On Friday 21st October 2016, the Court of Appeal sitting in Lagos dismissed an appeal filed by Musical Copyright Society of Nigeria LTD/GTE (MCSN) in Appeal No: CA/ .L/575/2009 MCSN V Nigerian Copyright Commission, where they challenged the judgment of the Federal High Court Lagos which held that that provisions of the Copyright Act are not unconstitutional and does not violate the fundamental right of MCSN.

It will be recalled, that following the refusal of Nigerian Copyright Commission to approve MCSN as a collecting society, MCSN filled different cases against the Commission. 

In some of the cases, MCSN claimed that they do not require an approval from the Commission to carry on the duties of a collecting society while in others they sought orders of 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. In the action they claimed the following relieves:

I. 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.

II. A declaration that the Applicant has right 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 offers just compensation and are in accord with section 44 of the constitution.

III. 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.

IV. 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

V. 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 the 3rd day of April 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 circumscribe 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 Nigerian Copyright Commission and dismissed the case.

It was following the above decision that MCSN filed this present appeal. In a unanimous judgment of the Court of Appeal Lagos delivered on 21st October 2016, the Court of Appeal dismissed the appeal. In the lead judgment delivered by Anyanwu J.C.A, 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 Nigerian Copyright Commission.

It must be noted that this is the flagship case of MCSN where they sought an order of court to declare Section 17 and 39 of the Copyright Act unconstitutional. These sections requires them to obtain an approval from Nigerian Copyright Commission before carrying on their business and provides that it is a crime punishable by terms of imprisonment for any organisation like MCSN to carry on such business without obtaining an approval from the Commission. With this judgment the Court of Appeal has once again laid to rest and declared it illegal for MCSN to carry on the functions of a collecting society without the approval of the Nigerian Copyright Commission.

Obi Ezeilo
Director/Zonal Manager
Nigerian Copyright Commission
Lagos office