Telecom operators are increasingly defending copyright-infringement suits by players in Nigeria’s music industry. 

Copyright-infringement claims are getting bigger and bigger in Nigeria. Most of these big claims are coming from players in Nigeria’s entertainment industry against telecommunications giants. This development is not surprising. Nigeria’s fast-growing entertainment industry is now one of the biggest in the world. Nigeria’s telecommunications industry is also the biggest in Africa. More and more players in Nigeria’s entertainment industry are also increasingly seeing intellectual property as big business, thus taking enforcement and protection of their intellectual property rights (IPR) more seriously. And on the negative side, IPR is not what most Nigerians respect—either because Nigerians don’t understand the concept of intangible assets or they are just reckless about the consequences of infringing IPR. When you consider these four factors, the result is what has been playing out in Nigeria’s entertainment industry in recent years—suing big for damages over copyright infringements.

Copyright Society of Nigeria (COSON) slams 16 billion naira copyright-infringement suit on MTN.

In May 2016, Nigerian musicians and songwriters sued MTN for infringing their copyrights in musical works and sound recordings. The songwriters and musicians wants MTN to pay 16 billion naira for the alleged infringements. Filed by Nigeria’s government-approved collective management society Copyright Society of Nigeria (COSON) at the Federal High Court in Lagos,[1] the suit has been reported to be Africa’s biggest copyright suit.[2]

16 billion-naira as damages for copyright infringements in Nigeria is indeed big. Apart from the billions of naira, the parties are big and the scope of copyright infringements alleged is also big. If what is contained in COSON’s Statement of Claim against MTN is true, what MTN has done is use and sell musical works and sound recordings to its subscribers and the public without license. This is why COSON is asking the Federal High Court to declare the various acts by MTN’s service centres and media platforms illegal acts amounting to copyright infringements. According to COSON’s claim, MTN infringed copyrights in COSON’s musical and sound recordings through MTN Friendship’, ‘Connect’ or ‘Walk In’ Centres across Nigeria; MTN ‘Road Shows’ in Nigeria; and various MTN Music Concerts, Festivals, Award Shows. Other platforms are MTN Product Activations and Corporate events; MTN Callertunez platform; MTN Music Plus Platform, and MTN Mobile Radio. It’s practically the entire MTN family.

From COSON’s Statement of Claim, it really wants the hammer to fall heavily on MTN.

COSON states that it had taken several steps to get MTN to obtain appropriate licenses and pay due royalties to COSON. But MTN has behaved “as if it is above the law”, says COSON. Judges don’t like that. Defendant’s conduct matters in infringement cases—it matters a whole lot. If the Federal High Court finds that MTN is as bad as COSON claims, the hammer will most likely fall heavily on MTN. But 16 billion naira? I don’t know. The latest development is that COSON and MTN have started exploring an out-of-court settlement of the copyright-infringement suit.[3]

Out-of-Court settlement is not so healthy for IP development in Nigeria.

Out-of-court settlements for copyright infringements are becoming a trend in Nigeria. This is more common with cases involving telecom operators.

Before COSON’s 16 billion-naira suit, Dovie Omenuwoma’s (nicknamed “Baba 2010”) 500 million-naira copyright suit against MTN Nigeria in September 2015 was also reported by Sahara Reporters as “Nigeria’s biggest copyright infringement [claim]”.[4] The allegation was that MTN Nigeria infringed on his copyright by turning four of his musical works into MTN caller tunes and ringtones and selling both caller tunes and ringtones without his permission. On the criminal-action side, the Nigerian Copyright Commission (NCC) had also filed criminal charges against MTN Nigeria over the infringement at the Federal High Court Abuja division in December 2015.[5] But the matter was eventually settled out of court.[6] Typically.

Though exploring alternative dispute resolution (ADR) option is a good thing, it is not so healthy for a jurisdiction where IP laws have not really benefitted from the thorough tests that IP litigation typically provides.

By the way, the X-Factor Nigeria case with over 500 billion naira claim is the biggest copyright-infringement suit in Nigeria.

The X-Factor Nigeria dispute in International Pageant & Films and Prince Chudi Charles Chukwuani v Nigerian Copyright Commission & Others[7]is the biggest copyright-infringement suit in Nigeria, not COSON’s suit against MTN (as now being widely reported). I like to call it The X-Factor Nigeria case. This time, MTN was not the defendant. Globacom Limited, the only telecom operator in that case, was the 3rd defendant. Other defendants include the Nigerian Copyright Commission (NCC), Daar Communications, MultiChoice Nigeria (Sound City Channel), Nigerian Television Authority (NTA), Silverbird Communications Ltd, etc.

In that case, the Plaintiffs sued for infringement of “The X-Factor Nigeria”, a singing reality TV show registered as events and organization scheme in the International Serial Book Number (ISBN) 978-978-50677-7-4. The “The X-Factor Nigeria” brand was also registered as a trademark. The Plaintiffs sued for N250,135,200 as special damages, N500 billion naira as general damages, and over 800 million naira for costs. The biggest copyright-infringement claim in Nigeria ever, there is no report to show that the matter went the whole hog of litigation. It just disappeared. I suspect another out-of-court settlement.

Telecom operators must respect copyright law in Nigeria, otherwise they will keep buying lawsuits.

To avoid the growing rate of copyright infringement in Nigeria’s music industry, telecom operators must respect copyright laws. In copyright law, obtaining permission from a copyright owner for use of a copyrighted work is the most basic rule. It is neither funny nor smart to break this basic rule. When broken, particularly in today’s digital age, you will most likely buy yourself a lawsuit.

I don’t understand how or why any telecommunications company in the 21st century will use a musical work as caller tune or ringtone for their subscribers without obtaining the copyright owner’s permission. I also don’t understand why a telecommunications company will use a sound recording in a concert, musical show, or on its radio services without obtaining due permission. No telecom operator or any person should be allowed to do this. Unauthorized use of a copyright work is illegal. Upon infringement, the copyright owner has the right to sue for damages through civil action or sanctions through criminal action, or even both.[8]

Musical works and sound recordings are protected works under the Nigerian Copyright Act.

Under section 1(1)(b) and (e) of the Nigerian Copyright Act, musical works and sound recordings are eligible for copyright protection respectively. Once a songwriter or musician has copyright in a musical work or sound recording, that songwriter or musician enjoys the statutory benefits contained in section 5(1)(a). These benefits include copyright owner’s authority to reproduce the song; perform the song in public; distribute the song to the public for commercial gains; adapt the song; translate the song; etc.

Today’s digital environment has neither changed the principles nor scope of copyright laws.

Nigeria’s music industry, as other music industries around the world, relies on royalties generated through copyright licensing as revenue for songwriters and musicians. Though millions of songs can now be downloaded or streamed  on the Internet, the legal principles behind copyright protection remain the same. The scope has not also changed. Except the musical work or sound recording is in the public domain (70 years in Nigeria and most countries), it is illegal to do any of the acts stated in section 5(a) of the Nigerian Copyright Act without due license.

For royalty-payment purposes, Telecom operators must appreciate the distinction between a songwriter’s copyright in a song and a performing artist’s copyright in the same song.

Telecom operators need to appreciate that in the music world a songwriter and a performing artist are not always the same person. Telecom operators don’t seem to appreciate the distinction when paying royalties. A songwriter’s copyright is different from a performing artist’s copyright in the same song, if the person who wrote the song is different from the person who performed the song. The songwriter has copyright to the lyrics, while the performing artist has copyright to the sound recording. While copyright to a song is assigned to music publishers, copyright to the sound recordings is typically assigned to a record label.

This is why under section 1(1) of the Nigerian Copyright Act, musical works and sound recordings are provided for separately under paragraphs (b) and (e) respectively. The implication is that a telecom operator that turns a song into a caller tune or ringtone or plays the song in a road show must pay separate royalties to both the songwriter and the performing artist of the song otherwise it amounts to copyright infringement.

The growing rate of copyright infringements by telecom operators need special and urgent regulatory attention.

Telecom operators have massive platforms—both physical and digital— with which musical works and sound recordings are made available to millions of subscribers. Using those physical and digital platforms to infringe copyrights in musical works and sound recordings will discourage talents in the music industry. It will badly hurt the copyright owner’s revenue since they won’t be making money from their intellectual works. It will also hurt public revenue since musicians and their record labels whose copyrights have been infringed will not pay taxes on unpaid royalties. This will discourage many investors from putting their money in Nigeria’s music industry.

To prevent the situation above from becoming worse, regulators must become more proactive in providing efficient and effective copyright protection in Nigeria’s music industry. The “NCCs”—Nigerian Copyright Commission (NCC) and the Nigerian Communications Commission (NCC)— should work together to provide digitally-friendly copyright regulations to govern the growing relationship between Nigerian musicians and telecom operators. This will ensure a happier, healthier, and safer copyright regime that will enable the Nigerian music industry realize its full potentials in today’s digital age.

[1] Copyright Society of Nigeria v Mobile Telephone Network suit no. FHC/L/CS/619/2016

[2]“COSON takes MTN to Court”, The Nation Online”, The Nation, 11 May 2016, http://thenationonlineng.net/coson-takes-mtn-court/

[3] “COSON and MTN Meet to Resolve N16 Billion Copyright Lawsuit”, NLIPW, 2 January 2017, http://nlipw.com/coson-mtn-meet-resolve-n16-billion-copyright-lawsuit/

[4] “Nigeria’s Biggest Copyright Infringement: MTN Nigeria Set To Face A Lawsuit”, Sahara Reporters, 12 September 2015, http://saharareporters.com/2015/09/12/nigerias-biggest-copyright-infringement-mtn-nigeria-set-face-lawsuit-ijebu-afoke-dickson

[5] “NCC files criminal charges against MTN over alleged copyright infringement”, Vanguard, 18 December 2015 http://www.vanguardngr.com/2015/12/ncc-files-criminal-charges-against-mtn-over-alleged-copyright-infringement/

[6] “MTN to settle ‘Baba 2010’ N500m Copyright suit out of court—Lawyer”, 24 November 2015, http://www.vanguardngr.com/2015/11/mtn-to-settle-baba-2010-n500m-copyright-suit-out-of-court-lawyer/

[7] Suit no FHC/Abuja/CS/591/2013

[8] See my article, “Copyright Owners and Civil Remedies for Copyright Infringements in Nigeria: Sleep No More!”, 13 September 2013 “ http://nigerianlawtoday.com/copyright-owners-and-civil-remedies-for-copyright-infringements-in-nigeria-sleep-no-more-2/

 

About the author

Senator Iyere Ihenyen

Senator Iyere Ihenyen writes on Information Technology and Intellectual Property. He contributes to Legal Technology and Today's Lawyer. Senator is the Lead Partner of Infusion Lawyers, an IP & IT law firm.

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