http://ipkitten.blogspot.com/2019/01/technicalities-in-copyright-litigation.html

Supreme Court of Nigeria

Over the past few years, Nigeria has seen a number of cases tackling the vexed issue of locus standi of collecting societies.

Katfriend Chijioke Okorie (Penguide Advisory) reports on the latest instalment.


Here’s what Chijioke writes:


“The Nigerian Supreme Court has delivered yet another judgment bordering on the capacity (locus standi) of a “pseudo” collecting society to institute an action for copyright infringement. On the 14th of December 2018, the Supreme Court delivered its judgment in Appeal No. SC/425/2010 – Musical Copyright Society of Nigeria Limited (MCSN) v Compact Disc Technology Limited and 2 Others, holding that MCSN had the capacity (locus standi) to institute the suit as owner, assignee and exclusive licensee of copyright. The court relied on its earlier judgment in Adeokin Records & another v MCSN (SC/336/2008), reported on the 1709 Blog, here.


The Court observed that, similar to the situation in Adeokin Records, the rights in issue at the trial court level had been obtained prior to the commencement date of the Copyright Amendment Decree No. 42 of 1999 (specifically section 17 of the Nigerian Copyright Act): see pages 30-32 of the decision. Section 17 stipulates that, in the absence of a collecting society licence from the Nigerian Copyright Commission (NCC), an entity involved in the business of negotiating and granting licences, distributing royalties or having more than 50 members who are copyright owners cannot institute an action for copyright infringement.


As section 17 could not apply retrospectively, the Court held that it was inapplicable to the suit and that MCSN as exclusive licensee of copyright, had a right of action.


Comment


All through the judgment in this case, there was a lot of talk on the issue of whether MCSN had a right of action retained or lost in the face of its non-compliance with the requirement of approval from the NCC. However, the right of action of MCSN as the owner and exclusive assignee of the rights in the suit was not in doubt.


What was disputed was whether this exclusive assignee of copyright (i.e. MCSN) had a cause of action for copyright infringement when by virtue of the applicable law it might have lost its right to sue in the absence of compliance with the relevant condition precedent. As the court noted in its judgment in the Adeokin Records, the applicable law is the law at the time the cause of action arose: see page 18 of the Adeokin Records.


The cause of action against Compact Disc as stated in the Statement of Claim arose in 2006, that is clearly after the commencement date of Copyright Amendment Decree No. 42 of 1999. Accordingly, the key question should not have been whether MCSN had a right of action. It clearly did. The question should have been whether that right of action continued to exist in the absence of NCC’s approval to operate and in circumstances where the cause of action was in copyright infringement.


The Supreme Court rightly held that section 17 of the Copyright Act would not apply to rob a “pseudo” collecting society of the required locus standi if such entity obtained the exclusive rights in question prior to 10th May 1999 (the commencement date of Copyright Amendment Decree No. 42 of 1999). However, in looking only to the issue of right of action of an owner, assignee and/or exclusive licensee of copyright, the court did not appear definitive on the question of locus standi as it relates to copyright infringement occurring after the commencement date of the Decree. Indeed, the right of action will only exist if the condition preceding (in this case, the approval of the NCC) the conferment of the right is met. For example, Nigerian citizens above the age of 18 have a right to vote under the constitution. But, the electoral laws require eligible voters to have a permanent voter’s card (PVC) in order to vote. In the absence of the PVC, an eligible voter who was prevented from voting cannot harp on his/her right to vote as he/she has no right to vote in such circumstances.

Kat standing

In the present circumstances, it would have been helpful for the court to make a definitive statement regarding entities such as the MCSN which at the time of instituting the suit had the object of negotiating and granting licenses and collecting and distributing royalties, without the approval of the NCC. That is not say that the Supreme Court was wrong to focus solely on issues canvassed before it – whether section 17 had retrospective effect in removing a property right (copyright) that existed prior to the commencement of that provision. This is clearly permissible.

 
There is no gainsaying the fact that when clients pay counsel to commence litigation on their behalf, they are paying for results within the ambit of the law. However, while technicalities such as “relying on absence of retrospective effect in relation to a right of action” gives quick results to clients and is clearly permissible under the law, it leaves Nigeria’s copyright law and policy weak.


As opined elsewhere, the courts in Nigeria are yet to categorically define the concept of the “business” of a collecting society even though they acknowledge that collecting societies are owners, assignees and exclusive licensees of copyright by virtue of the assignment given to them by each of their members. A definition of this concept will help to determine which entities require the approval or licence of the NCC to validly operate and to have the locus to sue for copyright infringement occurring at a time when such entity should have obtained approval from NCC. While South Africa has sought to provide this definition by legislation, neither Nigeria’s courts nor its Copyright Amendment Bill, which is currently before the legislative arm of government, has devised a definitive solution to this conundrum.”

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