ADVERTISING IN NIGERIA AND THE UNWRITTEN NINE SECONDS RULE

The issue came up during the COSON SELECT STAKEHOLDERS FORUM whether or not an advertising agency can freely use copyrighted music in their adverts without authorization, permission or license from the owner, provided the duration of what was used of the work did not exceed nine seconds. The rule permitting an advertising agency to do this was referred to as the unwritten nine seconds rule. It was necessary to determine whether such a rule actually exists at law and whether such a rule was applicable in Nigeria. I might as well just quickly say that such rule, even if it exists and is applicable in some other jurisdiction, is absolutely and completely inapplicable in Nigeria. Such nine seconds or ten seconds or five seconds or any number of seconds at all rules doesn’t exist in Nigeria. It therefore follows that if any Nigerian advertising agency, believing in any such rule or variant of it, uses music in conformity with and in reliance on such rule, it will definitely find itself on the wrong side of the law. Such an advertising agency would be exposing itself and its clients to ridicule, lawsuits and claims. That is however not to say that one cannot legally use small or minimal portions of copyrighted music without license from the owner of the work. The question is whether Nigerian advertising agencies can do so and to what extent they may. The area of copyright law that deals with this question is known as fair dealing or otherwise called fair use in other jurisdictions.

What then is law of fair use or fair dealing, and how may an advertising agency properly view itself and its business within the provisions of the law in this regard? Fair dealing is provided for under the second schedule of the Nigerian copyright Act, 2004. It is an exception the general rule that one may not make copies of or use whole or portions of copyrighted works without authorization or license from the copyright owner. In other words, the law of fair use allows the making of copies of copyrighted works without authorization from the owner of copyright in those works. Lord Denning, in Hubbard v. Vosper said: “It is impossible to define fair dealing; it must be a question of degree. You must first consider the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions…”

From the words of Lord Denning, it appears that a nine seconds rule should pass; after all, that is a rather small proportion. However, one must also consider the purpose or use. Is it used for comment, criticism or review? Do advertising agencies put music in adverts for the purpose of commenting on the music, criticizing the music or reviewing it? I would think not. If any comments or reviews are being made at all, they are made in respect of a product not being that music itself. The Copyright Act states purposes which may qualify as fair dealing. These are research or private study, criticism or review and reporting current events. It suffices to simply say that when portions of music are used in the making of an advert, they are not used to serve any of these purposes and the fact that minimal portions are used will not qualify as fair use or fair dealing. Rather, they are used to serve commercial purposes – to make the public and potential customers pay more attention to the advert, fancy the advert, sustain interest in the advert and subconsciously transfer any interest or appreciation for the music to the advertised product or even generate new interest in the advertised product. The music can also help to sustain existing interest in the product. The aim of the entire process is to increase sales and this purpose can certainly not be said to have been the intention or the meaning of the second schedule of the Copyright Act, 2004.

Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.

COSON SELECT STAKEHOLDERS’ FORUM:This train is moving and is not waiting or stopping for anybody – Tony Okoroji

It is no longer news that the Copyright Society of Nigeria (COSON) has been approved by the Nigerian government as the sole Collective Management Organisation for music and sound recordings in Nigeria. There are necessary implications and indeed many uncertainties arising from this approval that bear on the operations of many people’s businesses. It is therefore necessary for stakeholders in the Nigerian entertainment and media industries to really understand this approval and how it might affect their various interests. It is on this basis that a SELECT STAKEHOLDERS FORUM was organized by COSON. The forum was designed as an interactive session for stakeholders to discuss all issues arising from the development. The forum was held on the 1st of July, 2010 at the Protea Hotel, Ikeja and it was well attended. In fact it was so well attended that the hall was filled to the brim and some people had to stand while some others stood outside. Representatives of and journalists from almost all media houses were present; artistes and musicians were also very present; record label owners didn’t stay away; representatives of PMAN and other organizations were also present; and yes, entertainment lawyers were present too.

I felt honored to have received an invitation and I even felt more honored to have been present at such a meeting, to have witnessed the beginning of progress and development of the entertainment industry in a way and manner that Nigeria has never seen. Many things were said by many people; many questions were asked and answered; many opinions were voiced and many uncertainties were cleared; in fact, a lot of passion, energy and emotion were also seen; and most importantly, a lot of objectivity was displayed. A lot of the things that were said were issues of law, some of which I have previously discussed through this medium and many of which I will still discuss.

However, in my opinion, the singular most important statement that was made at the forum was made by Chief Tony Okoroji, Chairman of the Copyright Society of Nigeria (COSON) and one time President of the Performing Musicians Association of Nigeria (PMAN). He said: this train is moving and is not waiting or stopping for anybody. Those words hit me straight in the middle of the eyes just like Charlie Parker’s notes hit John Coltrane the first time he heard them. Now, this is not to say I consider them the most creative lines I ever heard but that I felt them strongly and it’s not the aesthetics of those words that make them the most important thing said at the gathering but rather, the energy and determination that the words carry. ‘The moving train’, I interpreted as a metaphor for collective management of copyright administration and trains, being what they are, don’t stop or wait for people once they start moving. The only option for interested passengers is to get on board before the train starts moving or find a way to jump in after it has started moving – but one thing is certain, trains don’t wait and stop.

The direct implication of those words is that COSON, as the sole Collective Management Organization for music and sound recordings in Nigeria can be compared to a train; and this train is definitely moving – going to immediately swing into action, in fact it has already swung into action; is not going to be sluggish, hesitant, or inactive by waiting or stopping; and it is not going to be so sluggish, hesitant or inactive either for the benefit of any individual, group of individuals, organizations, companies or corporations or so that any of the listed may get on board. The aim and purpose of COSON is above any individual interest. There is an underlining promise made by the Chairman of COSON in those words – efficiency. There is also the underlining call to all stakeholders, in the spirit of cooperation, to join in making Copyright Collective Management system a success in Nigeria.

I must mention that though the statement was made rather in passing, it would have sufficed as a concluding statement. This is because it captures the entire mood and discussions at the forum. All that members of the board of COSON, such as Chief Tony Okoroji himself, Efe Omorogbe and Obi Asika, said can be summarized in those words that indeed the train is moving. Also, all questions asked by all representatives of organizations implied an understanding that the train would not be waiting or stopping for anyone.

Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.

LAW OF REMIX

I was watching television the other day and I was surprised at what I saw and heard; actually, I was surprised that someone was surprised, and I am sure that by the time I reveal why I was surprised, you would all be surprised that I was surprised – because thinking about it now, I am surprised that I was surprised – I mean, this is Nigeria! Well, I guess that’s why there is all this surprising.

There is so much ignorance about the position of the law on so many things in this country and the entertainment and creative industries are not left out. That is why Mc Loph was surprised. I hope this article, and indeed this column will serve to reduce the level of ignorance so that artistes and all other stakeholders can ensure that they are on the side of the law when they take business decisions and indeed creative decisions too.

Mc Loph was being interviewed on television. He expressed surprise that the family of the late Osita Osadebe had sued him for copyright infringement; after all, he had given the late highlife icon all due respect and credits. The song: Osondi Owendi, was a great highlife hit in the country decades ago. It was such a great hit that some children were even named after the song! I am not joking; I actually have a good friend in a girl that goes by the name: Osondi Owendi. She told me her father had loved the song so much that he named her after it. Interestingly, Osondi is also a singer and had intended to do a remix of the song but Mc Loph beat her to it. Mc Loph did a remix or should I say, did the song again, but in a hip hop or hip life (as some would call it) style and it was another great hit. From the interview as I saw it on television, I can say that he had absolutely no intention of committing an illegality; all he wanted was to give honour to whom honour was due – although, I didn’t think he minded making some money in the process. He appeared to have sincerely believed that all he needed to do was to give credits to Osita Osadebe and he would be on the side of the law; though I must confess, I doubt if he actually gave any thought for the law or consulted a lawyer before going ahead to record and release the song. Well, that said, he recorded and released the song, the song became a hit and he got sued for it. He is now relying on his lawyers to get him out of the mess.

What should Mc Loph have done before going ahead to record and release that song?
What exactly did he do wrong? That is, if he did anything wrong. He probably thinks he didn’t; anyway, I think otherwise, I am confident that he was wrong. The copyright owner in a musical work controls the doing of certain things as it relates to that work and anybody not being the copyright owner, licensee or assignee who, without consent or authority of the copyright owner goes ahead to do any or all of those things has infringed the copyright in the work and is therefore liable at law. From the interview, it was obvious that Mc Loph did not get the consent or authority of the copyright owner in the song, Osondi Owendi, before opting to remix, release and exploit the song for commercial reasons. All he did was give credits but unfortunately that is not what is required by the law and that is absolutely insufficient but like most Nigerian musicians and artistes, he was ignorant about the law. How I wish ignorance was excuse before the law. However, I feel quite inclined to give him credit for having bothered to give credits to the late icon; most Nigerian artistes that use other’s works can hardly be bothered, some even deliberately claim the credits for themselves, after all, ‘is there law in Nigeria?’, they might say, ‘and even if there is, does it work’? Oh yes, there is law and it does work. All it takes to put the law into action is a determined person or family like that of the family of the late Osita Osadebe. In such a case, the usual begging and prostration would fail, but who knows, such efficient tools of begging and prostration might be used to settle this case. Nigerians, gracious we.

When an artiste begins to generate the thought of doing a remix of another person’s song, he should put some things in mind. Foremost on his mind should be that there is someone out there who is in control of the copyright in the song. He should know that if he fails to get the consent of that person, he would be taking a huge risk. Of course, all steps should be taken to avoid such risk.

Ordinarily that person, who is control of the copyright in the song, would be the writer of the song. By writing the song, he has secured for himself a legal right in the song, that legal right being termed ‘mechanical rights’. There are other rights such as the phonographic rights but for the purpose of this article, treating mechanical rights will be sufficient. The person having mechanical rights in a song in Nigeria is often the artiste who performed it in the recording. This is because in Nigeria, most often than not, the songwriter, writes and sings his song himself (even if he is a terrible singer); many times too, the good singer also writes his songs himself (even if he is a horrible songwriter). The reason for this pathetic situation will be another discourse for another day but a major reason for this is the lack of a reliable music publishing system in the country; some might argue that there is no music publishing in Nigeria at all, not to talk of a reliable one. I won’t argue against such argument, one might as well put it like that!

There are instances when the songwriter will not have copyright control over the song. In such a case, it is appropriate to approach whoever is in control. Most often, that person will be the recording company. Many recording companies do give their artistes record contracts that assign the rights in the songs recorded to them, sometimes, in perpetuity and sometimes, for a certain number of years. The implication of this is that such rights will be controlled by the company instead of the artiste for a term in perpetuity or as may have been agreed in the record contract. In such a situation, it is appropriate to approach the record company who recorded and released the music.

Section 6 of the Copyright Act provides, inter alia, that copyright in a work in Nigeria shall be the exclusive right to control the doing of acts such as making adaptations of such works. It shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original. This definitely fits the profile of remixes and the doing of other versions of songs. This means that any artiste intending to do remixes or other versions of songs must have no doubt that the doing of such acts is covered by law in Nigeria, and as such notions that the Nigerian copyright laws are inadequate will not suffice in such a matter. This is because even if the laws are indeed insufficient or inadequate, the inadequacy does not extend as far as the making of song remixes.

It is certain then that in the circumstances, Mc Loph should have gotten ‘permission’ from Osita Osadebe. But what does it matter? The man is late. Copyright in a musical work does not die with the author; actually it lives on for seventy years after the death of the author. That is what the first schedule of the Copyright Act says. Therefore, when the author dies, it will take seventy years after his death before the work would be said to have entered public domain. This means seventy years after the death of the songwriter, and only then, can anybody do with the song as he pleases. Also, copyright can be transferred just like any other property; meaning that upon the death of the owner of copyright, copyright can be ‘inherited’ just like any other property. It is therefore very important for anybody intending to do a remix to know that the fact that the artiste who originally did the song is dead does not mean that anybody can go ahead and touch the song.

Mc Loph should have gotten permission; and from the television interview, he did not get permission. This permission, however, does have a legal form in which it will be most appropriate…or should I say, most safe.

A person intending to do a remix of another person’s song or music must take some steps, as prescribed by the law, to ensure that his interests are protected. If he fails to do this, then he is exposed to a lot of dangers, his investments become unsecured and he may even incur losses above and beyond his investment in making the remix. The steps available to such an artiste are either to get the owner of copyright to assign or licence the required rights to him. This may be achieved at a fee or not. These are provided for in section 11 of the Copyright Act. The details which of these two methods and how best to use them will depend on the peculiarities of each circumstance but generally, it appears to me that for such transactions, the most suitable option will be to go the way of licencing.

As said earlier, the right to control the doing of acts such as making adaptations of works, in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original, is the right involved in the making of remixes. This is the right that needs to be transferred from the copyright owner to the artiste; and the two ways which such transfer may be achieved, as earlier said too, are by way of assignment or licence.

The way of licencing, being the most appropriate for remix transactions, will be attempted to be treated. An artiste should get a licence to control the doing of acts such as making adaptations of works, in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original. He may get the license either orally or in writing. In other words, he may get“permission” from the original artiste or copyright owner by ordinary word of mouth. However, he may do this only if he does not intend to be the only one that may remix the song. If the artiste desires to be the only one to have the right of remix over a song or music and he proceeds to secure such a right from the copyright owner without it being in writing, he can be certain that such procurement is invalid. It does not matter that he may have spent all the money he has to procure the right, it would all be a waste of time, money and energy – and to no effect in the eyes of the law. It therefore follows that if the artiste wants to be the only one to be able to remix any particular song, he must make sure that the agreement is in writing; but if he wants to be just one other person that may do a remix, he may not bother putting it in writing. The licence may even be inferred from conduct. This is the joint and direct implication of the provisions of section 11(3) and (4) of the Copyright Act.

Of course, after an artiste may have come to believe that he has orally secured the right to remix a song (at whatever cost), the owner of copyright may easily deny granting such a right. Hence, it is wise to have all such transactions in writing even though the law permits that they may be done orally.

An artiste has come to the point where he is ready to secure the right to remix a song and he is intends to put it in writing. What should he do? How should he go about it? Can he just go about it the way he deems fit or should he use the services of a lawyer? Yes, he can go about it as he deems fit but of course it is advisable that he use the services of a lawyer. It is the general position of the law that where there is a written agreement, that written agreement would suffice in explaining what was agreed and any oral extension of that agreement will be excluded. It therefore follows that such written document should be carefully and properly prepared; first, in a way that it will be binding on the parties and second, in a way that it will include all the clauses and provisions that an agreement of that nature and character should include. All these should be considered in making such a written agreement and it will be simply ridiculous on my part to attempt to write all that should be considered in the making of such an agreement in this article! Simply put, epistles, bad idea.

As we must have seen by now, it is definitely of great importance to comply with the provisions of the law when one wants to make a remix or another version of a song that was written by another person. We have also seen the steps that the law prescribes of the artiste in this regard and we have also seen how to go about taking those steps. We have also come to understand that an artiste who goes ahead to remix the work of another artiste puts himself at great risk, that is, if he fails to observe the provisions of the law in so doing. It is however important to graphically come to terms with the risk involved, at least to some measure of definition.

What exactly does an artiste stand the risk of losing? Money? Yes, a whole lot of money – in terms of possible income as well as loss of investment. When an artiste proceeds to do a remix, it is both a creative decision as well as a business one. Creative, because he must have conceived a way to reinterpret or re-render the song; some creativity must come to bear in the “creation” of another version of the song. It is a business decision because he must have also decided to expend some money and resources into the making of the remix, this he chooses to do with the intention of making profit. The money he will spend in making the remix, the money he hopes to make from the endeavor and the energy expended in the making of the remix may all be lost for refusing or neglecting to take a legal decision with all the other decisions. That legal decision would serve as the insurance over his investment in the remix. There is no gain saying the importance of insurance in business transactions. That, however, is not all the money that he may lose for such omission, he may also find himself in a position of having to pay the original owner of the song some more money, simply for illegally touching his song.
How can the artiste come to lose all this money? If like Mc Loph, he neglects to take the steps prescribed by law, he may like Mc Loph, find himself sued. If he is sued, the lawyers for the claimants, that is, the original owner of the song will most likely ask of the court, remedies like the following, (and may indeed get them):

1. That the infringing artistes pay general damages for the infringement. This is where the artiste finds himself paying for illegally touching the song. This is where he pays for the psychological pain the original owner has suffered as a result of his song being illegally touched. The judge may decide to award any amount. One can never really tell how much will be awarded.

2. That the infringing artiste pays special damages for the infringement. This is where the artiste finds himself paying for any actual and accountable financial loss the original owner of the song has suffered – in terms of loss of profit or otherwise. How much the artiste will be required to pay here depends on how much the original owner can prove to have lost as a result of the infringing act of the artiste.

3. That the artiste forfeits all copies of the infringing work and deliver to the original owner of the song. This may include all the plates used in mass production. Of course upon such forfeiture, the artiste would lose all the money and energy that had been spent on the production of the CDs and copies of the work until then.

4. That the artiste be restrained from producing and selling any more copies of the work. This implies that the artiste will be prevented from further doing business and making profit from that remix.

5. That the artiste give, render and deliver accounts in respect of the remix. This will compel the artiste to give accounts of all monies derived from exploiting the remix. This implies that the artiste will lose all monies and profits which he might have gained from exploiting the work prior to the suit and deliver same to the original owner of the song.

6. That the artiste be restrained from further performing the remix in public or promoting the remix or exposing the work to the public in any form. This remedy finally destroys any advantage that may have been derived from making the remix. It renders it impossible for the artiste to get paid for performing the song in shows. It doesn’t matter if the remix was the most popular song of the artiste at the time of the suit, as was the case with Mc Loph. It will prevent the artiste from getting any more popular by virtue of the remix.

It is definitely clear from the foregoing that it really isn’t a risk worth taking. Intending to do a remix? Follow the law!

Oh, one more thing. It is a criminal act; there is the risk of being jailed.

WHAT WE EXPECT FROM OUR ROYALTY COLLECTING SOCIETIES

The battles between Music Collecting Society of Nigeria (MCSN) and Performing and Mechanical Rights Society (PMRS) have been going on for decades. The battles, the details of which I would not be going into, have been more than a serious setback to the development of our creative industries. This is because these two organizations who should have been collecting royalties on behalf of our musicians and performers used the energy they ought to have used in doing this to battle each other. The result is a lack of effective royalty collecting system in Nigeria. This has been a serious pain in wheel of progress of the entertainment and creative industries. We are waiting for the time when all the battles will stop completely and progress will be all to talk about. We really hope that that time was right now and not a single moment later.

A new breath has however been ushered into the industry and with this, new hope. This is the registration of new collecting societies in Nigeria; and of which the collapse of PMRS into Copyright Society of Nigeria (COSON) is indeed a major and a strong new breath that has brought new hope. We really hope that they, working with MSCN, can create a royalty system which the artistes and musicians; and all other creative people and stake holders in Nigeria and beyond have been waiting for.

It is important that these collecting societies know that the industry has lots of expectations of them; in fact the expectations are so huge that some artistes see them as the Jesus Christ they have been waiting for, the long awaited messiah. As such, this is a project that cannot be allowed to fail. We believe that their staff has been trained effectively and that they fully understand the role they are expected to play. We also believe that the Societies have the top technology and methods for operating in a way that will meet all the expectations we have of them; we cannot accommodate any doubts as to the capacity or the ability of these collecting Societies to fulfill these expectations. These expectations include that they be immediately operational, transparent, visible, dedicated, efficient, honest and accountable. These expectations are all clear yet vague. I will attempt to make these expectations clearer and more to the point in terms of tangible indices against which their performance, in respect of how they are to meet our expectations, may be measured.

The first of these is that we need to know their plan of accounting and distribution. They need to inform us as to when they will distribute royalties. Would it be twice a year or four times a year; on or before the 30th of January and on or before the 30th of June? Some certainty in this respect will definitely help to meet the expectation of accountability and efficient distribution. In the United Kingdom, the MCPS says they will, and indeed does distribute: At least once during each calendar month; MCPS remits to the Member such royalties fees and other monies as have then been processed and computed due to their members. This they do provided that the aggregate of such sums is not below the relevant minimum distribution value referred to in the Terms and Conditions of Business. The meaning of this is that in UK, members of MCPS are entitled to receive royalty from the Society at least one a month as long as the money due to the member is not lower than a specified minimum. We would also expect this kind of efficiency from our collecting societies. It may not be as frequent as every month but I would consider that quarterly payment is efficient enough.

Now to the second question of this particular expectation – what if they don’t pay as at when due for one reason or they other? What happens? As a sign of responsibility, they should let us know what they intend to do. We may take cue once again from UK, where MCPS pays interests on any monies held over. This is what they say: where MCPS through its neglect or fault fails to distribute sums to the Member by the date when they should have been distributed in which event the rate of interest shall be 3% over the base rate of National Westminster Bank plc. I don’t think it will be too much to expect of our collecting societies the same level of accountability. We also expect that the Nigerian collecting societies pay interest on any monies held over as it will go a long way to meet the expectations of entertainment practitioners and creative people in the country. We expect this degree of accountability and sincerity.

There is no gain repeating over and over again why the success of these organizations are so important but it does no harm to emphasize that they are indeed very important to the development of our creative industries and the economy of our dear nation at large. The success or failure of these organizations will not only be felt be musicians, authors and creative people generally, but will also be felt by the entire Nigerian populace. Hence, all should be interested in their success.

We expect a high degree of accountability, responsibility and transparency. Despite the fact that these virtues are more often than not (to put it lightly) elusive in Nigerian institutions and organization, we maintain that they are very desirable and indeed very achievable. The attitude with which our dear legislators have handled the freedom of information bill only goes to demonstrate just how much accountability, responsibility and transparency is dreaded within government circles – and this is about matters that concern the general public. Nevertheless, we expect that our royalty collecting societies will not demonstrate a feeling of dread but rather, an expression of appreciation and acceptance towards these very important virtues. We therefore urge that if they have not already done so, they should develop, maintain and administer procedures and policies that exude the said virtues.

An example of such procedures or policies is to put in place a system for investigating any accounting irregularity. Of course this can only be of use if regular accounts are given to members. Giving of regular accounts should be a matter of ordinary business for these societies as they play the role of agents in the entertainment industry, whereas the members serve as principals. It is therefore ridiculous to imagine a situation whereby the agent fails to give account to his principal. We therefore will welcome a situation whereby proper accounts are given regularly but we will be dissatisfied if procedures are not put in place for investigating any accounting irregularity. Allowance should also be given to members to do an independent audit of accounts of the societies as it relates to their own works even if such audit will be allowed only on the satisfaction of terms such as these:
a. Member may, at member’s own expense, directly audit the society’s books and records relating to relationship.
b. Member many make such audit only for the purpose of verifying the accuracy of statements sent to member by the society.
c. Member shall have the right to audit said books by notice to the society at least thirty (30)) days prior to the date the member intends to commence audit.
d. The said audit shall be conducted by a reputable independent certified public accountant and shall be completed promptly.
e. Member may take such an examination for a particular statement only once and only within one year after the date any such statement is due.
f. Any such audit shall be conducted only during the society’s usual business hours and at the place where it keeps the books and records to be examined.

As an example, MCPS undertakes to investigate as soon as practicable, any accounting irregularity notified by a member to MCPS arising out of any distribution to the member or any failure to distribute to the member. The member must however notify any such irregularity as soon as practicable after the member discovers it.

In conclusion therefore, by doing the following, our music royalty collecting societies would have gone a long way in meeting our expectations of them:
1. Immediately operational.
2. Informing us as to when they will distribute royalties.
3. Pay interest on any monies held over.
4. Giving of regular accounts to members.
5. They should develop, maintain and administer procedures and systems for investigating any accounting irregularity.
6. They should allow members to do an independent audit of accounts of the societies as it relates to their own works.

Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, This article contains general information only and is not intended to replace legal counsel.

PROTECTING CREATIVE BUSINESS IDEAS

Tomi asked me for legal advice – one that would ensure that some artistic and commercially viable ideas of hers are not lost to some establishments soon to receive her and her proposals. Tomi, – creative? Definitely, and budding with sellable ideas and she is only half way through her education at the University of Lagos. You might catch her looking lost more often than seldom, gazing high into the sky, sinking deep in thoughts and then coming out with her ‘babies’. Unfortunately she has had to watch some of these beautiful, in fact maybe ugly, ‘babies’ – nevertheless hers, taken away without her consent and indeed without even half a dime! In the process of trying to sell her ideas, she gets robbed; the very person she hopes will bring the ideas to life, or some other, does so, excluding her, and without any remuneration or credit. Naturally, she didn’t want continuous reoccurrence; that’s why she came to me.

Of course Tomi is not nearly alone, there are several Nigerian youths on the streets (and offices too) of Lagos and beyond with inspired, promising, interesting and truly commercial ideals who have fallen prey to some often adult/older individual or company who they perceived had the strength to turn their ideas into reality, make their dreams come true. Tolu is just another. He got the shock of his life (maybe just one of the several shocks of his life) when his idea for a reality television show came alive on Nigerian television stations without his knowledge or involvement. His exact words/lines as contained in a proposal he had taken around were used, thus there was no doubt that it was his work live on TV! This is not an attempt to suggest in the least that only the young have and do fall victim but the fact that the young are usually at a disadvantaged negotiating end - lacking in experience and clout makes them more vulnerable.

Now, Tolu and Tomi are friends but Tolu is more experienced with this dem thief my idea thing. We are gathered at a table in a club in Ikeja; Tolu tells Tomi, with all the love in his heart, “There is nothing you can do, at best, pray”. Tolu is looking at me, with all the hope in her heart, “Could that be true?” Well, it’s almost true!

The easiest way for anyone to have the desired protection is to have the receiver of a proposal sign a Non-disclosure and Non use Agreement. That would prevent a lot of headaches; and claims, where breaches occur, would be much easier to prove and thus recover. However, a little research I carried out revealed that these proposal receivers, whether intending the feared mischief or not, never sign such agreements; they just would not sign, after all, proposals are flying in from right, left and center; why should they incur an added responsibility – a potentially dangerous one for that matter, especially since such Non-disclosure and Non use Agreements would only be most potent for the creative mind if they got signed before the details of their ideas got exposed to the receiver and not after. Why then would anyone want to sign such agreements before identifying the actual value of the idea? The receivers can’t get it! However, for the benefit of doubt, lack of scientifically gathered data, and not wanting to fall into a fallacy of generalization, not all receivers would always refuse to sign a non-disclosure agreement; there is however a higher probability that a proposal adorned with such Non-disclosure and Non use Agreements would not be read by the receiver not alone approved by him because of the adornment than one not so adorned.

It therefore follows that this method, as efficient as it would have been is not the most practicable in Nigeria and as such people who want their ideas protected are always searching for alternative methods. Other available options will thus be considered.

‘But really, why can’t one just copyright the ideas, register them or patent them’ – this I have heard one too many times. I can understand where the ‘speakers’ are coming from and where they intend to go speaking like that; but I know they will never get there following the route of such statements. My apologies. The route that is most likely to take them there is tricky, delicate and can easily be missed. For an understanding of the route to ‘salvation’, an understanding of the ‘speakers’ route and why it wouldn’t lead anywhere –not even ‘damnation’, is necessary. The law on copyright in Nigeria does not protect ideas; rather, it protects the expression of those ideas. The key word is ‘expression’. Section 1 of the copyright Act of 1988, CAP 28, LFN 1990 lists works eligible for copyright as follows:

1. Literary works;
2. Musical works;
3. Artistic works;
4. Cinematograph films;
5. Sound recordings; and
6. Broadcasts.

Section 2(b) of the same Act states that the work must be fixed in a definite medium of expression to make it eligible for copyright. I believe the rationale for this position is that the fact that an idea was conceived by a certain Mr. A does not mean that a Mr. B cannot get the same idea; and that Mr. A got it first should not entitle him to an exclusive possession or use of that idea as that is what copyrighting the idea would imply. That is reasonable to me and I sincerely wish our Nigerian legislature could sincerely claim credit for such thought. That is however not to be. So, a raw idea, no matter how ingenuous it is, has no protection under the Nigerian copyright law. Also, there is no such register or registrar for ideas in Nigeria. None has been established by law in any part of the country whatsoever. That means one can’t just register the ideas, as simple as it sounds; and for the patent ‘route’, patents are simply granted to inventors not idea generators. The nature of an object for a patent has to be scientific, technological etc; and it has to be an invention. A method for doing business is definitely excluded.

For this writer, the ‘route to salvation’ for the Nigerian young (and indeed older) creative and industrious minds lies in the sufficient conversion of the idea to the best suited category of protected works under the Copyright Act. It is under these categories that cover lies. Of course, the now, works, would inevitably contain the ideas. This might as well be tantamount to self execution of the projects thereby defeating the whole purpose of writing proposals and indeed this article. One must carefully put the idea into expression in suitable and covered categories without going ahead to completely execute the project by oneself. What is important to note here is that the required act is to sufficiently convert the ideas and not completely self execute the project. Drawing the line between sufficiently expressing the idea so as to be protected by law and executing the idea can be tricky. Identifying the best suited category can equally be tricky.

What has been provided here is only a pointer in the direction to go; it is not a complete road map for all circumstances. It turns out that the minds are not as helpless and without cover as they might seem. Tolu was wrong but he had a good reason to think and talk as he did.

ARE “BEAT COOKS” (MUSIC PRODUCERS) EXTORTED OR SHORT-CHANGED?

It is not completely accurate to refer to beat makers as music producers. Sometimes, their functions overlap and sometimes not. Beat making thus strictly speaking, is quite different from music production but for the purpose of this article, the two will be taken as one. This is because this article will be dealing with the aspect of music production that involves beat making and its possible legal implications. The questions are loud: what kinds of arrangements or transactions are common in the music industry that can put most music producers at a disadvantage? What is the nature of transactions that can enable the producers to take more advantage?

It must be that the audience or consumers of a piece of music in contemporary times eat beats, and the makers of the beats, cooks. That would explain why the process of beat making is often now referred to as “cooking”. I don’t have a problem with it, as a matter of fact, I kind of like it –why can’t studios be referred to as kitchens? In reality, a comparison of the processes involved in putting a meal together and that of putting a piece of music together would reveal an undeniable similarity - it’s all about ingredients and timing.

It took me a while to understand what is now meant by ‘beat’ in a piece of music. I had no problem in appreciating the word from the perspective of theory of music; after all, there must be a number of beats in a bar, that is, if the music is divided into bars. I certainly can count beats, it is rather easy and it hardly requires any creativity to ‘create’ these. However, what ‘beats’ mean in the ‘real’ world is very different. I wonder who started it. I thought maybe it meant the beating of the drum parts, in other words, the drum pattern. I was wrong. In this real world, if what you are hearing is not the vocal parts then it’s the ‘beat’. Simple! This is however not to be considered as absolute as where it concerns Timberland, some of the vocal parts still forms part of the beat! Nevertheless, one can safely substitute the word ‘accompaniment’ for beat, they mean the same thing in the real world and the moment I figured that out, my problems were solved. The academic understanding of the word “beat” is therefore different from the popular or industry understanding of it. The music academia exists inside but outside this world; I guess they are an example of what it means to be in this world but not of this world.

For the purpose of this article, however, we are concerned with beats as it is popularly understood and used in the music industry, the possible processes through which a beat may be made and the possible legal implications for the artiste and the beat maker/ music producer depending on the process or method employed.

Does the beat come before the song, or is it the other way round? Which should come before the other? Simple. Of course, the accompaniment should come only after what it is supposed to accompany! That makes sense but that’s wrong, wrong, and nothing but wrong! Easy assumption, wrong conclusion! I know it only makes sense that it should be that way but there are many things about the music of today, and the way it is made, that “doesn’t make sense". If fact, the more lyrical and musical sense one can manage to kick out of the music the more money one is likely to kick into one’s bank account. So eventually, the less sense the more sense. It is fast becoming the norm, especially in hip pop and R n’ b genres for the beat to have been fully cooked before the artistes write even a word or a melodic phrase, making the music – and song, dependent on the intellectual effort of the cook. I don’t have a problem with this either; it only shows that the earth is definitely spinning, not stationary. Change is the word, but whichever of the processes or methods employed will have it own necessary legal implications. These legal implications will be considered.

Is there a difference between the beat that comes before the song and the one that comes after the song in terms of legal status? Probably not much and probably with little significance in countries that are not our beloved Nigeria. The legal principles are however generally the same but the difference is one of such that the Nigerian beat cooks/music producers can take advantage of to improve their lot in the industry. It is not the norm for Nigerian music producers to receive any royalties from works produced by them; not that the artistes are much better-off themselves in respect of same. It is ridiculous, we all know, but there is simply no reliable and efficient method of collecting musical royalties in Nigeria! Then, the good old pirates (this is definitely one place where we should all sigh), often referred to as the Alaba boys- they go further by making it easier for legitimate music entrepreneurs to lie about record sales, they also make them sell at ridiculously low prices; the radio stations/DJs and presenters also, are rather more accustomed to ‘receiving royalties’ from artistes to play their music instead of … bla … bla… bla (I simply cant bother). This is Nigeria and all these factors conspire to keep the Nigerian music artiste and music producer in poverty. This is Nigeria but Nigeria won’t always be this; Nigeria hasn’t always been this – not that it has been that much better. Among others, steps are being taken to ensure that the telecom companies for one, pay royalties to artistes for use of their works, in many cases of which the works used could very well be the beats only or the beat signatures, this being the popular melodic theme or rhythm of the beat.

Generally, at law, the owner of a copyrighted work is the maker and for all purposes, there is nothing under the law to prevent a beat cook from asserting his rights over his beats as copyrighted works, provided all legal requirements are met, and thus open up new ways of benefiting from his beats. The example of the telecom companies above is just one way! But then, can beats which come after the song, and thus properly, accompaniments, claim such rights? It definitely won’t be as easy but arguments from the perspective of the impact on public, of composed themes as indivisible parts of the beats may be adequate, depending on the facts of each case as there is a difference between the development of accompaniment for a song and the composition of themes that embellish a song. It is worthy of note that however, both are activities in music production. This is an example of where the difference lies between beats that come before the song and the one that comes after.

Artistes in Nigeria have been reaping millions from and as a result of well cooked beats from shows, among others; but the producers who create this beats benefit much less, in fact, incomparably less from the same very beats! Are the artistes cheating the producers? Maybe it’s the system but the producers can as well take advantage of the law to protect their interests.

The questions are loud: what kinds of arrangements or transactions are common in the industry to put most producers at such disadvantage? What is the nature of transactions that can enable the producers to take the advantage? The best transaction type depends on the circumstances of each case, the peculiar wants and preferences of the producer and the eventual resting nest of negotiation flights. Each transaction type also has its shades, which can be best suited to each case.

It can be thus concluded that if beat cooks are being extorted it is not the law that is to blame; and the extortion can stop. In fact, that is what the law wants! (If I may speak for the Law)

Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08067341743)
This article contains general information only and is not intended to replace legal counsel.

Nigeria, Nigerians

This is about Nigerians and their siddon look attitude towards Nigeria and why such attitude should have no place in our creative industries. Of course, the attitude should have no place in all areas of our lives too.

I got a feedback to one of the previous articles that I had published on this page. It said: look here, there is nothing people like you and your articles can do to change things in this country; the entertainment industry has absolutely no structure and the situation is hopeless, helpless.

The author of the feedback meant no harm. As a stakeholder in the entertainment industry, he wished things were better but over time and probably as a result of a few disappointments or frustrations, he had come to a state of resignation. I don’t blame him, his premise is right by saying that the entertainment industry has no structure but his conclusion that the situation is hopeless is faulty; I understand him but I have to disagree with him, not because I believe that I and my articles can single-handedly cause a magical change of some sort but simply because I am convinced that it is unacceptable that the situation be hopeless or helpless. We cannot take to resignation and thus become inactive. Inaction will not turn the seemingly hopeless situation around; rather it will strengthen and feed the hopelessness. There is no still position; it is either forward or backward. Creativity needs to be rewarded. The development of society depends on creativity and where the society fails to reward the energy and the minds that develop its consciousness, you find that creativity will be suffocated and thus the development of society stunted. The battle that I might appear to have joined is one borne out of the necessity of keeping the fire of Nigerian creativity alive and burning. It simply cannot be allowed to die.

It would be extreme falsehood to say that Nigeria has a well structured entertainment industry but steps are being taken to put a structure in place. An example of such steps is the recent registration by the Nigerian Copyright Commission of Collecting Societies. It is tough to imagine that there is no proper royalty collecting system in a nation, which has the largest music industry in Africa and the third largest movie industry in the world? It however need not be imagined, it is a fact.

The huge effect of this lack of structure cannot be overstated. Local artistes hardly receive any royalties for the use of their works and neither do they earn meaningfully from record sales as the market and major distribution networks are largely controlled by pirates. Foreign investors are not interested in investing in such an environment and foreign artistes and stakeholders lose heavily as the use and consumption of their work fails to result in earnings for them. In the United States as well as many other countries, the government generates a lot of income from the industry through taxes. This is not so in Nigeria. There are no structures to determine or observe industry earnings thus making it impossible to tax effectively. Nigerian artistes are exploited because they are ignorant of their rights. It is therefore important that the entertainment industry in Nigeria develops proper structures and that as many trained hands and minds as possible be available to contribute to the development.

The questions that the feedback raised are still unanswered. What can people like me do? What is the point? Society cannot be structured and ordered without the instrumentality of the law. Any efforts to structure or organize the entertainment industry will be absolutely incomplete without the law. The Nigerian entertainment law needs to be equally developed to meet the challenges of the growing industry. While such development is going on, the current body of laws forming the Nigerian entertainment law also needs to be utilized and relied on in the structuring of the industry. Industry practitioners need to be aware of their rights and the position of the law on their activities and transactions; hence lawyers and articles such as these. Need I say more?

I therefore call on all industry stakeholders to put aside their siddon look attitude and contribute what they can to the development of the industry. It need not be something huge or overly dramatic like trying to shut down the Alaba boys all by oneself; collective small efforts will create a huge impact. Isn’t there a saying that small drops of water make a mighty ocean?

Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08067341743)
This article contains general information only and is not intended to replace legal counsel.

MUCH ADO ABOUT TERRY G’S STEALING

An article, published in one of the media some weeks ago, had “Terry G rips off yet another artiste” as its title. This immediately suggests that one of the reigning Nigerian music artistes – Terry G, has taken to stealing - stealing from fellow artistes! The questions that immediately come to the mind of the readers are – Terry G, a thief? , why? Could this be the truth? Who are his victims? The article reported that an artiste, who is just one of Terry G’s victims, Ditty blaq, recently announced his disgust at Terry G for using a beat he sold to him for N150, 000:00. He expressed more disgust that Terry G showed no remorse, made no refunds and failed totally to correct the wrong.

That is the case against Terry G. Is he guilty? Of course, all we have before us are mere accusations, the substance of which has not been determined. It is however worthy of note that Terry G made a somewhat confession. The beat in question is that used for Terry G’s song, street madness. In the song, interestingly, Terry G admits guilt, as he says, “the person weh geti dis beat eh, dem dey for outside eh”. That’s a whole lot of confidence, one might say. We have no further responses from Terry G on these accusations and as such, we are inadequately armed with relevant facts to be able to take any conclusive stands on who is right and who is not. This being that it is not uncommon for artistes to make untrue statements in their songs; fancy statements delivered with swagger is what counts and not the truth of those statements. Also, Terry G may think and say he is guilty and be wrong about it – for lack of information. However, we are in a position to make some valid deductions and provide useful opinion. The information at our disposal and knowledge of the Nigerian music industry practices and customs will be placed against the provisions of the law to do this but in so doing, a basic assumption would have to be made, – that the accusations are true.

It is necessary to mention at this point that the aim of this article is not to determine the guilt of Terry G but rather to examine the issues that the accusations bring to the fore and to suggest methods which industry practitioners may take under the law to protect themselves. Issues the accusations bother on include the following:
1. Artiste and music producer transactions in Nigeria (customs)
2. Legal character of a beat
3. Beat ownership and transfer
4. Post-transfer rights, limitations and liabilities
5. Remedies

It is common practice among the younger Nigerian pop musicians, generally referred to as the Nigerian hip-hop artistes, the category an artiste like Terry G falls into, to simply walk up to a music producer or beat maker, the latter being a more accurate description for most instances, and buy a beat. Simply put in a dramatic form, artiste says, “Mr. Producer, I wan buy beat. Which ones dey ground?” This he says, absolutely unaware of the nature of the legal transaction he just proposed. Mr. Producer makes a couple of beats available for listening. The artiste and often times his friends too do some listening and the preferred beats are chosen and paid for. Mr. Producer then makes the beats available in stereo and multi-track formats. Then the artiste says to himself, “I have just bought some beats, I am on my way to becoming a star.”

The beat is treated as if it were a simple common commodity. A beat, the subject of this kind of transaction, where an artiste simply walks up to a beat maker or buyer, requests for a beat, listens to available ones, and buys, is not a common commodity. It is intellectual property and it is a copyrighted work. Such beat differs from common or simple commodities because the law provides how such may be transferred. It therefore follows that if that procedure is not followed as in the example above, the artiste has not legally bought any beats. It also follows that if Ditty blaq and other Terry G victims had similar transactions as in the above example and failed to follow the provisions of the law, then they did not legally buy the beats from Terry G. It is actually that simple. Section 1(2) of the Copyright Act, 1988 provides as follows:

“A literary, musical or artistic work shall not be eligible for copyright unless –
a. Sufficient effort has been expended on making the work to give it an original character.
b. The work has been fixed in a definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.”

A beat is without doubt a musical work and it fulfills the above conditions provided by law as the producer did put a lot of effort, energy and creativity into bringing it to existence. The beat is also burnt on a compact disk (CD), which is a definite medium of expression from which the beat can be perceived, reproduced and communicated, hence the conclusion that the character of a beat is that of a copyrighted work and not a common commodity.
In order to legally “sell” or “buy” a beat, section 11(3) of the same Act provides:

“No assignment (that is, sale) of copyright and no exclusive license to do an act, the doing of which is controlled by copyright, shall have effect unless it is in writing”

The implication of this provision is that for a sale of beat transaction to be legally effective, it must be in writing. All possible legal implications and copyright control as it relates to the needs and intentions of both the producer and artiste need be considered in the preparation of such a document. The effect of failing to do this can be far reaching. It is also important to note that it is only the owner of a beat that can sell it. Kind of obvious, one would say; but then, who is the owner? Ownership vests in the author, the author being the beat maker. A legally valid purchaser of a beat may also sell or deal with a beat in several other ways as provided by the law.

After the transfer of a beat through sale or other alternatives provided by law, the rights, liabilities and limitations of the producer and artiste or as the case may be largely depends on their agreement as contained in the written document. In other words, the written document, being the instrument of transfer will determine what either party may or may not do with the beat after transfer is completed.

Should either party fail to keep within what he is authorized to do with the beat, there are options available to the aggrieved party to make good his loss. These options are however very dependent on the facts of each case and may include filing a case in court to prevent the use of the beat in an undesirable way, to enforce one’s legal right over the beat or to demand for one’s legal entitlements arising from the use of the beat.

Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com)
This article contains general information only and is not intended to replace legal counsel.