Music Laws in Nigeria
Music Laws in Nigeria
Music Laws in Nigeria
Introduction
In Africa, music is an integral part of the culture of the people. In fact, the curious
beauty about African music is that it uplifts even as it tells a sad story. Such is the
level in which music is revered in Africa. Over the years, the continent has produced
musicians and artists who have gone ahead to influence generations both within and
outside the continent, creating styles such as afrobeat which has gone on to
contribute immensely to the world.
The economic importance of music industry has been amply documented. The music
industry is one of the fastest growing export sectors of the global service economy.
Being a creative expression and related intangible assets, copyright law plays a
critical role in determining its performance. The export potential of music is already
recognized, in addition to its complementary links countries, and its role in the
promotion of national culture. The copyright is one of the essential institutional
mechanisms, which has helped facilitate the creation and dissemination of musical
works through modern business enterprises, by providing a framework to manage
the problems arising from the joint consumption and imperfect excludability of the
works. It is part of the institutional framework that helps define a marketable
product as well as reliable income flows (through royalties and related income).
Originality and creativity are two integral parts in the production of music. An artiste
is expected to bring forth his music from within whilst getting a message across or
making people dance and as such, he is to be rewarded for his creativity. The
protection of musical works is an aspect of copyright. This guarantees the owner of a
musical work the control and management of his work, alienating everybody else
from using the music without his authorization.
In this article, we highlight the current developments in the music industry, the rise
of musical covers in Nigeria, the sampling of songs and lyrical content which has led
to accusations of copyright violations, and the rights of the author(s) of a musical
work.
The music industry takes care of all aspects of the music business, has different
organizations, and outfits working together for a common goal. These organizations
include the artists, composers, managers/talent developers, the media, live music
promoters and distributors among others.
Copyrights in a musical work may be owned by just one author, in which case, the
author must have been the lyricist, the instrumentalist as well as the sound recorder.
However, this is rarely the case; more often than not, copyright in a musical work
would be attributable to different authors based on the nature of their respective
contributions to the final product. Therefore, the lyricist will own the copyright in the
lyrics of the song as a literary work, the instrumentalist will own the copyright in the
melody accompanying the lyrics as a musical work, while the record label or the
recording studio would own the copyright in the sound recording. It is also possible
for more than one author to jointly own a single specie of copyright where the work
is collaboratively produced. By implication of the delineation of copyrights in a
musical work, two revenue streams can be explored by the authors involved. The
artists or creatives may assign or license the work to a publisher for profit, while the
record label or recording studio may distribute copies of the recording or authorise
its public performance, also for profit. These revenue streams are made possible by
virtue of the exclusive rights of the author.
The concept of exclusivity is at the core of the author’s bundle of rights. Exclusivity
allows the author to exercise particular rights reserved by the Copyrights Act for the
author’s sole benefit. However, the author may choose to license the work, thereby
permitting a licensee to exercise some of the author’s exclusive rights within the
precincts of the licence. Alternatively, the author may transfer the proprietary
interest in the musical work by assignment, which would effectively terminate the
author’s exclusive rights in favour of the assignee of the copyright. Section 6(1)(a) of
the Copyrights Act recognises the exclusive right of the author to; reproduce the
musical work; publish the musical work; perform the musical work in public;
produce, reproduce, perform or publish any translation of the musical work;
distribute copies of the musical work by way of rental, lease, hire, loan or similar
arrangement; broadcast or communicate the musical work to the public by a
loudspeaker or any other similar device; and make any adaptation of the musical
work. As the first owner of the copyright in a musical work, the music artist or author
is in a position to determine how the musical work would be initially commercialized.
Thus, the author may for instance assign all rights in the work to a commercial music
purveyor, or the author may choose to only grant limited licences, thereby retaining
control over the musical work. However, where the author grants a mechanical
license to a record company, the copyright in the resulting sound recording would
belong to the record company and the author may or may not have limited control
over the resulting sound recording depending on the terms of the recording contract.
To retain full control of the musical work, the artist would, in addition to authoring
the musical work, also record the same. The artist may then negotiate a distribution
deal with an established record label who would take on the responsibility of
marketing and promoting the work in return for a share of whatever profit is derived
from the work.
On the other hand, the author of a sound recording enjoys the exclusive rights
stipulated by Section 7(1)(a-b) of the Copyrights Act, that is; the right to control in
Nigeria the direct or indirect reproduction, broadcasting or communication to the
public of the whole or a substantial part of the recording either in its original form or
in any form recognisably derived from the original; and the right to control the
distribution to the public, for commercial purposes, of copies of the work by way of
rental, lease, hire, loan or similar arrangement.
The record company derives its authority to make a mechanical recording of the
musical work either directly from the artist or from the publisher authorised by the
artist. The initial or first recording of the musical work is known as the Master
Recording, and it is from this first recording that all other copies trace their origin.
The Master Recording only retains a symbolic value after the first copy of the
recording is made, as all other copies would be made from copies of the recording
already in circulation. Usually, the license agreement between the sound recorder
and the publisher or artist would guarantee the artist or publisher a percentage of
the profit made from the sound recording. However, the artist would lose control
over future distribution of the recording, and for this reason, it is advisable for the
artist to not only agree a lucrative deal, but to also agree an option to purchase the
Master Recording in future at a fairly negotiated price
The exclusive rights enjoyed by the author of a musical work and the author of the
resulting sound recording cohesively form the foundation for commercialization of
the musical work. This is because the concept of exclusivity forbids the use of a
musical work without the permission of the author first being sought and obtained.
This permission or authorisation may take the form of an assignment or a licence
whether exclusive or non-exclusive, limited or unlimited. Music publishing contracts
are one of such licences. Music publishing contracts regulate the relationship
between the authors or creatives and the music publisher. These contracts deal with
the copyrights in the lyrics of the musical work and the melody accompanying same
which together constitutes the musical composition. The publishing contract allows
the publisher to exploit the musical work.
Many times, the publisher would engage the services of a copyrights collecting
society to effectively monetize all public performance of the musical work, however
where there is no music publishing contract in place, the author may deal with the
copyrights collecting society directly. Copyrights collecting societies undertake a form
of collective administration of copyrights licensed or assigned to them by their
members (authors and publishers). They do this by negotiating licenses with persons
interested in publicly performing the work such as radio or TV stations, restaurants,
or webcasters and they collect and distribute royalties to the owners of the
copyright. It is generally better for the author to grant an exclusive license to a
copyrights collecting society as opposed to assigning the copyrights in the musical
work. By only granting the copyrights collecting society an exclusive licence, the
author retains a fair degree of control over distribution and use of the musical work.
However, where the copyright is assigned to the collecting society, the collecting
society becomes the copyright owner and is thereby entitled to exercise all the
exclusive rights of the author including the right to sue for copyright infringement.
In Nigeria, music plays an important role in the everyday life and contributes im-
mensely to the economy. Nigerian artistes are world renowned, earning features
with American artists such as Drake, Chris Brown to name a few. They have also con-
tributed slang with words like “30 Billion Gang”. Nigerians pride originality, innova-
tion and creativity and because of the predominant style of music, “musical beats”
are invented in almost every new song, this invariably reduces the attention paid to
sampling (or so it seems). This extends to music videos too with several video direc-
tors recycling swiped ideas while shooting music videos for different artists.
Ironically, there has not been a single report of a successful sampling or related copy-
right suit in Nigeria. The reason for this apathetic attitude raises many questions as
the level of awareness of these artistes for their copyright protection. Recently, pop-
ular Nigerian artiste, Tekno dropped his version of a popular song titled “kpolongo”
by a duo named “Mad Melon and Mountain Black” popularly called “danfo drivers”.
One would have expected this to be followed with a suit alleging intellectual theft
but rather, albeit a little true to their names, the “danfo drivers” called out Tekno on
radio and claimed to be on a manhunt for him. Fortunately, for Tekno, he met up
with the artistes and claimed the matter has been resolved via Instagram. In as much
as the situation may seem laughable, it clearly depicts the current attitude towards
sampling in Nigeria.
Concerning covers of songs, there has been an endless love affair with song covers in
Nigeria, whether the songs covered are Nigerian hits or worldwide dance tunes as
seen with Ycee’s cover of Designer’s Panda, Omawunmi’s cover
of Adele’s Hello, Maleek Berry’s cover of Rihanna’s Work. There is also the curious
case of Destiny Boy, a 13yr old, who makes Fuji covers of popular Nigerian songs and
gets major airplay.
In the Nigerian climate, there are no express provisions governing covers of songs
unlike in other climates where a person must obtain a mechanical license in order to
reproduce a song and a synchronization license in order to reproduce a song as a
soundtrack into TV programs, movies and commercials. One wonders if maybe these
artistes get more accolades than they deserve.
The Federal High Court has exclusive jurisdiction to adjudicate matters of copyright
infringement, and any such infringement is only actionable at the instance of the
owner, assignee, or an exclusive licensee of the musical work. Thus, any person
purporting to litigate a case of copyright infringement in any other capacity (such as
a non-exclusive licensee) would lack the locus standi to maintain the action, and
without locus standi, the court would lack the requisite jurisdiction to adjudicate the
suit. In addition, where an action for infringement brought by the copyright owner or
exclusive licensee relates to an infringement in respect of which they have
concurrent rights of action, the copyright owner or the exclusive licensee may not,
without the leave of court, proceed with the action unless the other is either joined
as a plaintiff or added as a defendant. A further limitation is placed on suits by
persons carrying on the business of negotiating and granting of licenses; or collecting
and distributing royalties in respect of copyright works, or representing more than
fifty owners of copyright in any category of works protected by the Copyrights Act.
Such persons are prohibited from suing for copyright infringement unless they are
approved to operate as a collecting society or have been exempted by the Nigerian
Copyrights Commission.
Conclusion
Artists are entitled to some form of compensation every time their musical work or
sound recording is exploited in a public and/or commercial setting by such entities as
hotels, clubs, TV stations, etc. Unfortunately, there seems to be a general lack of
awareness among artists as to how their copyright can be effectively exploited in or-
der to generate a sustained stream of revenue.
Although there is an optimistic expectation that the Nigerian music industry will con-
tinue to grow, artists must also give some attention to the legal and economic aspect
of their business. For artists, it is not enough to be simply talented; it is also crucial to
have some legal and commercial awareness.