PROMOTING MUSICAL CREATION IN NIGERIA THROUGH EQUITABLE INTELLECTUAL PROPERTY RIGHTS UNDER THE COPYRIGHT ACT 2022: ACHIEVING A WIN-WIN FOR MUSICAL ARTISTS AND RECORD LABELS

INTRODUCTION

The role of robust and balanced copyright legislation in the promotion of intellectual creation cannot be overemphasized as it helps in the establishment of a fair and effective copyright regime. Prior to 2022, the copyright regime in Nigeria was not comprehensive enough to guarantee a protection to all stakeholders in the intellectual creation space. The quest for a balance gained renewed recognition with the enactment of Copyright Act 2022 (the “Act”), which modernizes the legal framework by strengthening protection for creators, addressing challenges in the intellectual digital space, and ensuring that creators such as musical artists and record labels receive just rewards for their works while still allowing reasonable and fair access to the public to use the creative contents.

As has always been, the Act provides automatic protection over the musical works of artists that meet the originality and fixation requirements set by the law[1]. By this, the artists who are deemed as authors of their works are conferred with the exclusive rights such as the right to produce, reproduce, publish, broadcast, communicate, perform and distribute for commercial purposes[2]. The artist is also conferred with moral right to claim authorship of the work and to insist that his name is always indicated in connection with the work, while restricting the distortion, mutilation or modification of the work where it will be prejudicial to his honour and reputation[3].

The Act introduces several significant provisions aimed at modernizing and expanding the scope of protection over creative works of artists, particularly in response to technological advancement and evolving modes of exploitation which have broadened the scope of copyright recognition. To begin with, the Act lowered the threshold for copyright protection by replacing the former requirement of “sufficient effort”[4] as used in the repealed Copyright Act of 2004, with a less stringent standard of “some effort.”[5] This is a deliberate shift towards inclusivity, ensuring that a wider range of creative outputs, especially those in the digital or cyberspace, are able to qualify for recognition and protection. In practical terms, this would mean that emerging creators, whose niches are on the cyberspace, would not be excluded from copyright protection simply because of the medium of expression of their musical work.

RECORD LABEL AND MUSIC ARTIST RELATIONSHIP

The music industry has become highly competitive such that the importance of record labels cannot be overemphasized due to the intermediary role they play in artists’ branding, talent promotion and management to enhance artists’ market value and their music sponsorship. However, as much as it is desirable to operate under a record label, it is pertinent to ensure that the contract upon which the relationship with the record label is built is not arm-twisting, overreaching and prejudicial to the artists’ development.

Sometimes, music artists enter into contractual relationships with record labels based on trust and desperation for stardom. In such situations, they are likely to sign a contract which they will later find to be unfavourable in the long run. Notwithstanding the unfavourable nature of the terms, the artist will be bound by the contract. This is on the principle of pacta sunt servanda which is to the effect that parties are bound by the terms of their agreement, but this is to the extent that the principal elements of a valid contract are present therein without any vitiating element such as fraud, illegality, incapacity, misrepresentation, mistake of fact, duress or undue influence. It is important to note that it is only the court that has the power to void such contract upon the successful proof of any of the above-mentioned vitiating elements by the party alleging, in this instance, the artist. This is why it is important that both sides, especially the artist, should have a legal representative whose responsibility would be to review and advise on the legal implication of the terms of every contract before execution. It will also be prudent on the part of the record labels to encourage their artists to have legal representatives independent of that of the record label especially where the artist is unlettered, so as to shut the door against a possible plea of non est factum which has become prevalent among artists in the event of dispute in the long run.

Just like every other industry, the music industry has its peculiar trade customs and terms which are fundamental in contracts within the industry. So, for a contract between an artist and record label to be validly binding, the parties must be ad idem on the fundamental terms which form the substratum of such contract. This principle received a judicial affirmation in the case of U.B.N. Ltd. v. Sax (Nig.) Ltd[6]. In the music industry, such clauses as ownership right over the masters, publishing rights, royalties sharing ratio, accounting period, recoupment of production cost, audit rights (optional), licensing rights and assignments, creative control, marketing and promotion obligations, termination and survival clauses, and dispute resolution mechanism, are very crucial for an inclusive and balanced contractual relationship between artists and record labels.

Pertinently, record labels, like other businesses, require funds to thrive. It is morally expected that record labels should recoup their investments in the artists, but it should be in accordance with the terms of the contract. To reduce friction and unnecessary disputes with artists, record labels are enjoined to be transparent in their dealings with the artists and ensure accountability in respect of the royalties and other forms of earnings received on account of the musical works of artists.

With this in place, the mutual suspicion and tension that often result in hostile abandonment of contracts by artists will reduce drastically, thereby promoting equitable and win-win relationships between musical artists and their record labels. This is not to say that conflict will be eliminated entirely, however, even where it exists, the terms of the parties’ contract as well as other factors where applicable will be sufficient in determining the parties’ rights and claims.

DISPUTE RESOLUTION MECHANISM

The Act has a dispute resolution mechanism which the parties can exploit in the event of dispute. It made provision for an alternative dispute resolution mechanism through the Dispute Resolution Panel (“DRP”) to be set up by the Nigerian Copyright Commission (the “Commission”), whose duty it shall be to handle disputes arising from the payment of royalties, terms of a license and any other dispute arising from the rights recognized under the Act[7]. During the subsistence of the repealed Copyright Act of 2004, the Commission had previously issued the Copyright (Dispute Resolution Panel) Rules 2007 constituting the DRP which it deploys to settle copyright related disputes. However, with the enactment of the Copyright Act of 2022, the DRP has become statutorily enshrined in the Copyright Act, but its decisions are not final as the Act permits a party who is dissatisfied with a decision of the DRP to apply to the court for a review of the decision[8]. Nevertheless, it does appear that codification of the DRP in the Copyright Act envisages that where it is set up by the Commission pursuant to the Act[9], the forum has to be exhausted by the parties before approaching the court.

In that circumstance, the DRP becomes the arbiter of first instance only in respect of those copyright subjects as are specifically mentioned in the Act[10]. All other copyright claims outside those specific items can be submitted to the court as arbiter of first instance. This validly conforms with the principle of law as captured in the Latin maxim “Expressio unius est exclusion alterius” which simply means that the express mention of a thing excludes others that are not mentioned. Notably, the parties can exclude the applicability of DRP by designating a dispute resolution mechanism of their choice. The Act made an express provision in this regard stating that parties are at liberty to designate arbitration or any other mode as their preferred dispute resolution mechanism[11], and they will be bound accordingly. Also, where the parties fail to designate an ADR mechanism for the purpose of resolving their disputes, the Federal High Court will become the appropriate forum with jurisdictional competence to entertain any such dispute.

Meanwhile, it will be necessary to distinguish between a copyright claim in respect of a musical work and a claim arising from a music contract between the artist and the record label or any third party. While the former is exclusively within the jurisdiction of the Federal High Court[12], the latter, being a simple contract, is within the jurisdiction of State High Courts and High Court of the Federal Capital Territory as the case may be[13], subject to any arbitration agreement between the parties on dispute resolution. For instance, where there is a dispute over copyright infringement with respect to licensing, assignment, publishing, production, reproduction, performance, royalties et cetera, it is the Federal High Court that has the jurisdiction to entertain the complaint. On the other hand, if the dispute arises from a contractual claim or breach of terms of music contract, the appropriate forum to pursue the cause is the State High Court or High Court of the Federal Capital Territory. In essence, where there is a breach or a dispute arising from a music contract between an artist and a record label, the aggrieved party is enjoined to approach the State High Court of the FCT High Court unless the parties’ contract designated arbitration as the dispute resolution mechanism, in which circumstance, such dispute should be referred to arbitration.

CONCLUSION

Music artists and record labels complement each other, so there is need for a harmonious business relationship to exist, and the best way to achieve it is through a valid and enforceable contract that comprehensively and unambiguously outlines the rights and obligations of the parties thereto. The Copyright Act has made adequate provisions that protect the rights of musical artists, with room for record labels to recoup their investments, which in essence constitutes a win-win for musical artists and record labels.