Nigerian Copyright Commission Roundtable Report: Supreme Court decisions on locus standi of CMOs

Last week, this Africa Correspondent was invited by the Nigerian Copyright Commission (NCC) to take part in a roundtable organised in collaboration with the Intellectual Property Law Association (IPLAN) and the Section on Business Law (SBL) of the Nigerian Bar Association. The roundtable discussion was on the recent decisions of Nigeria’s Supreme Court (SC) in Adeokin v MCSN and Compact Disc v MCSN on the locus standi (right of action) of collective management organisations (CMOs) under the Nigerian Copyright Act. [Katposts on the decisions, here and on the 1709 Blog, here) The aim of the roundtable was to provide a platform for practitioners in the copyright space to analyse the effect of these decisions on copyright management and administration and also to help in policy formulation.

The programme started off with remarks by Director-General of the NCC, John Asein, the representative of IPLAN, Femi Olubanwo (whose firm, Banwo & Ighodalo hosted the roundtable) and the representative of the IP Committee of the SBL, Mena Ajakpovi, respectively. John Asien stated his expectations in terms of outcomes from the roundtable: circulate documents to the courts highlighting the practical implications of the SC’s decisions in the two cases and provide accessible information to IP practitioners, copyright owners and other stakeholders in the copyright ecosystem on background issues that led to (and will drive) legislations and regulations in the copyright sector. According to Mr Asien, the roundtable will be a regular event for the Commission to leverage on the expertise of the “IP Bar” and other copyright experts to strengthen the Commission’s work. To this end, the NCC proposes to hold more roundtable events on various copyright issues.

Upon dispensing with the formalities, the Lead Reviewer, Sandra Oyewole (Olajide Oyewole LLP) started off the roundtable. She observed that both cases came before the SC on interlocutory matters and so the SC remitted the cases back to the court of first instance for the commencement of trial. Between the trial court, Court of Appeal and SC, the matter took over 10 years (over 20 years in the case of Adeokin) before the Supreme Court delivered judgment in the respective cases. Given that alter-ego of Adeokin Records and the 2nd respondent in the matter is deceased and Compact Disc has since ceased operations in Nigeria, Sandra Oyewole questioned the practicalities of commencing trial in the matter. She expressed concern regarding the SC’s decision in Compact Disc, which held that MCSN had a right of action given that the assignments of copyright to MCSN were made prior to the commencement of section 17 of the Copyright Act. [Section 17 stipulates that, in the absence of a licence from the NCC, an entity involved in the business of a CMO cannot institute an action for copyright infringement.] She re-echoed the opinion of this Africa Correspondent that the Supreme Court neglected the issue of when the cause of action arose as being germane to the question of whether or not section 17 applied to MCSN. She concluded by stating that the NCC should consider the possibility of further amending the Copyright Act within the Amendment Bill in ways that clarify its regulatory control over CMOs. In response, both John Asien and NCC’s Obi Ezeilo (Director of Prosecution) noted that the Supreme Court and lawyers in both cases lumped owners, assignors and exclusive licensees together as if the expressions meant the same thing.

Weighing in from the IP Unit of the University of Cape Town, Open AIR Researcher, Desmond Oriakhogba (via video conferencing) provided a brief summary of his analysis on the issue of locus standi of CMOs published in the Journal of IP Law and Practice (JIPLP): see here and here. He observed that despite the perceived shortcomings of the two decisions, the Supreme Court did not abrogate the powers of the NCC to regulate CMOs. Particularly, it is still a crime, by virtue of section 39 of the Copyright Act, to operate the business of a CMO without the requisite license from the NCC. He re-echoed Sandra Oyewole’s suggestions while adding that the NCC should consider approving more CMOs especially in the music industry with its multiplicity of rights and that more should be done to apprise the courts of developments in copyright law and practice.

...around the table

Panel Discussions
John Onyido (SPA Ajibade & Co.) opined that the two decisions reflect the lack of specialist knowledge of copyright law in Nigerian courts. He also noted that lawyers should step up their game in research and continuing legal education especially given the complexities of copyright law and IP law, generally. He re-echoed Desmond’s suggestions regarding approving additional CMOs. John Asien agreed with the suggestion for continuing legal education for judicial officers and practising lawyers, indicating that the NCC had plans underway regarding training for judicial officers on copyright law.

Mena Ajakpovi (Udo Udoma & Bello-Osagie) discussed the many ways in which the decisions may breed indiscipline and anarchy in the collective administration of copyright. He noted that his firm has been asked to represent a company sued by Collecting Society of Nigeria (COSON) for copyright infringement wherein COSON has described itself as “owner, assignee and exclusive licence of copyright”. To Mena, this “catch phrase” is one enabled by the decisions of the SC and is particularly alarming given that the public is aware that COSON is a collecting society whose license has been suspended: see here. Citing the example of Trademark Regulations regarding service marks, he recommended an amendment of the CMO Regulations in a manner that addresses the adverse effects of these decisions.

The Panel session ended with a contribution from this IPKat contributor offering highlights from previous posts on the practical outcomes of the subject discussions. 3 key points follow from the decisions that would ensure that CMOs and pseudo CMOs remain with the NCC’s regulatory control: the need to clarify the business of a collecting society as such clarification will guide practitioners and courts in better identifying organisations who are collecting societies in the eyes of the law; the need for a corporate governance code or best practices for governance of collecting societies and the imperative to make the powers of the NCC effective through compelling compliance and dissuading non-compliance. Following from those key points, some next steps for the Commission were recommended. These include: providing a more robust corporate governance rules; making the powers of the NCC in corporate governance issues of CMOs effective; and greater scrutiny of documents (e.g. consent letters/deed of assignment issued by right-holders to the CMOs) submitted by prospective CMOs when seeking the NCC’s approval to operate. Both John Asien and NCC’s Mike Akpan (Director of Regulatory Affairs) noted the suggestions and indicated that apart from taking steps to make its regulatory powers more effective, the NCC was already collaborating with WIPO on adapting WIPO’s best corporate governance practices for CMOs in Nigeria.

More suggestions
The roundtable ended with NCC's Mike Akpan heading an open discussion with all participants identifying issues (e.g., adverse effect of the decisions on the regulatory abilities of the NCC over CMOs, the continued application of the provisions of the Copyright Act under which the NCC may still regulate CMOs), the failure of the decisions to capture the spirit and practice of the industry as it relates to the Copyright Act, etc.) and discussing potential future actions, legislative and regulatory changes, administrative changes, etc. to address some of the issues. Several participants encouraged the filing of amicus briefs to courts on complex copyright issues when they come up in courts. Participants hope that the NCC will pay special attention to an inclusive education on copyright, copyright law and practice that includes judges, practitioners, right-holders and other stakeholders and further review of policy and regulatory documents with respect to CMOs.

Overall, it was a highly informative roundtable with excellent questions and observations from the audience and panellists. It is quite good to see that the new Director-General, John Asien is keen to have the Commission provide regulations and directions that are practicable and tested by practitioners and researchers knowledgeable in copyright law, for the Nigerian copyright system. It is now left to see action from the NCC and more issues that would come up for discussion in subsequent roundtable events. 

Photo by Obi Ezeilo (NCC).