Piracy: Blame Nigerian Copyright Commission

WHEN Kunle Afolayan, Igwe Gab Okoye (Gaboosky) and other artistes and film producers went on a rally to the office of former Lagos State Governor, Mr. Babatunde Raji Fashola (SAN), to protest the scourge of piracy, they were only rueing a practice that has seriously affected their business and fortunes.

One wondered what the Lagos State government can do on a subject which is on the exclusive list, that is, an issue which is under the exclusive jurisdiction of the Federal Government.

The problem of piracy is caused by official corruption, abuse of office and impunity by some officials of the Nigerian Copyright Commission (NCC), the Federal Government agency regulating all matters relating to copyright in Nigeria.  Curiously, the type and volume of abuses which daily occur in the Nigerian copyright space do not occur in other IP sectors such as Patents and Trade Mark and Designs. 

Ironically, the volume and velocity of copyright abuses being experienced since the establishment of the NCC were never experienced before the commission came into being!
 
Are we therefore saying that the creation of the agency is the root cause of the conflagration of the piracy menace? This cannot be the reason because there are other agencies created to assist in the regulation of various sectors which are enhancing the purpose and progress of the sectors. 

The agencies include National Agency for Food and Drug Administration and Control (NAFDAC), Nigerian Communications Commission (NCC) and National Insurance Commission (NAICOM).
 
If NCC is not the problem, then certainly, the operators or the officials must be. There have been copyright regimes in Nigeria right from the colonial times up to Nigerian independence with the first indigenous copyright law promulgated in 1970 as Copyright Decree No. 61 of 1970.  Nigerian artistes and their legal representatives together with their proprietary interests were effectively protected under those regimes until the introduction of a new copyright law which was promulgated in 1988, the establishment of the Nigeria Copyright Commission (NCC) in 1989 and amendments to the Copyright Decree in 1992 and 1999, which are all now known as the Copyright Act 2004.
 
When the NCC was established in 1989, rather than taking stock of what were already on ground with a view to strengthening them for the efficient regulation and basis for standardisation in the sector, the commission’s officials went on a mission aimed at wiping out existing institutions on copyright administration with the aim of creating their own structures. 

One of those organisations is the Musical Copyright Society of Nigeria (MCSN), which was established in 1984 and operating since then with an intimidating repertoire of copyright works. 

The NCC and certain of its top officials spent not less than 16 years following its establishment to antagonise and fight MCSN (which they are still doing till date), while doing virtually nothing to develop the NCC as an agency or advance the cause of copyright administration and enforcement or create any viable or democratic structure to assist copyright interest holders. 

The only structure which the NCC created is the Copyright Society of Nigeria (COSON) in 2009, but which was a mere transformation and change of name of the Performing and Mechanical Rights Society of Nigeria (PMRS), which was formed and approved by known members and top officials of the NCC in 1994!  Till date, NCC has not given a clear explanation as to why certain members of its Governing Board would form an organisation, which they approved for themselves as a sole collecting society to the exclusion of other organisations, including MCSN… 
 
Piracy began to escalate first, with the establishment of the board of the NCC and later with the unlawful refusal of the commission to approve MCSN and other interested individuals and groups as collecting societies in spite of the fact that MCSN and certain of these groups have been in existence and operating before the establishment of NCC and the law which gave the NCC powers to approve collecting societies. 

This refusal led to protracted litigations, which held the entire copyright system down, and pirates and infringers of copyright had field days in their nefarious activities.  This naturally would be the case, because the NCC has tied the hands of the copyright owner/holder, mainly MCSN, behind its back through its powers to approve who can go to court as captured under Section 17 of the Copyright Act.
 
It is only in the copyright sector that you have a law which would require a property owner, be it in single or multiple form, to first obtain the licence or approval of a government agency before it can move to enjoy or enforce its property right or even approach the court for redress.  These are the serious implications of Sections 17 and 39 of the Copyright Act 2004. Certain officials of the NCC, particularly those in its enforcement and litigation departments, have been exploiting these provisions to deny legitimate copyright holders of the benefits of their proprietary holdings.
 
There is nowhere in the Copyright Act where it is provided that the “entire industry” could come together to form a single monopoly as a collecting society!  The Copyright (Collective Management Organizations) Regulations 2007 is also very clear on the process of approving collecting societies.
 
The National Assembly Public Hearing on the activities of the NCC conducted by the House Joint Committees on Justice and Judiciary in May 2013, passed a series of resolutions directing the NCC to immediately approve MCSN as a collecting society among others. However, NCC officials have continued in their impunity by refusing to carry out the directives of the National Assembly after the findings and recommendations of the Joint Committees of the House were unanimously adopted and passed as resolutions in December 2013. 
 
As far back as 2006, former President Olusegun Obasanjo had directed that NCC be merged with the Offices of the Registrar of Trademark, Patents and Designs to be known as Nigeria Intellectual Property Commission (NIPCOM). It was expected that such an establishment would catapult the Intellectual Property sector vis-à-vis NIPCOM into class “A” Agency in the Nigerian economy.  But sadly, NCC dilly-dallied until the tenure of the former President lapsed without the directive being obeyed. President Muhammadu Buhari must revisit this issue.

In most other countries, the entertainment industry contributes not less than 20% to their national GDP.  The question therefore remains why should the NCC force a single organisation (COSON) to do what more than three organisations can effectively and efficiently do in Nigeria with a population of more than 170 million people?  The simple answer is corruption! With a new government in place under President Buhari, which is determined to effect change in the polity and desirous of diversifying the economy, the Intellectual Property sector, particularly, copyright, should be of prime importance in the expected shake up. It is not just about changing the present Director General of NCC as was the case in previous instances, but also overhauling the entire structure.

•Dr. Eyo is a Copyright lawyer based in Lagos