The Advantages of Music Publishing for Songwriters Within the Nigerian Regulatory Framework1 1. Introduction the Curtains Are U

Intellectual Property 20th August 2021 Franklin Okoro The Advantages of Music Publishing for Songwriters within the Nigerian Regulatory Framework1 1. Introduction The curtains are usually drawn to behold the performance of a music artist/singer who, in most cases, thrives greatly on the lyrical composition of a songwriter who is backstage and mostly unacknowledged. An artist can also be a songwriter but in this case, reference is being made to an independent songwriter who is not doubling as a vocalist. This article seeks to explore the avenues through which a songwriter not only retains total ownership and control of his original work but can capitalize on certain legitimate channels to preserve ownership and make financial gains through Music Publishing. Music publishing can be explored in two areas: (i) sound recording and, (ii) song-writing. The latter category will be the major focus of this article. 2. Background Music publishing is the act of commercially utilizing the works of songwriters by making these works available to the public. This could be carried out by the writers themselves or by a designated representative or administrator, i.e., a music publisher. The history of music publishing dates back to over a century ago when mechanical methods were developed for printing sheet music, and publishing sheet music used to be a publisher’s primary activity and source of revenue - a situation that has since changed. Due to the technological advancements in the production and consumption of music over the years, music publishers have been forced to change their long-established business model from selling a product (like ‘sheet music’), over which they had complete control, to managing 1 Franklin Okoro, Associate Intern, SPA Ajibade & Co., Abuja, NIGERIA. 1 of 9 copyrights through licences.2 In essence, the practice of publishing sheet music in the past mostly granted the entire copyright of songwriters to music publishers. What is currently obtainable is the granting to the music publisher of rights over a certain percentage of copyright belonging to the writer, which is regulated by either an assignment or a licence agreement between both parties. A music publisher serves as an intermediary between the creator (songwriter) of a work and the public for its use and generation of royalties. The publisher is likely to shepherd the song- writing process through the stages of production from manuscript to performance, recording, and subsequent distribution.3 Generally, a music publisher falls under these categories: (i) a Self-Publisher: this is an individual (songwriter) who is in total control, retains complete ownership over copyrights, acquires all royalties from the publishing of the song-writing, and is responsible for the registration, licensing, and creative matters of their work. (ii) the Administrator: this could be an individual or small company providing services to the songwriter for a small payment and managing all aspects of registration, licensing, and royalty collection processes. Notably, they do not pay advances to the writer nor offer creative services. (iii) the Major Publisher: this category provides administrative services for the highest commission, pays millions in advances to the writer to maintain their market shares, and also provides creative services to the writer. Most big stars align themselves with this category of publishers, e.g., Universal Studios, SONY, BMG, ASCAP, EMI, etc., and in Nigeria, they include Universal Music Nigeria, Replete Publishing, Premier Music, Hypertek Digital and Green Light Music Publishing. The importance of music publishers to a songwriter cannot be overemphasized. They are responsible for: (i) notification or recordation of ownership rights over a song to the appropriate Copyright Commission, (ii) royalty collection from Performing Royalty Organizations or Collecting Societies, (iii) song licensing issued via Performing Royalty Organizations or Collecting Societies, and (iv) general creative matters. 2 See, Economics of Music publishing: Copyright and the Market, available at: http://eprints.bournemouth.ac.uk/30047/1/Economics%20of%20music%20publishing%20rev.pdf, accessed 7th May 2021. 3 Ibid, p. 1. 2 of 9 Subject to an assignment or licence agreement between a music publisher and a songwriter, music publishers are also inclined to exploit the works they represent because they receive a share of the copyright or control over such work. 3. The Legal Framework for Music Publishing in Nigeria For obvious reasons, music publishing falls under the Nigerian Copyright Act4 (the Act). Since Music Publishing Agreements are mostly executed via an assignment or licensing of copyright, they should be drafted and enforced in accordance with the extant copyright laws of a country. Section 1(1) of the Act provides for works eligible for copyright to include; (a) literary works and (b) musical works, within the ambits of which any song-writing could qualify. Section 1(2) goes further to state that literary and musical works would be eligible for copyright, where; (a) sufficient effort has been expended on making the work to give it an original character and (b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device. Section 6(1)(a) of the Act defines the right of a copyright owner in a literary or musical work (i.e., song-writing) to include the exclusive right to control or authorise the doing in Nigeria of any of the following acts amongst others, that is (i) publish the work; (ii) perform the work in public; (iii) produce, reproduce, perform or publish any translation of the work; (iv) distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement; (v) make any adaptation of the work (this involves the music publisher being granted copyright to engage in synchronization deals and licensing T.V commercials, movie production, and pitching company, etc., to adapt its musical compositions to their production or T.V Commercials). Nonetheless, the rights of a copyright owner outlined in Section 6(1)(a) of the Act do not include the right to control the following; (a) the doing of any of the acts mentioned in the said section 6 by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast; (b) the doing of any of the aforesaid acts by way of parody, pastiche, or caricature. Such right to control the doing of the aforementioned acts does not also include; (c) the inclusion in a collection of literary or musical work which includes not more than two excerpts 4 Cap. C28 Laws of the Federation of Nigeria (LFN), 2004. 3 of 9 from the work, if the collection bears a statement that it is designed for educational use and includes an acknowledgement of the title and authorship of the work; (d) the making of not more than three copies of a book (including a pamphlet, sheet music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such a book is not available for sale in Nigeria, as specified in the Second Schedule to the Act. So, despite being a copyright owner of a musical composition, if your work is exploited in line with the above-stated exceptions, it would not be deemed infringed. Section 6(2) of the Act goes further to state that the doing of any of the acts referred to in subsection (1) of the section shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognisably derived from the original. Music publishers are mandated by section 14 of the Act to keep registers of all works in which copyright subsists and produced by them showing the name of the author, the title, year of production, and the quantity of the work produced. This serves as a check and balance on copyrighted works and their original source. 4. Music Copyright and Music Publishing Agreement Music publishing is one of the end products of music copyright as there is no purer form of copyright business than music publishing. Through the assignment or licence of copyright, a songwriter stands a chance to earn an income through music publishing. All music publishing income is earned through the administration, collection, and enforcement of copyright. ‘Publishing income’ is the income flowing from the publication of musical works. This income includes mechanical and digital royalties; sales of sheet music; commissions for new works; licensing songs for subsidiary uses such as film, television and advertisements; licence fees for the public performance; communication to the public; and broadcasting of works.5 It is the granting of a certain percentage or all of the copyright in a work to the music publisher that authorizes the dealing in the songwriter’s work which fosters the profiteering by the songwriter from the income of such usage. This grant is usually reduced to a written contract which is called a Music Publishing Agreement (MPA). A Music Publishing Agreement is a written instrument between a music publisher and a songwriter that dictates the terms and conditions of assigning or licensing of copyright, the share of publishing income, duration of transfer of copyright, and stipulated use of the copyrighted works. A Music Publishing Agreement should also contain the following. 5 Music Business: Music Publishing, Ch.

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