Copyright Collective Management Organizations in Nigeria: The Locus Standi Conundrum Resolved?

(2019) Journal of Intellectual Property Law and Practice 127-135

14 Pages Posted: 16 Jan 2019

Date Written: August 10, 2018

Abstract

The article is a follow up on, and a review of, an earlier article entitled: copyright collective management organizations (CMOs) in Nigeria: resolving the locus standi conundrum (Journal of Intellectual Property Law & Practice, Volume 10, Issue 7, 1 July 2015, pp518–525). The article examined the state of the law after publication of the 2015 article. In this regard, it examined recent cases from the Federal High Court, the Court of Appeal and the Supreme Court. These cases determined the effect of sections 16, 17 and 39 of the Copyright Amendment Act, Cap C28, Laws of the federation of Nigeria, 2004 on the locus standi of CMOs in Nigeria. The article seeks to answer the questions: has the Supreme Court’s recent decision fully resolved the CMOs’ locus standi question in Nigeria? Can section 17 be interpreted as an absolute bar against unapproved CMOs’ right of action in copyright infringement suits? Among others, the paper argued that the main determinant of a CMO’s locus standi to initiate a copyright infringement in Nigeria suit depends largely on the court’s finding about the capacity and standing in which the CMO constituted and instituted the suit and this again will depend on the stage at which the locus standi issue was determined by the court. If the locus standi issue arose and was considered at a pre-trial stage (as occurred in most of the cases considered), the finding on locus standi must be based on the averments in the statements of claim and nothing more. However, if the locus standi issue was raised and considered as part of substantive trial or on appeal, then the finding on locus standi can be based on the statement of claim and attached documentary evidence. Whatever the case, if the court found that a CMO initiated the suit as owner, assignee and exclusive licensee, and not as a CMO per se, it would uphold the CMO’s locus standi under s16 of the Copyright Act whether or not the CMO has been approved under s39 of the Copyright Act. Contrariwise, if the court found that the CMO initiated the suit simply as a CMO, it would decline jurisdiction if the CMO has not been approved under s39 as the CMO would not have the requisite locus standi under s17 of the Copyright Act. The paper further argued that the general function of CMOs in Nigeria, and elsewhere, is not limited to enforcement of copyright in court. Indeed, the main function of CMOs include negotiation of royalties and issuance of copyright licenses to users of copyright works on behalf of copyright owners; and collection of royalties from users and distribution of same to copyright owners. CMOs are only prevented from operating as such without the NCC’s approval under s39(4), (5), and (6), which makes operation without such approval criminal. In effect, assuming s39(4), (5), and (6) was non-existent, unapproved CMOs may continue to operate to the extent that they can perform other functions without initiating law suits to enforce a right under the Copyright Act. Even so, s17 is not an absolute barricade against the enforcement of copyright by CMOs. Based on the cases examined in the paper, the effect of s17 would depend on the finding of the court on the locus standi question and this depends on the stage of the proceedings the question was raised and considered. Finally, it is contended that much depends on the ingenuity of the CMOs’ counsel during the preparation of the originating processes and statement of claim especially if the locus standi issue was raised and considered at the preliminary stage of proceedings in a suit. If the counsel describes the CMO as a CMO per se in the statement of claim, the CMO will be caught by s17 of the Copyright Act and the suit will fail for lack of locus standi. On the other hand, if the counsel describes the CMO as owner, assignee and exclusive licensee, then the CMO will be accommodated under s16 of the Copyright Act. As such, the CMO will be conferred with locus standi to commence the suit. However, such ingenuity may come to naught if the locus standi question was raised and considered during the trail of the substantive matter or on appeal. This is so because at this stage, the court will be at liberty to look beyond the statement of claim to the entire evidence to resolve the locus standi question. In such circumstance, it is doubtful whether an unapproved CMO would be able to hide in the cloak of owner, assignee and exclusive licensee under s16.

Keywords: Copyright, CMOs, Locus Standi, right to sue, Nigeria

Suggested Citation

Oriakhogba, Desmond, Copyright Collective Management Organizations in Nigeria: The Locus Standi Conundrum Resolved? (August 10, 2018). (2019) Journal of Intellectual Property Law and Practice 127-135, Available at SSRN: https://ssrn.com/abstract=3260592

Desmond Oriakhogba (Contact Author)

University of the Western Cape ( email )

Bellville
Cape Town, Western Cape 7535
South Africa

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