Copyright Protection and the Music Industry in Nigeria Introduction in Africa, Music Is an Integral Part of the Culture of the People
Total Page：16
File Type：pdf, Size：1020Kb
Copyright Protection And The Music Industry In Nigeria Introduction In Africa, music is an integral part of the culture of the people. In fact, the curious beauty about African music is that it uplifts even as it tells a sad story. Such is the level in which music is revered in Africa. Over the years, the continent has produced musicians and artists who have gone ahead to influence generations both within and outside the continent, creating styles such as afrobeat which has gone on to contribute immensely to the world. The economic importance of music industry has been amply documented. The music industry is one of the fastest growing export sectors of the global service economy. Being a creative expression and related intangible assets, copyright law plays a critical role in determining its performance. The export potential of music is already recognized, in addition to its complementary links countries, and its role in the promotion of national culture. The copyright is one of the essential institutional mechanisms, which has helped facilitate the creation and dissemination of musical works through modern business enterprises, by providing a framework to manage the problems arising from the joint consumption and imperfect excludability of the works. It is part of the institutional framework that helps define a marketable product as well as reliable income flows (through royalties and related income). Originality and creativity are two integral parts in the production of music. An artiste is expected to bring forth his music from within whilst getting a message across or making people dance and as such, he is to be rewarded for his creativity. The protection of musical works is an aspect of copyright. This guarantees the owner of a musical work the control and management of his work, alienating everybody else from using the music without his authorization. In this article, we highlight the current developments in the music industry, the rise of musical covers in Nigeria, the sampling of songs and lyrical content which has led to accusations of copyright violations, and the rights of the author(s) of a musical work. An Overview of the Nigerian Music Industry The Nigerian music industry have witnessed great impetus and its vibrancy has been widely reported within the African continent and beyond. This vibrancy is also reflected in the recognition of works produced by Nigerian artists on the international scene. For instance, Femi Kuti won the ‘’African Artist of the Year’’ at KORA Music Award in 1999 and has since received three Grammy Award nominations till date. The feat at KORA was repeated by P Square who won the ‘’African Artist of the Year’’ at the 2010 edition. 2Face Idibia has been a multiple award winner from MOBO Awards to MTV (MAMA) Awards capping it with ‘’Best Selling African Artist’’ at the World Music Awards in 2008 and ‘’Best African Artist of the year’’ in 2011 (with D'Banj). The 2014 MTV (MAMA) awards also witnessed a lot of recognition for Nigerian artists with Davido capping ‘’Artiste of the year’’ and ‘’Best Male Artiste’ and Tiwa Savage as ‘’Best Female Artist’’ among other Nigerian awardees. The music scene have also witnessed a rapid increase in terms of international collaborations within the last couple of years ranging from studio to stage as well as business alliance. Notable artists that has graced the Nigerian stage with home-grown artists in the past includes R Kelly, Joe, Beyonce, 50 Cent, Missy Elliot, Jay-Z, Sean Paul, Akon, Fat Joe, Snoop Dogg, Wyclef Jean, Kirk Franklin, Chris Brown, Rihanna, among others. The music industry takes care of all aspects of the music business, has different organizations, and outfits working together for a common goal. These organizations include the artists, composers, managers/talent developers, the media, live music promoters and distributors among others. Copyright in the Music Industry Copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. It is a form of intellectual property, applicable to certain forms of creative work. Copyrights are considered “territorial rights”, which means that they do not extend beyond the territory of a specific jurisdiction. A work of copyright in Nigeria by virtue of Section 1(1) of Copyright Act embraces literary, musical and artistic work, cinematograph films, sound recordings and broadcasts. The requirement for copyright in Nigeria as stated in section 1(2) of the Copyright Act is that sufficient effort must be expended towards the creation of the work to bestow upon it an original character. Furthermore, the work must be fixated or recorded on a medium of storage from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of an appropriate machine or device. Therefore, for a musical work to enjoy protection under the Copyrights Act, the process of its creation must have been deliberate, the musical work must be original, and the work must be recorded on a medium of storage such as compact discs, DVDs, Bluray discs, or even cloud storage solutions. The recording itself is considered a separate copyright work entitled to protection as a sound recording under the Copyrights Act. Thus, two species of copyright may inhere in a single musical work, that is, copyright in the musical composition on the one hand, and copyright in the sound recording on the other hand. Copyrights in a musical work may be owned by just one author, in which case, the author must have been the lyricist, the instrumentalist as well as the sound recorder. However, this is rarely the case; more often than not, copyright in a musical work would be attributable to different authors based on the nature of their respective contributions to the final product. Therefore, the lyricist will own the copyright in the lyrics of the song as a literary work, the instrumentalist will own the copyright in the melody accompanying the lyrics as a musical work, while the record label or the recording studio would own the copyright in the sound recording. It is also possible for more than one author to jointly own a single specie of copyright where the work is collaboratively produced. By implication of the delineation of copyrights in a musical work, two revenue streams can be explored by the authors involved. The artists or creatives may assign or license the work to a publisher for profit, while the record label or recording studio may distribute copies of the recording or authorise its public performance, also for profit. These revenue streams are made possible by virtue of the exclusive rights of the author. The concept of exclusivity is at the core of the author’s bundle of rights. Exclusivity allows the author to exercise particular rights reserved by the Copyrights Act for the author’s sole benefit. However, the author may choose to license the work, thereby permitting a licensee to exercise some of the author’s exclusive rights within the precincts of the licence. Alternatively, the author may transfer the proprietary interest in the musical work by assignment, which would effectively terminate the author’s exclusive rights in favour of the assignee of the copyright. Section 6(1)(a) of the Copyrights Act recognises the exclusive right of the author to; reproduce the musical work; publish the musical work; perform the musical work in public; produce, reproduce, perform or publish any translation of the musical work; distribute copies of the musical work by way of rental, lease, hire, loan or similar arrangement; broadcast or communicate the musical work to the public by a loudspeaker or any other similar device; and make any adaptation of the musical work. As the first owner of the copyright in a musical work, the music artist or author is in a position to determine how the musical work would be initially commercialized. Thus, the author may for instance assign all rights in the work to a commercial music purveyor, or the author may choose to only grant limited licences, thereby retaining control over the musical work. However, where the author grants a mechanical license to a record company, the copyright in the resulting sound recording would belong to the record company and the author may or may not have limited control over the resulting sound recording depending on the terms of the recording contract. To retain full control of the musical work, the artist would, in addition to authoring the musical work, also record the same. The artist may then negotiate a distribution deal with an established record label who would take on the responsibility of marketing and promoting the work in return for a share of whatever profit is derived from the work. On the other hand, the author of a sound recording enjoys the exclusive rights stipulated by Section 7(1)(a-b) of the Copyrights Act, that is; the right to control in Nigeria the direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording either in its original form or in any form recognisably derived from the original; and the right to control the distribution to the public, for commercial purposes, of copies of the work by way of rental, lease, hire, loan or similar arrangement. The record company derives its authority to make a mechanical recording of the musical work either directly from the artist or from the publisher authorised by the artist. The initial or first recording of the musical work is known as the Master Recording, and it is from this first recording that all other copies trace their origin.