Musical Copyright Society Nigeria & Ors. v. Nigerian Copyright Commission & Ors.
Federal High Court
The Plaintiffs/Applicants brought an action seeking a declaration that “the continued threats of detention, harassment and intimidation by the respondents is unlawful, unwarranted and in breach of their fundamental rights”. The Plaintiffs asserted that in May 1999, the 1st Respondent — Nigerian Copyright Commission, and its agents without a search warrant invaded the offices of the Plaintiffs/Applicants seizing several files, documents and working instruments of the 1st Plaintiff/Applicant and took away an officer of the 1st Plaintiff/Applicant without an arrest warrant.
The Plaintiffs/Applicants also asserted that in May 2007, the 1st Respondent issued a public statement aimed at further attacking and infringing the fundamental rights of the 1st Plaintiffs/Applicants to freedom to own property and to engage in lawful economic activities calling on the public not to deal with or engage in business with the 1st Plaintiffs/Applicants.
Again, on December 14, 2007, about 20 fully armed mobile policemen stormed the business premises of the Plaintiffs/Applicants without a search warrant. Two officials of 1st Respondent were detained at the office of the 1st Respondent without an arrest warrant or order of court with “little or no ventilation and with no lighting or power supply”.
In response, the 1st Respondent referred to Paragraph 10 of its Counter Affidavit averring on its powers to enforce the Copyright Act inclusive of powers to enter into any premises without warrant, inspect and seize any document or contrivance relating to piracy, arrest and prosecute any suspect and generally exercise all powers, rights and privileges of a Police Officer in the investigation and prosecution of copyright crime. The 1st Respondent further noted that the International Federation of Phonographic Industries (IFPI) wrote a petition to the 1st Respondent complaining that the 1st Plaintiff/Applicant is illegally infringing on the right of its members by authorising the reproduction of musical and film works of its members without permission. The 1st Respondent also stated that upon investigation by it, it was discovered that the 1st Plaintiff/Applicant had indeed authorised the reproduction of several foreign musical and film works.
After considering the submissions of both parties, the Judge was of the opinion that the several arrests and seizures made by the Commission on 1st Plaintiff/Applicant and its premises could not reasonably be considered as actions done to detect and prevent crime. He noted that the rights in respect of the complaint lodged by IFPI had not been adjudicated upon and that the works over which the claims were based were not detailed.
The Learned Judge therefore held that “the arrest and seizures were arbitrary and heavy landed; the actions were those of an agency determined to bring to heal an offensive, rather than an offending body corporate and its executive officers. The 1st Respondent has failed to acknowledge, appreciate or welcome the notion and the reality that owners and assignees of copyright can enforce property rights without necessarily being registered as collecting societies by the Copyright Commission. Registration as a collecting society is not a prerequisite for the enjoyment and exercise of the rights of an owner or exclusive licensee of Copyright.
II. COURT ORDER
In the Federal High Court, Holden at Lagos, Nigeria on Monday, July 25, 2011. Before Justice Charles Efanga Archibong, Judge, Suit No. FHC/L/CS/35/2008
1. Musical Copyright Society Of Nigeria Limited
2. Mr. Mayo Ayilaran
3. Mr. Orits Williki
4. Mr. Louis Bassey Udoh
5. Mr. Halim Mohammed — Plaintiff/Applicants
1. Nigeria Copyright Commission
2. Director General, Nigeria Copyright Commission
3. Mr. Amodu Augustine Alewu (Asst. Dir. Nigeria Copyright Commission)
4. Mr. Henry Njoku
5. Inspector General of Police— Respondents
In paragraph 10 of the Affidavit it is averred:
The 1st Respondent has the power to enforce the Copyright Act power to include to enter into a premises without warrant, inspect and seize any document or contrivance relating to piracy arrest and prosecute any suspect and generally exercise all powers, rights and privileges of a Police Officer in the investigation and prosecution of copyright crime.
And what crime was the 1st Respondent admittedly investigating, arresting, interdicting and prosecuting the respondents for?
We see Paragraph 22 of the Counter Affidavit:
22. The International Federation of Phonographic Industries (IFPI) wrote a petition to the 1st Respondent complaining that the 1st Applicant “is illegally infringing on the right of its members by authorising the reproduction of musical and film works of its members without permission. A copy of the petition is herewith attached and marked Exhibit D.”
Paragraph 25 of the Counter Affidavit.
That in the course of carrying out preliminary investigations ,it was discovered that the 1st Applicant indeed authorised the reproduction of several foreign musical and film works. Almost of the works they authorised its reproduction were indeed pirated works.
That the 1st respondent the suit its teams of operatives to arrest officials of the 1st Applicant and search for more evidence of the offence complained of.
It is clear that intervention of the 1st Respondent set the scene for the various alleged infringement of the rights of the applicants.
To start with, infringements of copyright are actionable at the suit of the owner/assignee or an exclusive licensee of the copyright as the case may be. See section 16 of the Copyright Act.
There is no doubt, however, that there can be criminal liability for the same activity i.e. acts of infringement.
However, where the Copyright Commission Act as a law enforcement agency is investigating and prosecuting crime, the provisions of the Criminal Procedure Act apply.
In the happenings detailed in this suit, the 1st Respondents deposes that it acted at the instance of a complainant who declined to pursue civil remedies for whatever reason. The 1st Respondent effected and made arrest and seizures without the benefit of an arrest warrant.
Paragraph 10 of the Counter Affidavit avers:
That the 1st Respondent (also) has the powers to enforce Copyright Act, which power includes to enter into any premises without, inspect and seize any document or contrivance relating to piracy, arrest and prosecute any suspect and generally exercise all power right and privileges of a Police Officer in the investigation of copyright crime.
The phrase “the right and privileges of a Police Officer” is a peculiar one. Not all acts of infringement amount to piracy. And charging unwarranted into premises on the Complaint of a supposed owner of licensee of a Copyright is illegal and unconstitutional. No policeman has such “right or privileges.”
The Commission could no, in proceeding to make the several arrest and segments they made in relation to the applicants and their premises, be reasonable be said to be trying to detect and prevent crime. It is a respondent to complaint of infringement by a party whose rights with regard to be supposedly infringed worked have not been adjudicated upon; the particulars of the complaints are undisclosed; the works over which they claimed right are not detailed.
The Commission is not the Federal High Court.
The arrest and seizures were arbitrary and heavy landed; the actions were those of an agency determined to bring to heal an offensive, rather than an offending body corporate and its executive officers.
The 1st Respondent has failed to acknowledge, appreciate or welcome the notion and the reality that owners and assignee of copyright can enforce property rights without necessarily being registered as collecting societies by the Copyright Commission.
Registration as a collecting society is not a prerequisite for the enjoyment and exercise of the rights of an owner or exclusive licensee of Copyright.
That, in essence of the meaning of dicta, in the unreported Appeal No. CA/L/498/97 Musical Copyright Society vs. Adoekun Records and ors. Per Sulaiman Galadima JCA as he then was.
The specific question addressed in that appeal: Must the Copyright owner be a collecting Society?
“Collecting Society not the same as owner, assignee or exclusive licensee of copyright”
“The provisions of Section 15 of the Act shows clearly that it confers rights on owners, assignee, and exclusive licensees of copyright works be they literary musical or artistic.”
“I cannot find any part of Section 15 of the whole Act where it is stated that the rights are exclusive preserve of collecting society.”
“To read the expression ‘Collecting Society’ into Section 15 of the Act is to violate the principle of Golden or literal rule in the interpretation of a statute that construction of straight and unambiguous words must be based on the ordinary plain and direct meaning of the word.”
See. African Newspaper (Nigeria) Limited vs. FRN (1985) 2 NWRL (part 6) 137
“Section 44 of the 1999 Constitution guarantees protections of the appellants property except in justifiable circumstances, precluded from “infractions.”
Nothing in the Copyright Act denies the owner, the assignee or the exclusive licensee of a Copyright the right to collect royalties for performances of their works, or to appoint agents to claim and enforce directly tier rights under Section 6 of the Copyright Act and I so hold.
The offence of purporting to perform the duties of a society without the approval of the Copyright Commission created by section 39 of the Copyright Act, cannot and does not relate to the activities of owners, assignees and exclusive licenses of copyright, and I so hold any provision of any statute that in any way seeks to curb the enjoyment of property rights, subjugate or detract from same without any discernible purpose other than the registration and monitoring of same is unconstitutional and I so hold.
Whatever else it seeks to do, the provision of Section 39 of the Copyright Act do not seek to hinder, encumber or restrict the private enforcement of property rights by the owners, assignees or exclusive licensees of copyright, nor does it intend to criminalise such private enforcement.
And to the extent Act suggest such criminalisation it is unconstitutional, null and void.
The Copyright Commission was established to reinforce the rights of copyright owners, assignees and licensees; not to be an institutional hurdle with the arbitrary power to restrict the private enjoyment and enforcement of such rights.
Copyright owners do not exist at the pleasure of the Copyright Commission; or merely to validate its establishment. And most definitely the Copyright Commission was not established to undermine, denigrate or exact obeisance from copyright owners.
I find that to be the tone and purpose of the 1st respondent’s many interventions in the affairs of the applicants detailed herein.
It is for the Copyright Commission to justify the denial of an owner, assignee of exclusive licensee of its approval as a collecting society in the light of the Constitutional prerogatives attached to the enjoyment of property rights. It is not for the Copyright Commission to hound persons, corporate or otherwise, that are legitimately, and constitutionally protecting their proprietary interest.
The Copyright Commission and its principle officer should not be in the business of subverting the property rights of copyright owners. I am persuaded that they have been doing exactly that in their dealings with the applicants herein.
I grant the applicants the declaration Sought, the Order Sought, the compensation sought and the further compensation sought for the 2nd and 5th applicant. That is to say I grant the applicants prayers 1,2,3 and 5 listed on the motion paper of January 29, 2008.
That is the Ruling of this Court.
In delivering this judgment, the learned justice, Charles Efanga Archibong did not rely on the Court of Appeal’s decision in Compact Disc Technologies Ltd. v. Musical Copyright Society of Nigeria (Suit No. CA/IL/787/2008). The court relied on the case of Musical Copyright Society vs. Adoekun Records and ors No. CA/L/498/97., which was based on the Nigerian Copyright Act 1988.