By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Introduction

The utilization and management of copyrighted works through the agency of collecting societies provides a convenient arrangement that facilitates the use of these works by potential users, upon the payment of adequate compensation to the rights of owners on terms mutually agreed upon. Copyright is simply a right in intellectual property vested in the owner of a work to recreate such work.[1] It is the exclusive right of the owner of the copyright to control the exploitation of his work and to grant authorization to others in this regard subject to certain limitations and exceptions.[2]

Collecting societies in Nigeria play a crucial role in the administration of copyright by acting as intermediaries between right holders (creators) and users of copyrighted works.[3] Infringement on copyright works has been on the increase in Nigeria, particularly literary, musical and artistic works such as books, music, film piracy etc.[4] As such, the need arises to have a well-structured management in place to manage and administer copyright works on behalf of owners. The establishment of collecting societies, referred to in the Act as Collective Management Organizations (CMO) cannot be overemphasized as they represent copyright owners in the collection and sharing of royalties, negotiation and granting of licenses, monitoring of users and taking steps to enforce rights where necessary.[5]

This work aims to aid readers to understand how collecting societies facilitate the management, licensing and distribution of royalties for copyrighted works.

Meaning of Collecting Societies

Collecting societies are organizations established to protect intellectual property rights and collect royalties and similar considerations for the use of intellectual property in various jurisdictions worldwide.[6] These societies are primarily private, non-profit membership organizations that manage copyrights.[7]

An Overview of Collecting Societies in Nigeria

In Nigeria, several collecting societies are duly licensed by the Nigerian Copyright Commission to operate and collect royalties on behalf of their members. These include the Performing and Mechanical Rights Society (PMRS), the Reprographic Rights Organization of Nigeria (REPRONIG), the Audio-Visual Rights Society (AVRS), and the Musical Copyright Society of Nigeria (MCSN).[8]

The formation of collecting societies is stipulated under the Copyright Act 2022 and the body responsible for the approval of operation of collecting societies in Nigeria is the Nigerian Copyright Commission. The Act provides thus:

“A Collective Management Organization… formed by rights owners may apply to the Commission for approval to operate in respect of any one or more categories of works”[9]

Thus, a CMO is a body formed by rights owners to manage their intellectual property rights collectively and where such body is formed, it is expected to apply to the Nigerian Copyright Commission for approval to operate in respect of specific categories of work. Where no such approval is gotten from the Commission, it goes to the issue of locus standi as seen in MCSN v Compact Disc Technology Limited & Ors.[10] For the purpose of showing how important the aforesaid approval is, the Act further provides thus:

“A person or group of persons, however described, shall not perform the duties of a CMO without the approval of the Commission as required under the Act;[11]

Any person who contravenes the provisions of subsection (4), commits an offence and is liable on conviction in the case of (a) an individual, to a fine of at least N1,000,000 or imprisonment for a term of at least five years or both; and (b) a body corporate, to a fine of at least N5,000,000.[12]”

Furthermore, the Act provides that notwithstanding the provisions of the Act or any other law, no action for infringement of copyright or any right under the Act shall be commenced or maintained by any person or organization who

engages in the business of negotiating and granting licence;
collects and distributes royalties in respect of copyright works; and
represents more than 50 owners of copyright in any category of works protected under the Act, unless it is approved under section 88 of the Act to operate as a collective management organization or issued with a certificate of exemption by the Commission.[13]

It has been earlier noted that the CMOs have the power to license rights in copyright works to users. The revenues generated from these licenses are, in turn, distributed to the members of the CMOs, who are the copyright owners.[14] The copyright proprietors typically assign or license their rights in the works to the CMOs, which will administer such rights on their behalf, by granting licences to users.[15]

The Role and Importance of Collective Management Organizations (CMOs) in Copyright Protection

Collective Management of Copyright and its related rights is a system wherein right owners authorize collective management organizations (CMOs) to monitor the use of their works, negotiate with prospective users, and grant licenses for appropriate remuneration based on a tariff system and under suitable conditions.[16] Given the vast number of copyright owners and users, it is impracticable to expect every user to individually track down each copyright owner to obtain the requisite authorization.

To address this challenge, CMOs exist to negotiate on behalf of copyright owners and grant licences to users as well as to collect payments from such users and distribute royalties at an agreed rate to copyright owners.[17] The rationale for this is to enable copyright owners to concentrate on creativity whilst leaving the management of their rights to those who are best suited for doing so, while also giving an assurance that reward for creativity will accrue to the right owners through payment of royalties as and when due.[18]

The role of collecting societies in this context includes:

Overseeing the use of the work of copyright owners: Collecting societies play a crucial role in overseeing the use of works of copyright owners. They manage the rights of creators and owners of copyright, ensuring that their works are used legally and that they receive fair compensation for their use.

Arranging usage terms with prospective licensees: This role is essential in ensuring that copyright owners receive fair compensation for the use of their works. Collecting societies negotiate with licensees, allowing them to legally use copyrighted works.
Granting of licences based on pre-arranged fees, collecting of such fees and apportioning the fees among the owners of such rights.[19]
Enforcement of copyright: the convenience which collecting societies offer to both the owner and user of copyright cannot be matched by any other means and in their absence, in a totally free market, individual users and copyright owners would be at a serious disadvantage in enforcing contractual arrangements for the exploitation of rights.[20] Collecting societies monitor and detect unauthorized uses of copyrighted works, and take appropriate action to prevent or stop such uses. Thus, they take legal action against infringers.
Collection and distribution of royalties: Collecting societies collect and distribute royalties to copyright owners. For example, a collecting society for musical works can manage and enforce copyrights over musical works by selling exclusive and non-exclusive rights to use such works. Afterwards, they gather the royalties and allocate them to the rightful parties entitled to receive royalty for a musical work or sound recording [21]

Advocacy and Education: Collecting societies raise awareness of the importance of copyright. Through various initiatives, they educate users, copyright owners and the general public on the value of intellectual property and the need to obtain proper licences for use. Thus, they advocate the need to respect the rights of copyright owners.[22]
Conclusion

The importance of the roles played by collecting societies cannot be overemphasized. Collecting societies act as intermediaries between copyright owners and users of copyright works. They perform the role of granting licences to copyright users, collecting royalties and distributing of same to copyright owners. Their existence creates a convenient environment for owners of copyright to focus on the production of their works while leaving the management of their works to collecting societies to manage and administer their rights on their behalf.

Snippet

Collecting societies in Nigeria play a crucial role in the administration of copyright by acting as intermediaries between right holders (creators) and users of copyrighted works. Infringement on copyright works has been on the increase in Nigeria, particularly literary, musical and artistic works such as books, music, film piracy etc.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Intellectual Property Law and Practice, and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at [email protected]

CONTRIBUTOR: Victor Obong Atang

Victor is the Team Member of the Dispute Resolution Department at OMAPLEX Law Firm. He also holds commendable legal expertise in Intellectual Property Law and Practice.

He can be reached at [email protected]

[1] Rotimi, OO, ‘Operation and Regulation of Copyright Collective Administration in Nigeria: Important Lesson for Africa’, accessed 17th May, 2022.

[2] Ibid

[3] Nwogu, MIO, ‘Collecting Society in the Administration of Copyright Law in Nigeria: An Appraisal’, (2023) 2(2), European Journal of Law and Political Science, 36-40, accessed 17th May, 2024.

[4] Ibid

[5] Section 88(7), Copyright Act 2022.

[6] Nwogu, MIO (n2).

[7] Ibid.

[8] Udeoji, NN, ‘Collecting Societies in Musical Works of Copyright: An Analysis’, accessed 17th May, 2024.

[9] Section 88(1), Copyright Act 2022.

[10] SC.425/2010.

[11] Section 88(4), ibid.

[12] Section 88(5), ibid.

[13] Section 39, ibid.

[14] Udeoji, NN, (n6).

[15] Ibid.

[16] Ewelukwa, AU, ‘Effectiveness of Collective Management Organization in the Copyright Sector of Nigeria’, accessed 18th May, 2024.

[17] Ibid.

[18] Rotimi, OO, ‘Operation and Regulation of Copyright Collective Administration in Nigeria: Important Lessons for Africa’,< https://pure.qub.ac.uk/files/198725789/Operational.pdf> accessed 18th May, 2024.

[19] Babafemi, FO, Intellectual Property Law and Practice, Ibadan, (1st edn, Justian Books Ltd 2007)

[20] Udeoji, NN, ‘Collecting Societies in Music Works of Copyright: An Analysis’, International Journal of Comparative Law and Legal Philosophy (2022)4(1), accessed 18th May, 2024.

[21] Rosewood Legal, ‘Music Licensing and Royalty Collection in Nigeria’, accessed 18th May, 2024.
[22] Ibid