About a week ago, I walked into a mall to do my regular monthly shopping. As I approached the mall, a particular departmental store caught my attention. It had all I needed and as a further attraction, there was a nice mix of Nigerian hip-hop music playing in the background. I could not have chosen a better place to do my shopping, I thought to myself.
After picking the items I needed, I approached the cashier and asked, “do I have to pay for these?” and she warmly responded, “of course Sir, you have to, this is our stock in trade, we don’t do charity.” Then I asked her further, “do you have a license to play this mix of songs you are playing right here?” Her response was “of course we bought and paid for the compact disc, so it’s ours”. I settled the bill and said goodbye.
The above scenario leads us to the salient, but often overlooked topic of discourse, “Musical Royalty”. Have you ever thought of going to a club and having a drink without paying for it or going to the market to pick up goods without paying for them? An individual who does this will probably be considered a thief- right?
But this is actually equivalent to performing someone else music or playing their music through loudspeakers to the public, without their consent.
Musical Royalty is the amount due to an artist for the performance or reproduction of his musical work by another for business reasons. It includes, but is not limited to Tour Merchandising, which is the type of royalty paid to artists for using their names as a brand to sell goods; Mechanical Royalty which is the royalty paid to an artist on every copy reproduced of his work. In the USA for example, an artist is entitled to between 91 cents and 1.75 Dollars per minute for every reproduced copy of his work. Performance Royalty, which is our discourse focus, is the amount paid to a copyright owner for public performance of his song by another person, where such performance could either be reproduced live or played in a recorded form in public places such as clubs, bars, restaurants e.t.c.
The legality of performance royalty in Nigeria is rooted in the Copy Right Act , which outlines what is eligible for copyright. They include; (a) literary works; (b) musical works; (c) artistic works; (d) cinematography works;(e) sound recording; and (f) broadcasts.
By the Act, copyright is the exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same. The copyright owner of a musical work has exclusive right over the musical production through his/her lifetime and even up to 70years after the death of the owner for individuals, while the validity period is 70years after the end of the year the work was first published for corporate entities and government.
The owner of a copyright has the exclusive right to control the use of such copyright in Nigeria and the power to authorize anyone to; (i) reproduce the work in 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.
Where any of the above acts is done by another, a cause of action arises against the violator and entitles the copyright owner to declaratory and monetary reliefs. The Nigerian CopyRights Commission is the agency responsible for the registration of copyrights in Nigeria .
Whilst the law may be adequate, its enforcement has over the years, remained a challenge in Nigeria; it is certainly an uphill task for individual artists to track their music through radio stations, television stations, malls, clubs, lounges, and so on, with a view to monitor the reproduction of their music.
This obvious challenge has necessitated the formation of a uniform body of performing artists saddled with the responsibility of ensuring that musical works of authors are not performed by third parties without requisite permit and accompanying royalty paid for same. This body is known as the Copyright Society of Nigeria (COSON).
COSON was formed in 2009, with the likes of Ebenezer Obey, Victor Uwaifo, Onyeka Onwenu, Dan Maraya Jos, amongst others, as the founding members . Its membership is open to all musical artists, song writers and affiliates in Nigeria, and today boasts of a vast majority of the musical artists in Nigeria who have authorized the performance of their musical work through COSON, who has a duty to collect royalty on their behalf.
In administering its duties, the members at an AGM decides how much will be paid to all members irrespective of the amount of use of their works .
The question is whether in reality, artists are able to enjoy royalty in proportion to the use of their work? The sad reality is that compliance to the Copyright Act in respect of musical work is still very low and majority of music producers are not even aware that the law exists.
If the authors of musical work must get the royalty they truly deserve from third party users, COSON must actively enlighten the masses on the provisions of the law, its implications and the requirement for its enforcement, and endeavor to take legal action against persons who infringes on their members’ intellectual property. This will ensure adequate compensation to music artists and ultimately promote growth in the Nigerian music industry
Bright Odia is an associate, in the Dispute Resolution and Commercial Practice Groups in StrachanPartners with core interest in Maritime, Energy and Intellectual Property practice.