⦿ CASE SUMMARY OF:
Musical Copyright Society of Nigeria Limited/gte v. Compact Disc Technology Limited & Ors (2018) – SC
by NSA PaulPipAr
– Retrospectiveness of a law;
1. Musical Copyright Society Of Nigeria (LIMITED/GTE) (MCSN)
1. Compact Disc Technology Limited;
2. Nu Metro Home Entertainment (West Africa) Limited;
3. Nu Metro Retail Nigeria Limited
⦿ LEAD JUDGEMENT DELIVERED BY:
Mary Ukaego Peter-Odili, J.S.C.
* FOR THE APPELLANT
– D. A. Awosika, Esq.
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
The appellant was the plaintiff in the trial High Court in a suit initiated with a Writ of Summons dated the 2nd August, 2007 in an action against the now respondents as defendants in the Court of trial. The reliefs of the plaintiff are set down hereunder and thus:
a) A declaration that the acts of the defendants without authority or permission of the plaintiff of importing, recording, reproducing, distributing, offering for sale, communicating to the public or publicly performing or playing the said musical works on audio and video devices such as tapes or video compact disc and/or similar devices at its stores in an infringement of the plaintiffs copyright as guaranteed by the Copyright Act 1988 as amended.
b) An order of perpetual injunction restraining the defendants by themselves, assigns, agents and servants from the further importing, reproducing, distributing, offering for sale, publicly performing/playing and communicating to the public any of the said works or any works for that matter from the plaintiffs repertoire without the plaintiffs authorization or permission.
c) An order of perpetual injunction directing the defendants jointly or severally whether themselves assigns, agents and servants or howsoever from further infringing or continuing to infringe the copyright in the audio or audio visual musical works contained in the plaintiffs repertoire.
d) An order for delivery up to the plaintiff of all copies of said musical works on Audio and video devices such a tapes, video compact disc and or similar devices of musical works listed in paragraphs 11, 12 and 15 of the Statement of Claim.
e) Special damages in the sum of N250,000,000.00.
f) General damages in the sum of N100,000,000.00
The respondents/defendants filed a motion on notice by way of preliminary objection dated the 6th of February, 2008 (pages 281-287 of the records of appeal) seeking the following reliefs:
a. An order dismissing the suit on the ground that the plaintiff/respondent as an alleged owner, assignee and exclusive licensee lacks the locus standi, under Section 15(a) and Section 32 of the Copyright Act as amended 1999 to commence and plead the relief sought in the suit.
b. AND FOR SUCH FURTHER ORDER or other order as this Honourable Court may deem fit to make in the circumstance of this matter. The learned trial judge dismissed the motion on notice and the respondents being dissatisfied with the decision of the trial Court appealed to the Court of Appeal which in turn set aside the decision of the trial Court and the appellant aggrieved has approached this Court.
1. Whether or not by virtue of the provisions of Sections 16(1), 17, 19 and 39 (1) & (3) of the Copyright Act Cap C.28, Laws of the Federation of Nigeria 2004 the appellant can lawfully commence infringement proceedings against the respondents in respect of the musical works and related audio visual available and broadcast within the territory of the Federal Republic of Nigeria.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. That decision [Adeokin Records & Anor v. Musical Copyright Society of Nigeria (Ltd/GTE)] impels this Court to hold that the exclusive licence of the copyright musical works which forms the basis of the suit at the trial Court was transferred to the appellant since 1986 and 1990 respectively while the provisions of the Copyright Act, 2004 came into force on the 10th day of May, 1999 and so the same cannot be said to affect the rights already transferred long before its commencement date.
Therefore, just as this Court held in Adeokin Records & Anor v. Musical Copyright Society of Nigeria (supra) on 13/7/18 the matter is properly before the trial Federal High Court and since the Court of Appeal went outside the clear situation, this Court is best suited to intervene and hold that the position taken by the Court below is not the proper stand as supported by the facts on ground in context with the necessary statutory provisions. The conclusion is that the appeal is allowed and decision of the Court of Appeal set aside with the restoration of the decision of the trial High Court.
ii. Based on its pleadings, the appellant acquired its copyrights in the various musical works in issue, as far protected. The acquisition of the rights preceded the enactment of the copyright Act and the establishment of the Nigerian Copyright Commission. The respondents were unable to satisfy this Court that the amendment of Section 15 of the Copyright Act by the Copyright (Amendment) Decree No. 42 of 1999 which introduced Section 15A (now Section 17) of the Copyright Act Cap 28 LFN 2004, had retrospective application. This is particularly important, as the commencement date of the amendment is 10th May, 1999.
Section 6(1) and 8(1) & (2) of the Copyright Act;
Section 44 of the Constitution of the Federal Republic of Nigeria 1999;
⦿ SOME PROVISION(S)
Section 16(1) of the Act provides to the effect that: “Subject to this Act, infringement of copyright shall be actionable at the suit of the owner, assignee or an exclusive licencee as the case may be in the Federal High Court exercising jurisdiction in the place where the infringement occurred, and in any action for such infringement, all such relief by way of damages, injunction, accounts or otherwise shall be available to the plaintiff as it is available in any corresponding proceedings in respect of infringement of other proprietary rights”.
Section 17 of the Act provides that: “Notwithstanding the provisions of this Act or any other law, no action for infringement of copyright or any right under this Act shall be commenced or maintained by any person – a) Carrying on the business of negotiating and granting of licence; b) Collecting and distribution royalties in respect of Copyright works or representing more than fifty owners of copyright in any category or works protected by this Act; Unless it is approved under Section 39 of this Act to operate as a Collecting Society or is otherwise issued a certificate of exemption by the Commission”.
Section 39 of the Act provides that: “(1) A Collecting Society may be formed in respect of any one or more rights of Copyright owners for the benefit of such owners and the society may apply to the Commission for approval to operate as a Collecting Society for the purpose of this Act. (2) The Commission may approve of a Society if it is satisfied that; a) It is incorporated as a Company Limited by Guarantee; b) Its objects are to carry out the general duty of negotiating and granting copyright licence and collecting royalties on behalf of copyright owners and distributing same to them; c) It represents the substantial numbers of owners of copyright in any category of works protected by this Act, in this paragraph of this subsection, Owners of Copyright’ includes owners of performer’s rights; d) It complies with the terms and conditions prescribed by regulations made by the Commission under this section”.
In defining a Collecting Society, Section 39 (8) of the Act defines same as: “An association of Copyright owners which has as its principal objectives the negotiating and granting of licences, Collecting and distributing of royalties in respect of Copyright works”.
The definition of assignment of copyright and exclusive licence is well stated in Halsbury’s Laws of England, 4th Edition, 2006 re-issue Lexis/Nexis Butterworth on page 122, paragraph 166 thus: – “A legal assignment of Copyright or any part of it, vests the rights assigned [in] the assignee so that he becomes the owner and may take proceedings against persons who infringe or who have infringed it”. In the same vein my Lords, its paragraph 176 states in relation to an Exclusive Licensee that: “An Exclusive Licence means a licence in writing signed by or on behalf of the Copyright owner, authorizing the license to the exclusion of all other persons including the person granting the license to exercise a right which would otherwise be exercisable exclusively by the copyright owner. The licensee under an exclusive Licence has the same rights against a successor in title who is bound by the Licence as he has against the person granting the Licence. An Exclusive licencee may bring proceedings for infringement in the same way as an assignee”.
⦿ RELEVANT CASE(S)
Ojokolobo & Ors v Alamu & Ors (1987) 2 NSCC 991 wherein it was held per Karibi-Whyte, JSC thus: “the presumption of retrospective is displaced by the provisions of a commencement date which is a future date”.
Afolabi v Governor of Oyo State (1985) 16 NSCC (Pt.2) Vol.16, page 11512 as follows: – “A law is said to have retrospective effect when the commencement date is earlier in point of time than the date of commencement, for example, Tribunal of Inquiry (Validation etc) Decree NO.18 of 1977 which was considered by this Court in the case of Uwaifo v. A.G. Bendel State & Ors (1982) 13 NSCC 221 at 232, was dated the 18th day of March, 1977 but therein stated specifically that it shall be “deemed to have come into effect on 29th July, 1975”.
Ojokolobo v. Alamu (1987)3 NWLR (Pt.61) 377 @ 402 F-N, where this Court held, inter alia: “There is the presumption against intending justice (sic) or absurdity. It is one of the guiding canons of construction and interpretation of statutes. Upon this presumption rests the leaning against giving certain statutes retrospective operation. Generally, statutes are construed as operating only in cases or on facts which come into existence after the statutes were passed unless a retrospective effect is clearly intended. It is a fundamental rule of Nigerian Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act or Law; or arises by necessary and distinct implication.”
⦿ CASE(S) RELATED
Adeokin Records & Anor v Musical Copyright Society of Nigeria (Ltd/GTE);
⦿ NOTABLE DICTA
It is settled that it is the law existing at the time the cause of action arose and not the law at the time the suit was instituted that would govern the suit. – Kekere-Ekun, JSC. MCSN v. Compact (2018)
The summary of the bone of contention between the parties is that the appellant as plaintiff claimed an infringement of its copyright while the respondents as defendants entered a conditional appearance and a statement of defence with counter claim contending that the appellant had not fulfilled a mandatory condition precedent before instituting the subject law suit. That for the appellant to initiate the cause of action at that time, it must possess a valid and subsisting collecting Society’s Licence issued by the Nigerian Copyright Commission (NCC). – Mary Peter-Odili, JSC. MCSN v. Compact (2018)
A Community interpretation of Sections 10, 11, 16, 17 and 39 of the Copyright Act acknowledges five categories of persons who can institute or commence an action relating to infringement of copyright either personally or in a representative capacity. The persons so recognized are an owner, assignee and exclusive licensee of copyright in a work by virtue of Section 16 of the Act, also a person carrying on the business of negotiating, granting of licences, collection and distribution of royalties for not more than fifty (50) owners of copyright in any category of works protected by the Act by virtue of Section 17 of the Act and an association of copyright owners (collecting society) which may be formed upon the satisfaction of the conditions provided in Section 39 of the Act. – Mary Peter-Odili, JSC. MCSN v. Compact (2018)
At any rate, a number of Rules and Principles have been held to apply when determining the meaning of a statute, and these Principles include that: 1. The statute is presumed not to bind the Constitution; 2. Statutes do not operate retrospectively in respect to substantive law (as opposed to procedural law); see translegal.com. 3. They do not interfere with legal rights already vested; 4. They do not oust the jurisdiction of the Courts; and 5. They do not detract from constitutional law or international law. – Augie, JSC. MCSN v. Compact (2018)