The Nigerian Music Industry: Random Thoughts

It’s been an eventful couple of weeks for the entertainment industry here in Lagos, on the legal side of things. Injunctions were sought (and allegedly flouted), some arrests were made (a label was following the money) and some deals were re-done. Some thoughts on the goings-on and more –

 

  1. It’s a business, not a charity

One of the viewpoints to first make the rounds on social media was that labels ‘in the abroad’ aren’t as hardnosed as Nigerian ones. They, allegedly, invest millions in the artist and if the artist doesn’t make it, everyone just parts ways.

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It’s a slightly outside way of looking at things. Yes, it’s a risk the labels are taking and if they’re not happy at the end of your contract, everyone parts ways happily (see, for example Skales and his former label, EME). However, no “abroadian” artist is going to simply up and try to jump ship. You either run out your contract, try to get the label to release you, or ask the court to tear the contract up. It’s a very naïve or poorly advised artist that declares a unilateral end to a contract that hasn’t yet expired.

 

  1. Contracts are almost unbreakable. But bring the tear of a dragon & a unicorn’s horn & we’ll see…

Contracts are the lifeblood of commerce. If people were able to make commitments to others and fail to honour them without any consequences, business/trade would be in tatters. For this reason, all over the [free] world, Courts are very reluctant to end or amend contracts that have been freely entered into.

 

However, courts have in the past released musicians from their labels, where they were convinced that the recording contract, or the circumstances of the relationship between the parties, prevented the musician from making a living (restraint of trade). Typically, this is where the label has refused to honour music release/publication commitments or has made the terms for doing so too tasking for the artist. Courts might also be minded to declare a contract invalid if the artist can show undue influence on the part of the label. So, basically, if you can show that you were strong-armed into signing onto the label, or that the label is making it virtually impossible for you to earn any income, you might want to talk to a lawyer about securing your release. Lawsuits can be expensive though, especially for an artist alleging that the label is closing off his/her income…

 

  1. Those Unbelievable Clauses? It’s the economics, St#$@*!

Following the ‘arrest’ and questioning of one artist and his manager, snippets of the artist’s recording contract were released and many commentators were shocked at the terms. The most fantastic of the terms appeared to be the £10m release/buy-out clause (riddle: when is a label like a Premier League club?) and the assignment to the label of the artist’s copyright in compositions that existed prior to his joining the label.

 

The immediate assumption was that the artist signed the contract without seeking legal advice or, in the alternative, that he had a bad lawyer. It’s an assumption that misunderstands the dynamics of the Nigerian music industry, as the thinking behind it is that an artist can get a label to significantly change the terms of its contract.

 

There are indeed a few artists that can get their requests for changes agreed to, but most are either label owners or execs themselves. For artists on the up and come, there is very little leverage that can be applied on the label, so it’s usually a take-it-or-leave-it situation. The artist in question here had just been released by his former label, where he’d only been moderately successful and had this new label promising him a signature bonus, a brand new SUV and a flat in Lekki. How many artists in that situation would listen to the lawyer’s advice not to sign?

I’m speaking from personal experience, having advised an artist on a nearly identical contract (whose template is it, anyway?) sans SUV and flat. The label lawyer rejected virtually all the changes requested, so the artist was advised not to sign. Artist signed anyway.

 

  1. Where’s the money, anyway?

Ask the average Nigerian artist where they expect their money to come from and you’re likely to hear live performances and product endorsements. Maybe caller ringback tunes as well. Virtually no one is interested in record sales. This Nigerian model is predicated on music being given away for free in the expectation that fame (and then the live performances and endorsements) will follow. This model probably only works for the Top 20-30 artists in my estimation and I don’t believe it to be sustainable. In addition, on CRBTs side, the average artist will get only 6-12% of the gross revenue, depending on the network (those that pay, that is; some are notorious for not paying).

 

Globally though, the highest growth area for music revenue is music streaming, with the IFPI 2016 Global Music Report showing that streaming revenues increased globally by 42.5% on 2015’s numbers. Digital sales on the whole have overtaken physical, the figures now standing at 45% and 39%, respectively.

Streaming accounts for nearly half of the global industry’s digital revenues. I might have a slight occupational bias here, but artists as a whole stand to make a lot more if they began to take digital REVENUES (not merely distribution) seriously.

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  1. Which brings us to COSON…

COSON continues to do a great job of informing the public in the various rights that music users should respect. They have also done well, as the sole collecting society authorised by the Nigerian Copyright Commission, in collecting license payments from broadcasters and public venues where music is played and enjoyed (hotels, bars, restaurants, etc.).  However, this is performance rights revenue, which globally accounts for only 14% of the pie. If the aim, as the representatives of COSON frequently say, is to ensure that producers, session musicians, songwriters, etc. also get a slice, there’s the question to be asked whether or not it’s helpful to join the industry in ignoring sales. A few producers have been in the news recently, accusing artists of not having paid for the work – they have no share in the revenue from the artist’s live performances, so what’s the remedy? There’s also the issue of sampling and covering – ordinarily, there should be a minimum statutory fraction of the sales revenue (from the song doing the sampling or covering) that goes to the original composer. In a jurisdiction where sales aren’t paid attention to, and no statutory rates apply, how do the original rightsholders get compensated?

 

I am aware, I should say, that COSON has a digital licensing framework in the works, and I look forward to its publication in the near future.

 

 

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Cracking Digital Music in Nigeria: The COSON Summit

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Disclaimer: The views expressed in this piece are totally personal to me, in my personal capacity as someone who has had a keen professional interest in the development of the copyright administration system in Nigeria for over 10 years.

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The Copyright Society of Nigeria (COSON) just concluded the hosting of a summit on digital music distribution, licensing and consumption. The 2-day event was tagged “The Nigerian Digital Music Summit” and its theme was “Establishing the Basic Rules of Engagement in the Digital Environment”. It was attended by industry practitioners, lawyers and also had resource people from countries with more mature copyright systems, such as Norway, Finland and South Africa. At the end of the summit, a communiqué was published, outlining the various things the community wanted to see in place.

The summit was timely for a couple of reasons – this year, for the very first time, it was reported that revenues from digital exploitation surpassed sales from physical. Revenue from streaming is quickly bridging the gap with revenues from downloads, with some companies actually reporting higher income from streaming than downloads. Streaming is the future, as I have previously written, and the time to begin to lay the groundwork for the Nigerian music industry to fully partake of it, was at least 3 years ago.

THE TELCOS ARE EVIL CORP.

Moving quickly to the substance of the proceedings, the gathering very quickly turned on the telcos, accusing them of benefitting unfairly from the music they exploited, mostly via Caller Ring Back Tones (CRBTs – the songs you hear playing when you give someone a call). And it was understandable. For an industry that has risen from piracy-ridden ashes to becoming arguably the leading hub in Africa and a major contributor to GDP post-rebasing, CRBTs were the content producer’s goldmine for sometime. Network saturation, in terms of subscribers and availability of CRBTs now means there are lots more mouths contending for the same pot of beans and individual revenues are declining somewhat.

In the middle of all this however, is the [unsavoury] fact that the telcos retain anywhere between 60 and 80% of the income generated from CRBTs. The remaining 20-40% is then shared between the Value Added Service (“VAS”) Company and the artist/or record label, with of course an even smaller share for the artist if they are signed to a label. With the bulk of their earnings coming from either corporate endorsements (but we can’t all be Don Jazzy, Phyno, Wizkid or Olamide) and CRBTs, the industry is probably justified to demand a larger cut.

Tellingly, however, very little attention was paid to streaming in spite of the efforts of CAPASSO CEO, Nothando Migogo, to stress that the time to focus on it was now i.e. before bandwidth and data costs stop being issues.

The industry should be worried about streaming because each of the four telcos in Nigeria now operates a music streaming service – MTN Music+, Airtel Wynk, Etisalat Cloud9 and Globacom’s Music App. If these telcos have held on to the lion share of the revenue with CRBTs, what’s going to happen with streaming revenue from their services? For other music streaming services, the most efficient way to take payments from subscribers and purchasers is via their airtime. However, when the telcos convert airtime to cash to pay for a transaction, they typically retain about 70% of it, leaving only 30% to be shared between the stand-alone streaming service and the artist/label. Perhaps the even more pressing issue is that the aim of the telcos in starting these services, in my opinion, is to sell data, as voice revenues have peaked globally – data is the new frontier. It’s the same reason some of them are getting into video on demand, etc. In other words, data sales are the real target, the real pot of gold at the end of the rainbow for the telcos, and these guys don’t share data revenue (larger than music download or streaming subscription revenue) with anyone.

BUT EVERYONE LOVES THE FREE DOWNLOAD SITES

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Perhaps it’s even more striking that an industry that wants to earn serious digital revenues made no reference to the industry practices that cannibalise the larger portion of digital earnings, particularly the way nearly everyone offers vast amounts of music for free downloads. What will the incentive be for consumers to buy albums when 70% has previously been released for free. If one also considers the fact that the industry is globally now more singles-driven than albums (iTunes killed the album), this is effectively a limiter on potential earnings, if all singles are given away. The CRBT gravy-train won’t last forever and it isn’t even really working for those who need it to, who have neither the eye-watering performance fees or the juicy telco endorsement deals. Will those ones dare cross the picket line against their benefactors?

ENTERTAINMENT DEVICE LEVY?

Another interesting issue that came up was the Private Copy Levy. This is basically a surcharge on all mobile phones, tablets, PCs, storage devices, etc. to compensate musicians for the revenues they lose when we email or Bluetooth music to each other. I would be very interested to see how our analogue National Assembly would treat this sort of legislation.

F.U.B.U.

Perhaps a final impression is on a comment made by the panellist on the need to develop homegrown solutions to our problems. Yes, benchmarks can be drawn against global best practice, but ultimately the mature systems matured because they developed relatively organically and catered to the needs of their locale, not necessarily pidgeon-holing themselves into systems others had developed. I think it’s important to take local peculiarities into account, to get the system that works best for us.

All said, COSON is doing very important work and deserves commendation for how far its come in the past few years. As long as it becomes clearer how it distributes revenues it collects, and as it increasingly delivers value to the industry, the benefits to will be immense.

Copyright Protection: The Exceptions

One of the benefits of recent events bordering on blogging and plagiarism is that everyone got a crash course on intellectual property and copyright. Most know now that you need the author’s permission to use literary, musical and artistic works, as well as films, sound recordings and broadcasts. This is a good thing. Intellectual property law however is more shades of grey than columns of black and white. The slight concern (for me) is that this is mostly being bandied as an absolute rule and that any unauthorised use whatsoever is immediately plagiarism or copyright infringement. This is not the case – absolute monopolies of use are not created. The reason for this is rooted in the [jurisprudential] basis for copyright protection.

 

Copyright, does not exist solely for the benefit of the content creator and most countries generally declare a justification for their system of copyright protection. For example, in the world’s first ever copyright legislation, the English Statute of Anne, it was stated that the purpose was to “encourage learning”. Similarly, the American Constitution states that the purpose of copyright is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

 

Copyright protection exists more therefore in the interests of the public good than the interests of the private individual. The competing need to balance economic benefits to rights holders and the public interest of users of the protected works is the reason that there are circumstances in which the works may be used without authorization.

 

One of the easier exceptions to exclusivity is that copyright protection does not last forever. See here for a breakdown of copyright duration.

 

 

Secondly, some laws provided a list of activities that will not be caught by usual copyright restrictions. One if Fair Dealing, which is discussed below, but several others listed in the Nigerian Act include the following:

  • reproducing the work by way of parody, pastiche or caricature (e.g. BuniTV’s Drunk in Love);
  • reproducing and distributing copies of an artistic work permanently situated in a place where it can be viewed by the public;
  • inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is for educational use and includes an acknowledgement of the title and authorship of the work;
  • incidentally including an artistic work in a film or broadcast

 

 

The final exception or limitation for this piece is Fair Use. Under the Nigerian Copyright Act, the concept is referred to as “Fair Dealing” and is described as follows:

 

“The right conferred in Section 6… does not include the right to control (a) the doing of any of the acts mentioned in the said Section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast.”

 

In other words, as long as I refer to the title of your work and acknowledge your authorship, I can use snippets of it in a subsequent work doing any of the highlighted activities in the preceding paragraph.

 

In America, there’s a slightly more robust test for determining Fair Use. See the excerpt below from the Copyright Clearance Centre’s website:

 

“Section 107 of the United States Copyright Act lists four factors to help judges determine, and therefore to help you predict, when content usage may be considered “fair use.”

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes. If a particular usage is intended to help you or your organization to derive financial or other business-related benefits from the copyright material, then that is probably not fair use.
  2. The nature of the copyrighted work. Use of a purely factual work is more likely to be considered fair use than use of someone’s creative work.
  3. The amount and substantiality of the portion used in relation to the copyright protected work as a whole. There are no set page counts or percentages that define the boundaries of fair use. Courts exercise common-sense judgment about whether what is being used is too much of — or so important to — the original overall work as to be beyond the scope of fair use.
  4. The effect of the use on the potential market for or value of the copyright protected work. This factor looks at whether the nature of the use competes with or diminishes the potential market for the form of use that the copyright holder is already employing, or can reasonably be expected soon to employ, in order to make money for itself through licensing.

 

What does this mean for blogging? It means you need permission to use photos still under copyright. It means you can use excerpts (a few paragraphs – depending on the total length of the essay) from other people’s work in your own without asking their permission first, as long as you acknowledge the original work by title and author. As for tweets, because it is a requirement of eligibility for copyright that “sufficient effort has been expended on making the work to give it an original character”, very few would be eligible for protection and the great majority can be used without the handle owner’s permission. It’s always nicer to ask, though.

 

Aereo and the Disruption of Public Broadcasting

Aereo Logo

Startup and tech buffs love disruption, and for good reason too. Technology has intervened, over the course of human development, to change existing business models and sometimes make them obsolete. Usually, after some initial resistance, the market follows the disruption and old businesses either [try to] adapt, like Blockbuster or close shop and move on, like Kodak Film.

 

The US Supreme Court is about to rule on the legality of the attempt of a company named Aereo to disrupt conventional free-to-air television broadcasts. Aereo offers its users a service through which they can watch live TV online for a monthly subscription of $8-$12. The TV broadcasters, whose content Aereo offers, are upset because Aereo has not obtained licenses to rebroadcast their content and they are convinced that this is clear piracy. Their sentiment is underscored by the existing lucrative situation, where cable and satellite companies pay huge sums to TV broadcasters to retransmit/rebroadcast popular shows. This is where the impact of the disruption will be felt, should the Supreme Court rule Aereo’s business to be legal.

 

Aereo's Antennas. Photo Credit: Washington Post

Aereo’s Antennas. Photo Credit: Washington Post

The case turns on whether or not Aereo’s transmissions to subscribers are “public performances” or “private performances” of the TV broadcasts. If we revisit our Copyright 101 notes, we will remember that broadcasts are eligible for copyright protection and one of the implications of this is that the copyright holder has the exclusive right to control how they are transmitted/communicated to the public. What is the difference between public and private performances? Well, there isn’t a rigid distinction, but generally, private performances fall within the realm of family, home viewing, of a non-commercial nature. Anything outside that would probably be a public performance.

 

There is also a judicial precedent (i.e. a previous decision of the Court of Appeals) which will come into focus during the presentation of arguments at the Supreme Court; the Cablevision case. “Cablevision involved a cable company that held licenses to transmit live copyrighted programs, but also sought to offer subscribers an unlicensed service known as a “Remote Storage Digital Video Recorder” (RS-DVR).” [Quote is from the US Solicitor-General’s amicus brief (opposing Aereo) to the Supreme Court, in the Aereo matter. Full brief can be found here.]

Aereo AntennaAereo2

The RS-DVR allowed subscribers to record programs for later viewing, with the recordings stored in central servers housed and maintained by Cablevision. The courts ruled that the RS-DVR transmissions were private, rather than public performances, for various reasons, including that the transmission from the RS-DVR could only be received by one subscriber.

 

That factor, the capability of reception by a sole subscriber, is central to Aereo’s business model and legal arguments. The US Solicitor-General in fact suggested in his brief that Aereo engineered its business model around the Cablevision decision. So how does Aereo work?

 

Aereo has a central hub of “thousands of dime-sized antennas that are rented to individual users.” [See more in article from Time here.] The antennas capture live free-to-air TV signals, with each antenna serving no more than one subscriber at a time, depending on what program the subscriber chooses to watch. Aereo believes that a ruling that its business is piracy would have serious implications for cloud computing and would throw the Cablevision precedent out of the window. The District and appeal courts have agreed with Aereo so far. However, one of the judges at the Court of Appeals dissented.

 

According to the judge, Judge Denny Chin, in his dissenting opinion, [full judgement available here) Aereo’s technology platform is “a sham”. He says the system has been “over-engineered in an attempt to avoid the reach of the Copyright Act and take advantage of a perceived loophole in the law.” To my mind, he provides a great example of how the system is a sham. In spite of Aereo’s seemingly innocuous position that it provides users with a technology platform to make and access unique private recordings, Aereo’s antennas broadcast the Superbowl live (and simultaneously) to 50,000 users. It would indeed be curious for this not to be held to be public broadcasting.

 

The Judge goes further to distinguish Aereo’s case from Cablevision, with the key point that Cablevision involved a company that already paid license fees, while Aereo pays none. The subscribers in Cablevision already had the ability to view the recorded transmissions; Aereo’s do not. Aereo is functionally a cable company, doing what cable companies typically do, except for its attempt to avoid getting licenses to rebroadcast programming.

 

However, many legal scholars support Aereo, according to the previously referenced TIME piece. One such scholar is quoted as saying “Aereo simply provides an antennas for viewers to privately transmit free over-the-air broadcast television signals. It does nothing more than make it easier for viewers to access already free broadcast service.” But, I would counter, this (i.e. that the broadcasts are free-to-air) is irrelevant to the underlying intellectual property rights and what non-copyright holders have the power to do.

 

I am not an American qualified lawyer but I believe that Aereo’s business should be held illegal. It is clear that their thousands of dime-sized antennas, rather than a single large receiver, is a less-efficient way to structure the business. And, while taking advantages of loopholes in laws is legal and loopholes are in fact the bread and butter of many wealthy lawyers around the world, I agree with Judge Chin that there are enough differences between Aereo and Cablevision to hold that Cablevision does not apply here.

 

We watch and observe.

 

A Summary of the Nigerian Law of Copyright

 

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.

The COSON Summit on Digital Licensing

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.