Encomium
Chief Tony Okoroji, Chairman, Copyright Society of Nigeria (COSON), the nation’s sole approved copyright collective management organization for musical works and sound recordings has commended the Court of Appeal for its recent judgment in MCSN v. Details (Nig.) Ltd (CA/L/506/1999). In the words of the former president of PMAN and author of the ground breaking book, Copyright & the New Millionaires, “I have read the judgment eight times and cannot fault it. The Court of Appeal has clearly restated everything we have been saying over the years with respect to the misadventure of the unapproved MCSN. The court has punched mighty holes on every claim by the recalcitrant group to justify its unlawful operation”.
According to Chief Okoroji who is one of Africa’s most sought after experts on copyright collective management, “the beauty of the recent judgment is that it is very clear and lucid. There is no way to spin it. It is on all fours with the earlier decision of the Court of Appeal in MCSN v CDT(CA/L/787/2008) and the October 2014 judgment of Justice O.E. Abang of the Federal High Court in MCSN v COSON & NCC (FHC/L/CS/377/2013). The decision of the courts will help stabilize the collective management of copyright in Nigeria, boost the economic value of creativity in the nation and chase away the charlatans who want to turn collective management of copyright into an unregulated and unsupervised free-for-all den of thieves”
The full text of the Court of Appeal decision in MCSN v. Details (Nig.) Ltd (CA/L/506/1999) read by Hon. Justice Joseph Shagbaor Ikyegh on Thursday, May 28 is now available at http://goo.gl/ahKgHz The decision supported by Hon. Justice Amina Augie and Hon Justice Jamilu Yammama Tukur has indeed buried any little hope that MCSN group may have ever had of operating as a collecting society in Nigeria without the approval of the Nigerian Copyright Commission (NCC).
In the judgment, the Court of Appeal vehemently rejected the long advertised position of MCSN that Section 32B of the Copyright Act (now Section 39) which requires anyone wishing to operate a collective management organization in Nigeria to first obtain the approval of the NCC is unconstitutional. Slamming MCSN’s argument that the section infringed on its right to freedom of association as provided in Section 40 of the Constitution of the Federal Republic of Nigeria 1999, Justice Ikyegh said that the argument cannot hold ground. Summing up his position, Justice Ikyegh said, “I would reject the appellants argument that Section 32B (1) of the Act violates section 40 of the 1999 Constitution. I conclude that the section is constitutional”.
On the argument of MCSN that the registration of a collecting society is not mandatory but optional, Justice Ikyegh said “Section 32B (5) makes it an offence punishable by fine or imprisonment or both in respect of any person who fails to obtain the approval of the NCC to operate a collecting society, while section 32B (6) thereof makes it an offence punishable by a hefty fine for a corporate body that contravenes section 32 B (4) of the Act dealing with the approval by the NCC for the operation of a collecting society. A provision of a statute such as section 32 B (5) and (6) which makes it an offence with fine or imprisonment or both for the contravention of the requirement for approval by the NCC of the person or body of persons to act as a collecting society under section 32 B (4) thereof bears mandatory or compulsory meaning, not optional or directory meaning suggested by the appellant. By criminalizing the operation of a collecting society without the requisite approval by the NCC, the Legislature has made section 32 B (4) of the Act obligatory, in my modest view. The contention by the appellant that section 32 B (4) of the Act is optional is, with deference, untenable and is hereby rejected”
Contrary to the speculation being spread by MCSN that by the decision, the Court of Appeal has given it a carte blanch right to sue anyone for the infringement of ‘her works’, what the court did was to send back the specific matter (MCSN v. Details) instituted over twenty years ago to the Chief Judge of the Federal High Court for retrial. The position of the court was predicated on the fact that the provisions of the law which requires that MCSN must be an approved collecting society for it to have the locus to sue for copyright infringement was not in existence when the issues in the specific case arose about two decades ago. The provision was enacted in 2004.
There is nothing whatsoever in the judgment which gives the unapproved MCSN the right to operate in Nigeria today as a collecting society, to collect or distribute royalties or to sue anyone for copyright infringement.
Several officers of MCSN continue to face criminal charges in various courts in Nigeria for operating a collecting society without approval as required by law.
