Court Dismisses MCSN Appeal Against NCC

28 October 2016

An Appeal Court sitting in Lagos has dismissed the appeal filed by the Musical Copyright Society of Nigeria LTD/GTE against the Nigerian Copyright Commission (NCC), challenging an earlier judgment of the Federal High Court, Lagos, which held that the provisions of the Copyright Act are not unconstitutional and do not violate the fundamental right of MCSN.

The Appeal No: CA/L/575/2009 MCSN V Nigerian Copyright Commission, was determined on October 21, 2016.

It will be recalled that following the refusal of NCC to approve MCSN as a collecting society, MCSN filed different cases against the Commission, claiming that they do not require an approval from the Commission to carry on the duties of a collecting society, while in another case they sought orders of the court to compel the Commission to approve them as a collecting society.

In 2008, MCSN instituted an action against the Commission in suit No FHC/L/CS/478/2008 MCSN Vs NCC at the Federal High Court Lagos, seeking the following reliefs:

  1. A declaration that Section 17 and Section 39 of the Copyright Act 2004 are unconstitutional in so far as they circumscribe the Applicant’s Fundamental right as guaranteed under Section 40 and Section 44 of the Constitution.

  2. A declaration that the Applicant has rights as owners, assignee and exclusive licensee of various authors and entitled to exploit and enjoy her properties in the works and that these rights ought not to be abrogated, disturbed or frustrated except by just laws which offer just compensation and are in accord with section 44 of the constitution.

  3. A declaration that S. 17 and S. 39 (formerly S. 15A and 32B) of the Copyright Act 2004 are unconstitutional null and void in so far as they seek to abrogate rights of property that have been acquired or have accrued before the promulgation of the said section of the  Copyright Act.

  4. A declaration that the Applicant does not require a license from the Respondent in order to carry on their business in the exploitation of rights validly and legitimately acquired by the Applicant.

  5. A declaration that S 17 and S 39 of the Copyright Act 2004 are contrary to the provision of Articles 10 and 14 of the African Charter on Human and People Right Ratification and Enforcement Act Cap A9 Laws of the Federation 2004 made enforceable by S12(1) of the 1999 Constitution of the Republic of Nigeria 1999.

After hearing the case, the Federal High Court Lagos presided over by Honourable Justice I. M. Sani delivered judgment on April 3, 2009. In the judgment the court stated that ‘I am of the view that the fundamental question to be asked is whether the provision of section 17 and 39 of the Copyright Act 2004 circumscribes the Applicant’s fundamental right as guaranteed under Section 40 and Section 44 of the Constitution’.

The court held that the requirement on MCSN to obtain a license before operating does not amount to compulsory acquisition of its property. The court delivered judgment in favour of NCC and dismissed the case.

It was following the above decision that MCSN filed this present appeal. However, In a unanimous judgment of the Court of Appeal Lagos delivered by Anyanwu J.C.A, on October 21, 2016, the Court of Appeal dismissed the appeal. The court held that provisions of the Copyright Act does not violate any constitutional rights reserved for MCSN. It also held that the suit of MCSN was incompetent. The court dismissed the appeal and awarded a cost of fifty thousand naira (N50, 000) in favour of the Nigerian Copyright Commission.

With this judgment, the Court of Appeal has laid to rest the contention on who between COSON and MCSN should carry out the functions of collecting society for the music industry. With this judgment, the Court of Appeal has also declared it illegal for MCSN to carry on the functions of a collecting society without the approval of the NCC. 

Mary A. Adegbile

For: Director- General

25/ 09/16

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