Copyright war: How federal high court sealed MCSN’s fate

COSON boss, Okoroji

Any hope of the unapproved Musical Copyright Society of Nigeria (MCSN) that it will be allowed to operate legally in Nigeria as a copyright Collective Management Organization (CMO) has been buried by the Federal High Court sitting in Lagos.

In a landmark ruling by Hon Justice O.E. Abang on October 24, 2014, the court threw out the case filed by MCSN in which it had sought an order of the Federal High Court restraining Copyright Society of Nigeria (COSON) from parading itself as Nigeria’s sole collective management organization for musical works and sound recordings.   

In its battle for legitimacy, MCSN had on the 22^nd of March 2013 filed Suit No. FHC/L/CS/377/2013 against Copyright Society of Nigeria (COSON) and the Nigerian Copyright Commission (NCC). In the suit, MCSN had asked the court to declare that COSON fraudulently misrepresented particulars of its membership to the NCC which particulars the NCC relied upon to grant approval to COSON. MCSN also asked the court to revoke the approval granted COSON by the NCC and to declare that the approval of COSON as a sole collective management organization deprives MCSN, its members, assignors and affiliates of their fundamental and constitutional rights to freedom of association, freedom to own and enjoy property in copyright and access to justice and as such is unconstitutional, null and void.

In response, COSON filed a preliminary objection on the 2^nd of May 2013 contending that MCSN lacked the requisite locus standi to institute the action and that MCSN did not obtain the necessary leave of court to file the suit as required under Order 34, rules 3 and 4 of the Federal High Court Rules. COSON also contended that the suit amounted to an abuse of the processes of the court as the relief sought had been litigated upon in the Federal High Court in Suit No. FHC/L/CS/798/2010 (Musical Copyright Society of Nigeria v. Nigerian Copyright Commission).

In his ruling, Justice Abang made a clear distinction between the decision of the Court of Appeal in MCSN v. Adeokin Records & Anor (2002) and the decision of the Appeal Court in Compact Disc Technologies v. MCSN (2010). He said that the Adeokin decision cannot be of assistance to MCSN because the Court of Appeal interpreted the provisions of section 15 of the Copyright Act 1988 which had no limitation provisions. He went on to say that the Compact Disc decision of the Court of Appeal applies to the instant case not just because it is later in time but because the decision interpreted the 2004 Copyright Act which has limitation provisions in section 17 of the Act.

In his ruling, Justice Abang agreed with COSON that MCSN did not fulfill the conditions under Order 34, rules 3 and 4 of the Federal High Court Rules. He also, in alignment with the Court of Appeal decision in Compact Disc Technologies v. MCSN (2010), ruled that MCSN lacked the requisite locus standi to institute the action.     

On the long canvassed argument by MCSN that that the requirement for it to be approved by the NCC before it can operate as a CMO is unconstitutional, Justice Abang ruled thus: “On the issue of section 17 of the Copyright Act being in conflict with sections 43 and 44 of 1999 Constitution as contended by the Plaintiff’s Counsel, it is my view that the requirement to obtain a licence from the 2nd Defendant to operate as collecting society does not amount to compulsory acquisition of the Plaintiff’s property. The fact that the Plaintiff is required under section 17 of Copyright Act to fulfill certain conditions to be entitled to exercise of a right acquired by him does not in my view amount to compulsory acquisition of a right to own a property. Section 17 of the Copyright Act is not in any way in conflict with the combined provisions of sections 43 and 44 of 1999 Constitution”

In conclusion, Justice Abang said, “I have no jurisdiction to entertain this suit. It is accordingly struck out with cost of N10,000.00 each awarded in favour of the 1^st and 2^nd Defendants payable by the Plaintiff”

Reacting to the judgment, COSON Chairman, Chief Tony Okoroji said, “Justice Abang has shown that he has a clear grasp of the issues and the law in this matter. He has not allowed himself to be obfuscated by the multiple litigation maneuver which MCSN has deployed in a desperate search for a decision it can use to confuse the general public and in particular, the users of music. The judgment is crisp, clear and unambiguous. The music industry can move ahead and sing in harmony. It feels good”