CHIMEREMEZE NWACHUKWU, LLB

HENRY A. UZUKE, LLB

28th  Sept, 2023 : 9:16am

In recent times Afriobeat has created a theatre where Nigerian creativity is displayed in all its excellence and artists like Mohbad shone brilliantly, but as recently revealed this same industry often saw artists subjected to the shadows of exploitation and oppression. Mohbad, a rising music star whose life was tragically cut short, serves as a poignant reminder of the challenges faced by creatives in Nigeria as he still faces legal battles on the ownership of his creative works and intellectual property. His story underscores the pressing need for comprehensive protection of creative works, a need partially addressed by the previous copyright’s laws in Nigeria. At the top of creative works in Nigeria is the music industry and this can be seen in its stretching its influence across the world. Afrobeats, the country's unique blend of West African rhythms and global pop, has become one of the most popular genres in the world. At the forefront of this success are superstar artists like Wizkid, Davido, Burna Boy, and Tiwa Savage. The Nigerian music scene drives billions in revenue and employs thousands across the country. This thriving industry now faces major changes with Nigeria's new Copyright Act signed into law in 2022. The legislation implemented sweeping reforms to the country's copyright framework, with major implications for music rights holders and distributors. A key aspect was extending the copyright term for musical works to 70 years after the creator's death, up from 50 years. On the surface, this change seemingly benefits the industry by strengthening legal protections. But it also introduces new complexities around monetizing older works in Nigeria's catalogue. As the law takes effect, stakeholders across the Nigerian music landscape are assessing how it will shape the market and their strategies moving forward.

General Protections Offered by Copyright Laws in Nigeria

a.       Copyright Ownership and Duration

Copyright laws in Nigeria provide creators with exclusive rights to their creative works, granting them legal ownership. This means that if you create something like a piece of music, a painting, or a novel, you have the special right to say who can use it and how they can use it. Imagine you're a musician, and you wrote a beautiful song. With copyright, you can decide if other people can sing your song or use it in movies or commercials. This right lasts for a very long time, even after you pass away. So, it's like you can protect your creative work for your lifetime and even leave it as a valuable gift for your children and grandchildren.

b.       Reproduction and Distribution Rights:

Under Nigerian copyright laws, creators have the exclusive right to reproduce and distribute their works. This means that others cannot make copies of your work, whether it's a book, a painting, or a song, without asking for your permission. Let's say you're an author, and you wrote a fantastic book. With copyright, you can decide who can print more copies of your book and sell them. This helps you make sure that your work isn't copied and sold without you getting paid for it.

c.        Public Performance and Communication to the Public:

Copyright laws also give creators the special right to perform their works in public and share them with the public. This is important for artists, musicians, and filmmakers. Imagine you're a musician, and you have a concert where you sing your songs in front of a big audience. With copyright, you can control who can perform your songs in concerts, on TV, or on the radio. This helps you earn money when people enjoy your music in public places.

d.       Moral Rights:

Nigerian copyright laws include something called "moral rights," which protect the personal and reputational interests of creators. This means that you have the right to be recognized as the creator of your work, like putting your name on a painting or a song. Also, you can say no if someone wants to change your work in a way that would make people think badly of you. For instance, if you're a painter, you can make sure your painting isn't altered to show something you don't believe in.

e.       Adaptation and Derivative Works:

Creators in Nigeria also have the right to control changes and new creations based on their original work. This means that if you're a writer and someone wants to turn your book into a movie, you can say yes or no. You can make sure your work isn't changed or turned into something you don't like. For example, if you wrote a popular book, you could decide if it becomes a movie or stays as a book.

f.          Fair Use and Fair Dealing Provisions:

While copyright gives creators lots of rights, there are also some special rules called "fair use" and "fair dealing." These rules allow people to use parts of copyrighted works, like quotes from books or short clips from movies, for things like school reports, news stories, or funny videos on the internet. It's like a balance between protecting creators' rights and letting everyone share ideas and information. These copyright protections help make sure that artists and creators are rewarded for their hard work, and they encourage the sharing of creative ideas while respecting the rights of creators.

A highlight on the introductions of the new copyright Law (Copyright Act of 2022)

Now because there still existed some reviews needed to be done to the old copyright laws in the country, the 2022 Copyright law was brought in to continue where it predecessors had stopped and It introduced now new and in some instance reviewed changed. These changes include:

a.   The Nature of Protection of Literary, Artistic and Musical Works - Section 2(2) of the Copyright Act of 2022

In the repealed Copyright Act, "sufficient" efforts must be expended by a copyright owner making a work to give it an original character for copyright to subsist in any literary, artistic or musical work, in addition to being expressed in a fixed medium. However, under the Act, this position was altered so that the author now only needs to exert "some" efforts in making the work for originality, in addition to being expressed in a fixed medium. It was provided further that any work that meets these requirements shall be eligible for copyright protection notwithstanding the quality of the work or the purpose for which same was created. It is our view that this altered provision may likely lead to increased infringement and plagiarism due to the seemingly reduced originality requirement for copyright protection. A novel provision has also been included, which stipulates that a work will be ineligible for copyright if, at the time the work was made, it is intended by the author to be used as an industrial design.

b.       Longer Term, Bigger Payday for Legacy Artists

Nigeria's new 70-year copyright duration brings it in line with international standards adopted by the United States and Europe. Industry executives view this as a positive step towards better integrating Nigeria into the global music economy. For older, back-catalogue music still under copyright, the extra 20 years of protection is a valuable asset for owners. Legendary Nigerian performers from the 1960s, 1970s, and 1980s stand to benefit tremendously. Rightsholders for deceased artists like Fela Kuti, Oliver De Coque, and Osita Osadebe gain decades more of licensing and royalty payments. Living artists from this era such as Flavour N’abania and Bright Chimezie also enjoy more time to earn income from their classic hits. But exploiting these extended copyrights to generate value requires organization and infrastructure. Collecting societies like the Copyright Society of Nigeria (COSON) will be challenged to identify rightsholders, issue licenses, and distribute royalties accurately when older works get used. Music released decades ago often lacked proper label records, publishing information, and Catalogue data. Rights frequently changed hands without documentation. COSON is currently undertaking a major initiative to upgrade its expired songs database. But it relies heavily on cooperation across record companies, artists families, publishers, and other groups. Other industry executives echoed this sentiment and are similarly encouraging rights holders - especially for older catalogues - to register and upload complete data to COSON. Smooth licensing and payment systems will be crucial for realizing the financial gains of longer copyrights.

c.        First Ownership of Copyright – Section 28 of the Copyright Act 2022

The Law stipulates that copyright initially belongs to the author of a work unless there is a different agreement in place. Furthermore, it specifies that when someone privately and domestically commissions the creation of a photograph, portrait, or audio-visual work, and there's no contrary agreement, that person is granted a non-exclusive license to use the work for non-commercial purposes. They also have the right to prevent the public publication, exhibition, broadcasting, communication, or distribution of the work. This section of the Law also covers works commissioned under contract of service or employment by government departments, international entities, or inter-state governments. In these cases, copyright ownership in the work typically belongs to the employer or government unless there's an agreement stating otherwise. The Law acknowledges the concept of collective works and outlines that the copyright for such works is vested in the individual who initiated or directed the creation of the work. Additionally, it ensures that authors of works incorporated into a collective work retain the right to independently use their works, separate from the collective work's copyright.     

d.       Renumeration for Broadcast of Works – Section 16 of the Copyright Act 2022

The Act states that when a broadcast organization airs an audio-visual work containing a literary, musical, or artistic piece, and they have permission from the copyright holder of the audio-visual work, it's assumed that the copyright holder of the literary, musical, or artistic work has also granted permission for the broadcast. This assumption holds unless there's a specific agreement saying otherwise. However, the broadcast organization must pay fair compensation to the copyright holder, and if they can't agree on the amount, the National Copyright Commission (NCC) will determine it. Additionally, the Act specifies that when a sound recording and the performer's work are broadcasted for commercial purposes, the person using the sound recording or copies of it must provide compensation. The exact amount should be agreed upon by the user, the copyright owner, and the performer or their representatives. If they can't agree on the amount, the NCC will step in to decide. Furthermore, the Act outlines that if more than one Collective Management Organization (CMO) is responsible for collecting compensation on behalf of a performer and the sound recording's copyright owner, these CMOs should agree on who will handle the collection. If they can't agree, the NCC will step in to make the decision.

e.       Access to Works by Disabled Persons - Section 36 of the Copyright Act of 2022

In compliance with international copyright treaties, and perhaps to give effect to the contents of the Marrakesh Treaty, the Act makes provisions permitting the reproduction of a literary and artistic work in which copyright subsists in a form accessible to print by the blind and visually impaired. Interestingly, the reproduction is permitted to be done by the authorised entity without consent of the copyright owner. It is our view that this provision offers an exception/limitation to acts that would otherwise constitute copyright infringement in addition to those under the repealed Copyright Act and would foster more social inclusion for the blind or visually impaired.

f.         Provisions on Performers' Rights - Section 63(3) of the Copyright Act

The Act introduces significant changes to protect the rights of performers, with a focus on ensuring they receive fair compensation. According to the Act, performers now have exclusive control over their performances. This control includes the ability to decide how their live performances are recorded and reproduced in any way or form. Performers also have the right to broadcast or share their performances with the public, as well as control the rentals and public sharing of recordings of their performances. What’s interesting is that the Act grants moral rights to performers concerning their performances. These moral rights can be passed on during a performer's lifetime, either through their will or by legal inheritance after their passing. These moral rights continue for as long as the performer's copyright lasts. It's worth noting that the previous Copyright Act did not extend moral rights to performers.

Additionally, the Act eliminates the overarching "neighbouring rights" provision, which covered performers' rights and rights related to folklore. Instead, it stipulates that agreements regarding these rights should be reached among the user, the rights holder, and the performer or their representatives. If they can't reach an agreement, the National Copyright Commission (NCC) will step in to decide. Further, the Act provides that where remuneration is to be received on behalf of a performer and the copyright owner in the sound recording by more than one CMO, the CMO concerned shall agree on which of them shall collect such remuneration on their behalf, failing which the NCC will intervene and decide the receiver. We note that under the repealed Copyright Act such determination was left to the Court.

N/B: Please note that this information is not a comprehensive overview of the topic and one would need tailored advice from a legal professional in respect to their particular situation. You may reach out to a qualified legal practitioner close to you.