages – the court “fines” you for your infringement; Accounts – the court orders you to hand over all the profit from the sales of the infringing music to the plaintiff; and “Destruction” or, more correctly, obliteration on oath, the court asks you to destroy all copies of the infringing music. Or all three!

So you’ve left the label, but have you, if they still get the money from your music?

5. THE THEORY OF RELATIVITY

Time passes faster in the arms of a beautiful woman than in a prison cell serving time, was how one movie character explained E=MC2. The next 3 years could seem like 30 (for  Brymo) if the parties concerned are unable to resolve this issue quickly.

One way to sort this all out might be for Brymo to jejelly hand over the masters for the new album and claim back all recording and associated costs from Chocolate City. If they’re going to “own” the music, one could argue that they assume the burden for making it.

Conflicts will arise in the course of commerce and resolving them speedily is inextricably tied to the document creating the relationship.

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Is Streaming the Next Big Thing? – What Consumers Want

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“In all countries, however, the most active music streamers can be found in the age group of the 18-24 years old.”

Music Business Research

The question if streaming is the next big thing for the music industry will be eventually answered by the music consumers. Several studies were conducted in past few years – most of them commissioned by music industry bodies – to assess the future potential of music streaming. It is essential for music streaming services and the copyright holders (labels and music publishers) if consumers are aware of streaming services, if they are using them frequently and if they are prepared to convert from Freemium to subscription models. Therefore the results of the studies are important indicators for the future development of the music industry. Although they provide different and even contradictory results – due to a different methodology – they help us nevertheless to understand music consumption behaviour in the digital age. In the following I would like to review some of the studies published in the past three years.

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Cracking Digital Music in Nigeria

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One of the courses I treated with the greatest disdain in University was GES 101. I can’t  remember the official title of the course now but I do remember that one of the topics was language and how culture and technology affect language. This has been proved true and become more evident as we march forcefully on into the 21st century.  Until about 5 years ago, tablets were medicine, tweets were onomatopoeic sounds, swiping meant stealing and streaming was something only a river or estuary did. The secondary (?) meanings that all these words and many more have acquired, one could argue, are actually close to achieving primary status now.

 

The advances in technology have presented new challenges for distributors of entertainment content. The market is swinging firmly away from scheduled to content to “on demand” or “a la carte”, where the user/consumer merely pays for access and is thereafter able to determine the order in which he will watch or listen to the content.  The consumer could also decide to purchase the content outright, and with purchase comes the ability to move content between storage devices. Delivering content in this manner will require the consumer to have enough space to store his content library. Thus, advances in digital broadcast have also been accompanied by exponential growth in storage technology.

 

A result of all this progress is that while my dad still has a collection of vinyl records occupying roughly twenty cubic feet of space somewhere in my late grandmother’s house, I can carry infinitely larger amounts of music around on a device no larger than my palm. This is good for the honest consumer but it makes piracy a whole lot easier.

 

Forgive me for being Captain Obvious so far, but a context needed to be set.

 

Piracy – in this context, the unauthorised distribution or selling copies of music – has always been with us and will probably always be with us. The problem is worse in many African countries, including Nigeria, where the government’s anti-piracy efforts are extremely feeble where they exist at all. Today, anyone can be a pirate, as is evident with so-called “offline downloads” being the primary concern of many labels and artistes in Nigeria.

 

“Offline downloads” is the copying that goes on, frequently for paltry sums, from laptops or external hard drives to USB storage devices. It has been reported that the “content aggregators” (with sincere apologies to legitimate content aggregators) charge as little as one naira per track copied.  With more and more cars and even portable radios coming with auxiliary USB audio sockets, one can see why members of the Copyright Society of Nigeria (COSON) are alarmed.

 

The Nigerian industry is also peculiar in the way its revenue stream works. Piracy killed record sales decades ago. The industry tried to solve this problem by selling record masters to distributors at the major piracy centres (tragically ironic, right?). Even at that, many emerging artistes are willing to give their music away for free on popular blogs and websites in return, hopefully, for exposure and recognition, which ought to translate into touring and performing income.

 

Thus, music is largely freely available on both the supply and demand sides of the music equilibrium. How then can digital translate to money for the local, large-scale distributors?

 

The challenge before Iroking and Spinlet, Nigeria’s two main digital distributors – the companies adopting the Spotify/Deezer models of monetising content – is to convince a large enough number of people to agree that paying for music is worthwhile.  In a country of 160 million people with a median age of 19, the market is certainly there. Potentially.  However, even Spotify, with its 24 million users (6 million of whom are paying subscribers) is yet to turn a profit, in its 7th year of operation. iTunes, it is claimed, is running barely above break-even (another great infographic here for dataheads), though Deezer claims to be profitable.

 

These companies exist in countries with mature copyright enforcement systems, where music royalties have been a dependable source of livelihood since forever. This means that there already exists a culture for paying for music. In spite of this, however, musicians are complaining that the revenue from streaming isn’t anything to get excited about. According to Zoe Keating (crossover classical musician) these are the different streaming rates that various distributors offered her (very useful table, actually). So, if neither the streamers nor the streamed are making money (though this point is heavily disputed), what’s the point of this business model? What will the point of this business model be in Africa, in Nigeria?

 

To understand profitability in the business, one must first understand how the service is priced. Most digital music distributors, in addition to outright sales, have a free (advert-supported) service, a limited subscription service (ad-free, but limited number of streams), and a premium subscription service (ad-free, unlimited streams). Therefore, first of all, the difference between outright sales and streams must be taken into account.

 

A physical CD in Nigeria is usually priced between N150 and N1,500 (not counting “deluxe” editions).  This pricing model can easily be adopted for digital sales. A stream, on the other hand, occurs when a track (not downloaded) is listened to for at least 30 seconds. The minimum listening period varies (some agreements say 45 seconds) but the first problem streaming has is how you quantify a listen. Do you randomly estimate how many listens can be extracted from a CD before it becomes unplayable? If a 9-track album costs N150, this equates to about N16 to “own” each track for life. How many times should a streamer be able to listen to a track before his use translates to N16 for the artist? Is this even the metric that distributors and artists/collecting societies use?

 

Speaking of collecting societies, one must commend COSON and the efforts they have made thus far in ensuring that music makers receive royalties for the use of their music. It is not clear however, whether they will function as an aggregator in respect of their dealings with digital distributors. Their primary revenue targets to date have been radio and tv stations, hotels, events venues, etc. and this category of people should rightly pay COSON a licence fee. However, should an Iroking or a Spinlet pay COSON a licence fee, given that each artist enters into a licensing agreement with the digital distributors? If yes, would that not effectively be double licensing, as the artists will collect under their individual licensing agreements, regardless of whatever fee COSON extracts. More importantly, was it the intention of the artists when joining COSON that the collecting society would take over all licensing activity? These are the issues that will need to be clarified as digital music expands in Nigeria.

 

The Value Added Service (VAS) companies that collaborate with telcos to sell ring-back and call-back tones are currently the silent winners in this quest to monetise digital music. Personally, I would never willingly activate a ring-back tone but I am a single subscriber in a pool expected to surpass 128million by 2014. The VAS market in Nigeria is currently valued at over N78.5bn and “may actually be moving towards $1bn in the next three years” .

 

In addition  to all that’s been said here, artists should consider ditching the “listen for free” model and start steering their fans towards platforms where listening generates them money. This may mean starving the blogs of some content and some blogs therefore going rogue and becoming pirate broadcasters (lawsuits, yaaay!!) but if physical sales are dead, then digital must reward maximally.

As for who will win the race to crack digital music in Nigeria, Iroking and Spinlet need to take on and subdue Deezer and Amazon first and hope that Spotify doesn’t decide to expand its operations to Nigeria before then. The catalogue is everything!

 

 

 

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Beat by SARS

/ Scribe of the Tword / 3 Comments
Nigeria Police Force

Nigeria Police Force (Photo credit: Wikipedia)

Of all the lawyering I have to do, my least favourite “beat” is the police station. Every once or twice a year however, there’s either a distress call from someone whose relative needs bailing or there’s a need to follow up on some matter or the other for someone who’s commissioned an investigation. Neither is a more pleasurable visitation than the other because, as far as the police are concerned, you’re there to negotiate an extraction, be it of a suspect or documentation. Note I said negotiate and not demand, because it’s not law – it’s all a transaction. Bail isn’t free and neither is getting the police to properly do what they ought – investigate and solve crime.

My first post-call visit to a police station was with the Director of Public Prosecutions in Calabar, during my NYSC year. The smell was rancid and there were half-naked men, begging with all the energy that was left in them, that we buy them bread from the girl walking past, hawking. We didn’t (how does the head of prosecutions buy food for suspects while on an official visit?) and it seems one of them broke into tears. I have either carried that rancid stench with me in my head over the years, or all police stations have that combined smell of putrefying bodily waste and grey matter.

Another time, an idiot driving a long vehicle swerved in front of me without warning and took off my entire front bumper. The whole world, including the police at the scene, knew he was liable but he refused to accept (not being the owner of the truck), so we ended up going to the police station. Apart from having to pay a N5,000 “VIO Fee” (there was no inspection) to “bail’ my car, I was shaken by another incident that occurred while I was writing my statement. A man was brought in in cuffs and told to sit beside me on the bench. Apparently, someone had a stabbed a trader and run into this man’s shop and, somehow, he’d allegedly helped the stabber escape. About 10 minutes after he arrived, still sitting beside me, word reached the station that the stabbed trader had died before reaching the hospital. “You’re in big, big trouble, this man,” the arresting officer said and then dealt him that vicious Police/Soldier/MOPOL slap we’ve all heard about. I swear an air tsunami blew from the man’s face to mine, causing my  face to sting.

This past week, I was at a SARS (Special Anti-Robbery Squad)office, to follow up on an arrest for theft and the ensuing investigation. There were lots of men walking about with automatic weapons and guns always make me edgy. More than this, I was being given the runaround because I was trying to negotiate my way out of a 10% recovery fee. But shhhh!  no one in authority is to know about this . And if you believe our President, quoting an Adolphus Hitler, corruption only exists because we don’t stop talking about it.

While waiting, one police officer, who also finds time to farm, began to complain about the lack of real government support for farming. He ridiculed last year’s telephone intervention, as well as this year’s fertiliser reforms. “They’ve taken our names, for over 5 weeks now, no fertiliser. But I’m sure they’ve used our names to process the money.” Then he segues into how he used to be on patrol at the ports, guarding the fertiliser silos. “They take over 70% to the North”, he alleged, “but it doesn’t even stay there…it crosses the border into Niger and Chad!” Those evil Niger and Chad borders again.

Another officer walked in and complained that the place smelled “like a bloody hospital.” I reckon he was from another division. “Oh, there are robbery suspects next door”, he was informed, “and they have bullet wounds. They get treatment while in custody.” I squirmed a little more.

 

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A Summary of the Nigerian Law of Copyright

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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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