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Musical Copyright Society Nigeria Ltd./Gte v. Nigerian Copyright Commission

Federal High Court

Judgement delivered on Friday, April 3, 2009
Citation: 52 NIPJD [FHC. 2009] 478/2008
Suit No. FHC/L/CS/478/2008      Jurisdiction: Nigeria

Judgement delivered by Honourable Justice I.M Sani

Sections 17 and 39 of the Copyright Act 2004 — The court considered: whether sections 17 and 39 of the Copyright Act are unconstitutional; whether the Applicant — Musical Copyright Society Nigeria Ltd./Gte, requires a license from the Respondent — Nigerian Copyright Commission, in order to carry on the business in the exploitation of rights validly and legitimately required from the Applicant; whether section 17 and section 39 of the Copyright Act 2004 are contrary to the provisions of Articles 10, and 14 of the African Charter on  Human and People’s Right Ratification and Enforcement Act Cap A9 Laws of  the Federation 2004, made enforceable by section 12(1) of the 1999 Constitution of the Federal Republic of Nigeria 1999.

I. FACTS

The Applicant sought the following relief:

  1. “A declaration that section 17 and section 39 of the Copyright Act 2004 are unconstitutional in so far as they circumscribe the Applicant’s Fundamental  Right as guaranteed under section 40 and section 44 of the 1999  Constitution.
  2.  A Declaration that the Applicant has a right as owner, assignee and exclusive licensee of various authors and entities to exploit and enjoy her properties in the works and that these rights ought not to be abrogated, disturbed, or  frustrated except by just laws which offer just compensation and are in accord  with section 44 of the constitution of the Federal Republic of Nigeria.
  3. A declaration that section 17 and section 39 (formerly section 15A and  section 32B) of the copyright Act 2004 are unconstitutional null and void in so far as they seek to abrogate rights of property that have been accrued before  the promulgation of the said sections of the Copyright Act.
  4. A Declaration that the Applicant does not require a license from the Respondent in order to carry on their business in the exploitation of rights  validly and legitimately required by the Applicant.
  5. A declaration that section 17 and section 39 of the Copyright Act 2004 are contrary to the provisions of Articles 10, and 14 of the African Charter on  Human and People’s Right Ratification and Enforcement Act Cap A9 Laws of  the Federation 2004 made enforceable by section 12(1) of the 1999 Constitution of the Federal Republic of Nigeria 1999.
  6. And for any further or other orders as the Honorable Court may deem fit to make in the circumstances”

Learned counsel for the Applicant referred to the reciprocal agreements with international bodies, legal text on copyright, judicial decisions, and public notices issued by the Respondent not to deal with the applicant because the applicant is not licensed by the Respondent. The counsel for the Applicant also referenced was Section 44 of the Constitution which makes  provision for the prohibition of compulsory acquisition of property and Article  14 of the African Charter, which guarantees the right to property. The learned counsel for the Applicant therefore contended that by virtue of the rights acquired through the reciprocal agreements ever since 1984, a subsequent enactment or  legislation could not abrogate rights that had been acquired prior to the enactment except by express and unequivocal provisions. He referred the court to the Court of Appeal Decision No. CA/L/498/97 Musical Copyright Society vs. Adoekun Records and ors. and Section 52(3) of the Nigerian Copyright Act, Schedule 5 2004 (the transitional and saving provisions in the  fifth schedule) and further contended that by the combined effect of the  decision and enactment, the Copyright Act cannot affect the right the Applicant had acquired. The learned counsel for the Applicant therefore argued that the acts of the Respondent were impeding the enjoyment of the Applicant’s right to property  and urged the court to hold sections 17 and 39 of the Copyright Act unconstitutional.

The learned counsel for the Respondent was of the opinion that all the five prayers by the Applicant were anchored on one major issue i.e. that section 17 and 39 of the Nigerian Copyright Act violated Applicant’s fundamental rights as guaranteed by the Nigerian Constitution. Learned counsel contended as to whether Respondent could challenge the provisions of the Act under a fundamental rights application noting that by virtue of Order 2(1) of the Fundamental Right (Enforcement Procedure), the operative word is “infringement”, which has to be a physical act. He further contended that sections 17 and 39 did not restrict the right of Copyright owners to associate or assemble but gave the Respondent power to approve collecting societies and makes it an offence to operate without approval. He referred the court to section 45 which provides for restriction on and derogation from fundamental  human rights as well as the case of Medical and Health Workers Union of Nig. v. Honorable Minister of Labour and Productivity where it was held that  sections 3 and 5 of the Trade Union Act which provides the conditions to be met by an Applicant before it can be registered as a trade union, are not  inconsistent with the provisions of the 1999 constitution.

On the issue of the right to property guaranteed under section 44, learned  counsel for the Respondent noted that the section dealt with compulsory acquisition whereas sections 17 and 39 had nothing to do with compulsory  acquisitions as they relate to applicant’s property. The sections rather  describe the activities of a collecting society and provide the conditions to be  fulfilled by an organisation desirous of carrying out the said activities of a  collecting society. Learned counsel for the Respondent therefore argued that considering the evidence tendered and applicant’s affidavit, it was without doubt that the applicant was a collecting society and therefore required the Respondent’s  approval.

On the prayer that section 17 and section 39 of the Copyright Act 2004 were contrary to the provisions of Articles 10 and 14 of the African Charter on Human and People’s Right, the learned counsel to the Respondent noted that  the Constitution was the ground-norm and as such the Articles from the African Charter on Human and People’s rights could not grant rights beyond  what the constitution had provided. He therefore urged the court to hold that  sections 17 and 39 did not violate articles 10 & 14 of the African Charter.  Counsel drew the attention of the court to section 38 of the Nigerian Copyright Act, which gives the Respondent powers to enforce the copyright Act and that  such powers were not limited to works acquired before or after the laws were passed. He noted that section 39 of the Nigerian Copyright Act regulates the business of collecting societies and not the rights that may have passed subsequent or prior to the commencement of the law. He therefore submitted that anyone desirous of carrying out the functions of a collecting society requires a license in accordance with section 39 of the Nigerian Copyright Act,  which section could not be said to have retrospective effect.

II. JUDGEMENT

The court held that the fundamental questions were whether the provisions of sections 17 and 39 of the Nigerian Copyright Act circumscribed the Applicant’s fundamental rights as guaranteed under sections 40 and 44 of the Nigerian Constitution and “does the requirement to obtain a licence from the Respondent to operate amounts to compulsory acquisition of property or right?”

The judge noted that the requirement by the law for a party to fulfill certain conditions before he becomes entitled to the exercise of his rights could not be tantamount to compulsory acquisition of that right or property. He therefore held that the mere fact that the Applicant was required to obtain a licence before it could carry on business was not the same as compulsory acquisition of Applicant’s rights and thus no right of the Applicant had been breached under section 44 of the 1999 constitution. The action therefore failed and was accordingly dismissed.

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