The Nigerian Court of Appeal recently ruled3 on the appeal filed by the Musical Copyright Society of Nigeria (the Applicant at the Federal High Court, Lagos Division and Appellant before the Court of Appeal) seeking the enforcement of the Fundamental Rights of its members as provided for under Sections 404 and 445 of the 1999 Constitution.
Notably, Honourable Justice U.I. Ndukwe-Anyanwu who gave the lead judgment observed that it is improper to bring an application in the name of any person other than the person whose right was breached especially since the Appellant was suing on behalf of some other people who had given it the rights to manage their copyrighted works. The court further stated obiter that it is only the owner of the copyright that can sue on the infringement of their right.6 Although this statement was not the ratio decidendi of the court, it is our view that the position adopted by the Court of Appeal is a move in the right direction and it is hoped that more cases with the right set of facts and legal questions would be resolved in this emerging and controversial area of law in Nigeria. This review will briefly examine the position of the law of copyright in Nigeria on the proper party to maintain an action for copyright infringement as well as highlight how other jurisdictions have dealt with the issue.
Summary of the Case
The Appellant, as Plaintiff in the lower court, instituted the action under Order 2 Rules 1, 3 & 4 of the Fundamental Right Enforcement Procedure (F.R.E.P) Rules7 via an ex parte motion seeking leave to bring an application for enforcement of its Fundamental Rights as provided for under Sections 40 and 44 of the 1999 Constitution and an order that if leave was granted, such leave shall operate as a stay of action on the Respondent pending the outcome of the lawsuit. Leave was granted by the lower court vide an order of Court of 30th of April 2008. Subsequently, when the Appellant brought the suit under the Fundamental Human Right Enforcement Procedure (F.R.E.P) Rules, the Respondent challenged the application as incompetent. The application was thereafter dismissed by the Federal High Court as lacking any merit.
The Appellant appealed against this decision and formulated 3 issues for determination by the Court of Appeal:
a) Whether intellectual property is moveable or immovable property protected by the 1999 Nigerian Constitution or the African Charter of Human & Peoples Rights.
b) Whether the Appellant [is required] to be registered or approved by the Respondent as a collecting society before she can exercise her right as owner, assignee or exclusive licensee of copyright in musical works in her repertoire by controlling their use or imposing conditions including demanding and collecting fees therefore.
c) Whether sections 178 & 399 of the Copyright Act 2004 or the respondent’s actions violate appellant’s fundamental rights under the 1999 Nigerian Constitution or the African Charter of Human & Peoples Rights.
The Respondent raised similar issues as the Appellant but also included an additional issue challenging the procedure adopted by the Appellant in instituting the action as the wrong procedure. Respondent argued that since the main reliefs sought by the Appellant were declaratory in nature, an action for the enforcement of fundamental rights was misconceived.10
Although a number of interesting issues were raised in this appeal, the Court of Appeal avoided making clear pronouncements on these issues in favour of a decision that the appeal was incompetent having been brought under the wrong procedure. Since the initial action brought before the Federal High Court was instituted under the wrong procedure, the subsequent appeal was unavoidably afflicted by this fundamental error and the Court of Appeal lacked the requisite jurisdiction to delve into the other issues raised. These other issues include: the question whether copyright as a subject matter was contemplated under the 1999 constitution as moveable or immovable property subject to compulsory acquisition; whether the Appellant must be licensed by the Respondent prior to enjoying the rights assigned to it by members;11 whether sections 17 and 39 of the Copyright Act violated the Appellant’s fundamental rights to freedom of association under section 40 and from compulsory acquisition under section 44 of the Constitution and whether section 17 of the Copyright Act operates as a qualification to section 44 of the constitution as a provision relating to the limitation of actions.12 Particularly of interest to this paper is the argument advanced by the Respondent that the Appellant was merely an agent licensed by its members to manage their copyrighted works for a limited period and not actually the recipient of substantial rights. Consequently, no proprietary rights were conferred on the Appellant protectable under section 44 of the Constitution. In addressing this argument, the Court of Appeal observed that the main claim in the motion was not for Fundamental Rights per se, but for certain declaratory reliefs. Honourable Justice U.I. Ndukwe-Anyanwu stated as follows: “the main reliefs sought as can be gleaned from the motion are on the Rights of the Appellant to Collect Royalties from the supposed artistes”. “By virtue of O1 R2(1) of the 1979 Fundamental Human Right Enforcement Procedure (F.R.E.P), it is the person whose Fundamental Right has been, is being breached or likely to be infringed that has the locus standi to challenge such infringement. Thus to invoke the jurisdiction of the Court for the protection of any of the Fundamental Rights guaranteed under Chapter IV of the 1999 Constitution, the Applicant must be the actual person whose right has been infringed….The Appellant was suing on behalf of some other people who had given him rights to manage their Copyrights. It is, therefore, improper in law to file an application in the name of any person other than that of the person whose right was breached… The Appellant in his Motion on Notice stated that the Applicant has a right as owner, assignee and exclusive licensee of various authors and entities. This means that the Appellant is not the owner of the Copyright and therefore cannot sue for infringement on those rights. It is only the owners of the Copyright that can sue on the infringement of their Right.”13 Therefore the suit brought under the Fundamental Human Right (Enforcement Procedure) Rules was held to have been brought under the wrong procedure as it concerns the Appellant