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Court of Appeal Validates Musical Copyright Society of Nigeria’s Right to Sue for Copyright Infringe

The Nigeria Court of Appeal has recently granted the Musical Copyright Society of Nigeria (MCSN) the right to administer, protect or sue for copyright infringement despite it not being a collecting society approved by the Nigerian Copyright Commission (NCC).

The Musical Copyright Society Nigeria (MCSN) according to its Facebook page (its official website being currently “under construction”), is an incorporated collective association of authors, composers, arrangers and publishers of music, whose constitution on plain reading of the description, is similar to that of a collecting society.

A collecting society in Nigeria is defined by Section 32 B (8) of the Copyright (Amendment) Act 1992 (the Act) as an association of copyright owners which has the principal objective of granting licence, collecting and distribution of royalties in respect of copyright works.

The Act mandates any organisation intending to do the work of a collecting society, to apply to the Nigerian Copyright Commission (NCC) for approval to operate as a collecting society. The Act also sets out the offence and penalties for persons operating as a collecting society without the approval of the NCC.

Based on the above, when MCSN brought an infringement action at the Federal High Court against Details Nigeria Limited for the broadcast of the works in MCSN repertoire, Details Nigeria Limited challenged the standing of MSCN to bring the suit. Details Nigeria alleged that MCSN’s had no capacity to bring the action against them on the basis that MCSN was illegally acting as a collecting society having not obtained approval from NCC and as such, would not have the right to bring infringement action against it. The Federal High Court, ruling in favour of Details Nigeria Limited held that MCSN does not have the right to bring such action.

Not satisfied with the ruling, MCSN appealed the decision of the High Court. In bringing the matter to the Court of appeal,MCSN stated that it instituted the action against Details Nigeria Limited, not as a collecting society but as an owner, assignee or exclusive licensee and therefore was entitled to sue for the infringement of its works. Moreover, as copyright owner it does not require approval from the Nigerian Copyright Commission (NCC) to sue for infringement against Details Nigeria Limited or any other person(s) using its works without authorization.

On the above stated issues, the Court of Appeal stated that in terms of Sections 32 B (4)(5)(6) of the Act, it is mandatory and not optional for collecting societies to obtain approval from the Nigerian Copyright Commission (NCC), before they obtain legal capacity to sue over alleged infringements. However, the court in ruling in favour of MCSN upheld the position that MCSN brought the action as an owner, assignee or an exclusive licensee of a copyright work and not as a collecting society, and as such does not require approval or registration by NCC before it would have the legal capacity to sue. The court’s reasoning is in line with Section 15 of Act which states that an owner, assignee or an exclusive licensee can sue for copyright infringements.

The Appelent Court in overturning the decision of the High Court ruled that MCSN has the legal capacity to sue for copyright infringement against Details Nigeria Limited.

For more information, please contact Chidimma Igilige

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