A Tale of Two Conflicting Collective Management Organisations in Nigeria

mcsn-coson-nigeria-music-copyright

The Nigerian film industry (‘Nollywood’) is arguably one of the largest in the world, while the music industry is not far off; both estimated to be worth well over $2bn in annual net revenue.

Last week, this blogger highlighted a story by Punch Magazine from Nigeria on one of Nigeria’s most internationally acclaimed musical duos: “P-Square”. The relevant bit of that article reads:

““P-Square and our companies, Square Records and Northside Entertainment, have not joined any collecting society because we don’t want to give any organisation the power to collect royalties on our behalf without showing a keen interest in solving our greatest problem, which is piracy. It doesn’t make sense.

“I’m not against any collecting society. But come to me as an approved body recognised by the government to fight piracy and I will carry you on my shoulder because I know there will be more money at the end of the day for me. Also, I would know that my future is guaranteed.””

Assuming P-Square opted for collective administration of their rights under copyright, they would be faced with a dilemma over which collecting society to join. This dilemma exists because Nigeria currently has two rival entities, both purporting to represent the musicians of Nigeria, namely: Musical Copyright Society Nigeria (MCSN) and Copyright Society of Nigeria (COSON).

Once upon a time, MCSN was the government-sanctioned collecting society or collective management organisation (CMO) in Nigeria representing authors of musical works. This all changed circa 2009 when COSON was born and got sole approval from the Federal Government to operate as the recognised CMO for both authors of musical works and owners of sound recordings. According to COSON, their existence came about as an effort to “have one formidable national collective management organization to promote and protect the copyright of practitioners in the Nigerian music industry.”
COSON states that it was Nigerian Music Industry Coalition in 2009 that resolved to form COSON. COSON chairman explains this resolve as follows:

“What we have set out to do is to sing with one voice and end the divide and rule game which the powerful users of music have deployed for many years to pauperize musicians and the music industry in our country. Every reasonable person in our industry has long understood that with collective management, together we stand, divided we fall.”

In a 2010 ruling of Nigeria’s Court of Appeal in the case of Musical Copyright Society Nigeria [MCSN] v Compact Disc Technologies & others, it was held that MCSN has no locus standi to institute the action as owner, assignee and exclusive licensee unless it is registered as a collecting society in compliance with the Copyright Act 2004.


MCSN was incorporated and has been operating since July 20, 1984 ( a year after our MCSK’s own birth date). Although MCSN is not licensed to operate as CMO in Nigeria, it remains a formidable “association” given that it is the owner, assignee and exclusive licensee of a vast repertoire of musical works within Nigeria based on an international reciprocal representation agreement with the Performing Rights Society of England [PRS] which grant MCSN exclusive ownership of musical works belonging to over ten million composers and songwriters worldwide, including renowned Nigerian composers, songwriters and authors who have assigned their musical copyrights directly to either PRS or any of the 225 authors’ societies in 118 countries whose repertoires are exclusively controlled in Nigeria by MCSN.

Meanwhile, there is COSON, the government approved CMO that in recent years has been working hard to establish itself as the sole CMO in Nigeria’s music industry. Along with MCSN, COSON is also a member of CISAC.

The government, through the Nigeria Copyright Commission, has actively cracked down on the activities of MCSN, which the former claims are “illegal” as the latter is not registered as a collecting society. Last year, the Federal High Court ruled in MCSN’s favour in the case of the Musical Copyright Society of Nigeria [MCSN] v Nigeria Copyright Commission [NCC] FHC/L/CS/35/08 where it reprimanded the NCC for acting outside the confines of both copyright law and constitutional law.

This month, the Nigerian media reported that MCSN went back to the High Court in Suit No. FHC/L/CS/1163/12, seeking N100 million as damages against the Nigerian Copyright Commission (NCC) and four others resulting from a raid carried out by the latter.

Comment:

Similar to Kenya’s Copyright Act, section 32B(3) of Nigeria’s Copyright Act is clear that: “The Council shall not approve another Society in respect of any class of copyright owners if it adequately protects the interests of that class of copyright owners.” This blogger has argued elsewhere that one society per class of rights is indeed the best way to go. However, the current state of confusion in Nigeria should be a cause for concern here in Kenya since we wish to ensure that our interests are adequately represented in Nigeria and the converse to apply here in Kenya.

Currently, Kenya, through the Music Copyright Society of Kenya (MCSK) has a reciprocal agreement with MCSN signed in 2005. This reciprocal agreement is an exclusive license in respect to public performing rights of the works forming part of the repertoires of the two societies.

Two concerns arise:

1. Seeing as MCSN is no longer recognised under copyright law as a collecting society or CMO for the music industry in Nigeria, does this mean that MCSK’s interests in Nigeria and Nigeria’s interests here in Kenya are unfavourably affected in a manner that interferes with the enjoyment and/or exercise of the patrimonial rights of the holders of the copyrights being administered? In other words, has the current agreement between MCSK and MCSN automatically fallen away due to the factual and legal situation of the latter?

2. Should MCSK consider signing with COSON? If indeed this option is being considered, has COSON given MCSK any indications as to the scope of its repertoire? i.e MCSK already has significant repertoire to give to COSON but the former may need to have some basic assurance that COSON actually hold both performing and mechanical rights assignments for the world from Nigeria authors/composers/publishers of music.

In short, let’s wait and see how these music copyright issues play out. Esteemed readers, the floor is now yours.

Editor’s note: The views, opinions and analyses expressed herein are solely those of the author and are not those of his employers, both past and present.

A Look at Kenya’s Draft Bill on Protection of Traditional Knowledge and Expressions of Folklore

As many may already know, this blogger has been particularly keen on the developments around Traditional Knowledge (TK), Genetic Resources (GRs) and Traditional Cultural Expressions (TCEs) both in Kenya and the region as is evident from his posts on the ‘IPKenya’ blog available here.

This week, this blogger came across the working draft legislation on traditional knowledge (TK) in Kenya. A copy of this draft is available here. With this background in mind, this blogpost will identify some of the key issues for Kenyan policymakers with the help of certain key texts namely, the ARIPO Swakopmund Protocol, Kenya’s National Policy on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions, and a proposed TK Bill drafted for South Africa by Prof. Owen Dean, Chair of Intellectual Property at Stellenbosch University.

The starting point for legislative protection of TK, TCEs and GRs in Kenya is the Constitution of Kenya 2010. The relevant provision reads as follows:

Article 11 – Culture

11.(3) Parliament shall enact legislation to—
(a) ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and
(b) recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.

Below are some of the key highlights of the proposed draft law dubbed: “Protection of Traditional Knowledge and Expressions of Folklore Bill”.

The Draft Bill makes two broad distinctions: TK and Expressions of folklore (EF). Although the draft offers two alternative definitions for both TK and EF, the first of each of the definitions seems most suitable:

“traditional knowledge” shall refer to any knowledge originating from a local or traditional community that is the result of intellectual activity and insight in a traditional context, including know-how, skills, innovations, practices and learning, where the knowledge is embodied in the traditional lifestyle of a community, or contained in the codified knowledge systems passed on from one generation to another. The term shall not be limited to a specific technical field, and may include agricultural, environmental or medical knowledge, and knowledge associated with genetic resources.

“expressions of folklore” are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:
i. verbal expressions, such as but not limited to stories, epics, legends, poetry, riddles and
other narratives; words, signs, names, and symbols;
ii. musical expressions, such as but not limited to songs and instrumental music;
iii. expressions by movement, such as but not limited to dances, plays, rituals and other performances; whether or not reduced to a material form;
iv. tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms;

Conditions for protection:
The Draft Bill states that the protection of TK and TCEs shall not be subject to any formality.
However, it could be argued that a basic condition for protection of TK should be that the TK must be reduced to a material form by or on behalf of the originating traditional community.

Traditional cultural rights in TK and Expressions of Folklore:
The scope of these rights are defined as follows:

(i) manufacturing, importing, exporting, offering for sale, selling or using beyond the traditional context the product;
(ii) being in possession of the product for the purposes of offering it for sale, selling it or using it beyond the traditional context
(iii) making use of the process beyond the traditional context, where the traditional knowledge is a process

In addition to all other rights, remedies and action available to them, the draft Bill also provides that owners shall have the right to institute legal proceedings against any person who carries out any of the acts mentioned above without the owner’s permission.
Finally in relation to the traditional cultural rights conferred, the draft Bill makes it clear that these rights do not affect, any rights that may subsist under any law relating to copyright, trademarks, patents, designs or other intellectual property.

Independently of the traditional cultural rights, the draft bill also proposes that the traditional owners of traditional knowledge or expressions of folklore should be the holders of the moral rights in the traditional knowledge or expressions of folklore. This sui generis moral rights provision is modeled on the copyright system as it provides for right of integrity, right of paternity in addition to the right not to have ownership of traditional knowledge or expressions of folklore falsely attributed to them.

Limitations to traditional cultural rights in TK and EF:
With respect to TK, the draft Bill provides for a system of compulsory licensing “where protected TK is not being sufficiently exploited by the rights holder, or where the holder of rights in traditional knowledge refuses to grant licences subject to reasonable commercial terms and conditions, on the recommendation of the national competent authority”

With respect to EF, the draft Bill creates a list of exceptions and limitations to protection of EF whereby protection must NOT:-

a) restrict or hinder the normal use, development, exchange, dissemination and transmission of expressions of folklore within the traditional or customary context by members of the community concerned, as determined by customary laws and practice.
b) extend beyond uses of expressions of folklore taking place outside their traditional or customary context

Fair and equitable benefit-sharing:
It is proposed in the draft Bill that the protection extended to traditional knowledge holders includes the fair and equitable sharing of benefits arising from the commercial or industrial use of their knowledge, to be determined by mutual agreement between the parties. In the absence of such mutual agreement, the national competent authority is mandated to mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits. In this regard, it is submitted that such a provision would also augur well in the new devolved system of government
since county governments would be in a position to benefit from exploitation of TK, GR and TCE.
On the regional front, with the emergence of the EAC, the issue of access and benefit sharing in cases where the resources are spread out in different countries within the EAC may now be easily addressed.

Prior informed consent:
The draft Bill sets out a procedure for obtaining the prior and informed consent of the traditional owners to use their traditional knowledge or expressions of folklore for a non-customary user (whether or not of a commercial nature).
The procedure states that prospective users may apply to the national competent authority to obtain the prior and informed consent and this application is publicly advertised.

National Competent Authority:

The Draft Bill proposes the designation or establishment of a national competent authority which shall implement the provisions of the Bill to be known as the National Traditional Knowledge Authority. Their functions including the following:

-To keep a register of all licences and assignments granted under this section.

– To mediate between the concerned parties with a view to arriving at an agreement on the fair and equitable sharing of benefits.

– To recommend on the granting of a compulsory license in respect to protected traditional knowledge in order to fulfill national needs.

– To create a notification system for certain categories of EF for which protection is sought

– To administer and enforce protection of traditional knowledge, which includes awareness-raising, education, guidance, monitoring, registration, dispute resolution, enforcement and other activities related to the protection of traditional knowledge. In addition the Authority is entrusted, in particular, with the task of advising and assisting holders of protected traditional knowledge in defending their rights and instituting civil and criminal proceedings, where appropriate and when requested by them.

Concluding Comments:

As Kenya moves towards a legislation with sui generis for TK, GRs and TCEs, the short-term measure would be use the existing IP regimes. In the case of contemporary creation and innovation based on TK and TCEs, the copyright and patent laws in Kenya may provide some protection. The copyright system could also assist since it makes provisions for protection of unpublished works of unknown authors. In addition, this system would also cater for related rights protection of recordings of cultural expressions and for “performers of expressions of folklore”. Finally, databases and compilations of TK and TCEs can also be protected under copyright law.

In the same vein, the trademark system in Kenya could also offer some protection for TK. In particular, collective trademarks can be used to protect TK products (eg., foods, agricultural products, crafts). Common law actions and remedies relating to passing off and unfair competition may also be relied upon. Lastly, the law on trade secrets could also provide some protection for confidential information for secret TK and TCEs.