Intellectual Property, Insights

Administration of Copyright Royalties: The Legal Quagmire of Collective Management Organizations in Nigeria.

Collective Management Organization’s (“CMO”) or Collecting Societies serve as an intermediary between owners of copyrighted works and users of such works. A CMO’s primary function is to negotiate, grant copyright licenses and collect royalties on behalf of copyright owners. It is not possible for a copyright holder to effectively monitor all avenues where the work is being used or infringed. For instance, the owner of a musical work cannot monitor all malls, bars, digital platforms, and other avenues where the work is exploited for commercial purposes.

CMO’s help bridge the gap as they license prospective users of copyright works, and collect royalties for the use of the works, which they distribute among copyright owners on whose behalf they act. CMO’s act as facilitators, they enable owners of copyright works obtain proper renumeration for their creative works while they enable easy access to these works by users. Without the CMO’s, it may be impossible for users of copyright works to identify owners of protected works in order to clear the rights associated with the works. The CMO’s have been described as a “clearing house”.

Section 39 of the Copyright Act provides for the creation and licensing of CMO’s by the Nigerian Copyrights Commission (“NCC”). It provides that a collecting society may be formed in respect of one or more rights of copyright owners for the benefit of such owners. Generally, the owner of copyright in a work has the right to exclusive control of that work. In the case of literary and musical works, the copyright owners have the exclusive right to reproduce, publish, perform, distribute or adapt the work amongst other things. A CMO may be established to administer one or more of the stated rights for the benefit of the right owners. Currently, according to the NCC website, there are three approved CMO’s by the NCC which administer different categories of rights, they include;
a. Reproduction Rights Organisation of Nigeria (RERONIG), a collecting society for literary and publishing.
b. Musical Copyright Society of Nigeria (MCSN), a collecting society for musical works.
c. Audio-Visual Rights Society of Nigeria (AVRS), a collecting society for cinematograph films.

The Copyright Act does not place a limit on the number of CMO’s that can be created and licensed by the NCC. However, Section 39(3) appears to create a limitation by barring the Commission from approving another society in respect of any class of copyright owners, if it is satisfied that an existing CMO adequately protects the interests of that class of copyright owners. While this does not prohibit the NCC from approving multiple CMO’s, it limits them to approving one for each class of right, except where existing ones do not effectively protect the interest of members. For now, the NCC has one licensed CMO for each class of copyright; RERONIG for literary works, MCSN for musical works and AVRS for cinematograph films. There have been calls to license more CMO’s to promote competition, eliminate monopoly, liberalize administration of copyrights, and give authors the benefit of choice.

In 2009 the Copyright Society of Nigeria (COSON) was licensed as the sole CMO in the music industry. At this time, COSON was the only approved CMO for musical rights. In the case of MCSN V. NCC, MCSN challenged the approval of COSON as the sole CMO for musical rights, arguing that MSCN has a right to administer musical rights without license by the NCC. The major plank of their argument is that Section 39 and 17 of the Copyright Act is unconstitutional as they restrain an unregistered body from administering and enforcing copyrights. MSCN argued that it amounts to a violation of their right to property. The court discountenanced MCSN’s arguments holding that it is illegal to act as a CMO without obtaining approval from the NCC…

 

 

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