‘Copyright Commission Not To Subtract Copyright Owners Rights’

In The Federal High Court, holden at Lagos, Nigeria on Monday, July 25, 2011. Before Justice Charles

Efanga Archibong Judge. Suit No:

FHC/UCs/35/2008

Between

Musical Copyright Society Of Nigeria Limited

Mr. Mayo Ayilaran

Mr. Orits Williki

Mr. Louis Bassey Udoh

Mr. Halim Mohammed- Plaintifs/Applicants

And

I. Nigeria Copyright Commission

2. Director General, Nigeria Copyright Commission

3. Mr. Amodu Augustine Alewu

(Asst. Dir. Nigeria Copyright Commission)

4. Mr. Henry Njoku

5. Inspector-General Of Police- Respondents

It is for the Copyright Commission to justify the denial of an owner, assignee of exclusive licensee of its approval as a col­lecting society in the light of the constitutional prerogatives attached to the enjoyment of property rights. It is not for the Copyright Commission to hound persons, corporate or other­wise, that are legitimately, and constitutionally protecting their proprietary interest.

So held the Federal High Court, holden at Lagos in an unani­mous leading judgment by His Lordship, Justice Charles Efanga Archibong, concurring while allowing the appellants’ appeal. The facts are as contained in the body of the judgment

This is a motion brought for the enforcement of the funda­mental right of applicants.

The applicants in their motion paper of January 29,2008 filed same day pray for the following refiefs:-

• A declaration that the continued threats of detention, harass­ment and intimidation by the respondents is unlawful, unwar­ranted and in breach of their fundamental rights as specified in the statement in support filed by the applicants .

• An order that the 2 to 5 applicants shall not be arrested or further arrested or detained by the respondents or any of its officers or agents unless it is for the purposed of taking them to court within a reasonable time and unless a proper and com­plete investigation has been carried out and the applicants are reasorably suspected to guilty of a criminal offence.

The 1st applicant seek a further relief of:

Compensation against the respondents (jointly and severally) in the sum of N20,000,000.00 for the unlawful disruption and interfernce in,its business of exploitation of its property.

The 2na and 5th  applicants seek further relief:

An order that the respondents apologise to the 2nd and 5th applicants for the unlawful arrest and/or detention. Compensation in the sum of N20,000,ooo.oo against the respondent (jointly and severally) only for the unlawful arrest and detention.

The affidavit in support deposed by the 4th applicant, licensing Officer of the 1 applicant avers in:

Paragraph 3

That 1st applicant in the Musical Copyright Society of Nigeria Ltd. (GTE and is a company registered in Nigeria for the protec­tion of intellectual property rights and the economic and more (sic) interest of its members, the 2n applicant is Mr. M. Mayo Ayilaran and is the Chief Executive of the 1st applicant, the 3r applicant is Mr. OritsWiIIiki and is the Chairman of the 1st applicant, that I am the 4th applicant and the 5th applicant is Mr. Halim Mohammed and is the Communication Manager of the 1st applicant

Paragraph 10

That lst applicant has since from its incorporation in 1984 and through the various deeds assignment of copyright from Nigeria composer, authors, publishers, directors and produce of musical and audio-visual works, the reciprocal representa­tion agreements between it and the PRS, MCPS, and other sister organisations, been an owner, assignee and exclusive licensee of copyright in a large repertoire of musical and related audiovisual works duly ceded to it.

Paragraph 11

The 1st applicant has been managing and protecting its intel­lectual property interest in accordance with the provisions of existing Copyright laws particularly first, the Copyright Decree 61 of 1970 and the Copyright Act (Cap. 68 Laws of the Federation) as amended and generally in accordance with the Constitution of the Federal Republic of Nigeria.

Paragraph 12

That some of the right attaching to the intellectual property (to which copyright resides in the 1st applicant) acquired by 1st applicant is transferred to it by several composers, authors, publishers, directors, and producers of musical and related audio-visual works include but are not limited to the following:­Public performance right ( ensuring that no unauthorised per­son performs the works in public, communicates the work to the public or broadcast the work by any means of transmission or streaming).

Mechanical rights (ensuring that no unauthorised person records, reproduces, duplicates, imports, distributes or sells the works to the public)

Ensuring that no unauthorized person lends rents or hires the works to other persons.

Trading in the copyright in the work byway of granting permis­sion or license to anyone who wants to exploit the works in any of the aforementioned ways for business or profit motives for a fee or consideration.

What acts of infringement or threatened violations of fundamental rights inform this application? .

The applicants in the Affidavit of Support avers as follows:

Paragraph 24

That sometime in May 1999, the 1st respondent and its agents invaded the offices of the applicant then located at 1st floor, 565, Ikorodu Road, Ketu, Lagos, whereby they seized several files, documents and working instruments of the 1st applicant and took away the 4th applicant without instruments of the 1st applicant and took away the 4th applicant without any charge or warrant of arrest

Paragraph 25

That sometime in June 1999s\:lst respondent finally proffered formal charges against the 1 , 2n and 4th applicants for alleged operations and running of a collecting society without the 1st  respondent’s approval in Charge No. FHC/L/43C/99.

Paragraph 26

That after several adjournments at the instance of the prosecu­tors on behalf of the 1st respondent spanning over a period of three years, which subjected the 1st, 2net and 4th applicant to intimidation, harassment, public odium and huge financial losses, the Court presided over by Justice AAB. Gumel on June 18,2002 finally struck out the charges for want of diligent prose­cution. Attached herewith and marked Exhibit LB3 is the enrolled order of the honourable court

Paragraph 27

That immediately the aforesaid charges were struck out in 2002 the 1st respondent filed fresh charges against the 1st / 2nd and 4th applicants for alleged 0perating and running of a collecting society without approval in Charge No. FHC/L/136C/2003.

Paragraph 28

That the charges suffered several adjournments at the instance of the prosecutors on behalf of the 1st respondent before being struck out by Hon. Justice Isaac Iheozor Ejiofor on 17 May, 2004. Attached herewith and marked Exhibit LB 4 is the enrolled order of the honourable court

Paragraph 29

That soon after then striking out of the above mentioned charge, the 1st respondent filed again yet charges on the same allegations with a view to perpetually keep the 1st, 1st, 2nd and 4th applicants and the 1st applicant’s principal officer in perpetual state of fear and intimidation and harassment in Charge No. FHC/L/I43C/04.

Paragraph 30

That following several adjournments again at the instance of the 1st respondent the charges were struck out by Mon. Justice M.L Shaibu of the Federal High Court on March 2n ,2005. Attached herewith and marked Exhibit LLB 5 is the enrolled order of the Honourable Court

Paragraph 31

That in all, the applicants and the 1st applicant’s principal offi­cers were subjected to a period of about six years of fear, intimi­dation, harassment, deprivation of libertinme of liberty, right to own property and loss of huge revenue (cost of hiring solici­tors) by the 1st respondent as a result of these various court actions.

That in order to protect its reoertoire and property interest from being destroyed by the 1St respondent, the 1St’ applicant, made an application to court for an order of certiorari to quash the refusal by the 1st respondent of its application to be approved as a collecting society. The hearing of the certiorari application was severally frustrated by the 1st respondent until the year 2004 when the Court of Appeal in another case,Appeal No. CA/L/498/97 between the applicant and Adeokin Records pronounced on the legal rights and standing of the 1st appli­cant that she had vested property rights in the intellectual property it had acquired as an owner, assignee and exclusive licensee.