The Nigerian music industry is arguably the most vibrant in Africa, with a reported total revenue of

US$39 million in 2016, projected to rise at a 13.4% Compound Annual Growth Rate to US$73 million
by the year 20211. Although this revenue figure is relatively small compared to more developed
markets outside Africa, the potential for growth is significant. This singular fact has piqued the
interest of major international music conglomerates2 around the world, some of whom have taken
unprecedented strides towards securing a strong market presence in Nigeria’s music industry by
partnering with local record labels and entering recording contracts with a number of popular local
talents3.

With Nigerian music permeating playlists monetization strategy has become even more
across the world, and the incursion of savvy pressing for market players, and so has the
international music merchants into Nigeria’s need to counteract infringing practices which
music marketspace, the production values in undermine the profitability of the music
the local industry have significantly improved, business.
to the benefit of music consumers; but so as
the cost of production, to the disadvantage of Music is the stock-in-trade of the music
the creatives. With this increased cost of business, and in this paper, we look at musical
production, the need for an effective works in the context of copyright protection;

1
PwC, The Business of Entertainment – Harnessing growth opportunities in entertainment, media, arts and lifestyle, October 2017
2 Notably, Universal Music Group and Sony Corporation
3 Notable examples include ‘Odunsi the Engine’ who is signed to Universal Music Nigeria (a subsidiary of Universal Music Group),

‘Wizkid’ signed to RCA Records (a subsidiary of Sony Music) in 2017, ‘Davido’ signed a two-album deal with Sony Music in 2016, Tiwa
Savage and Mr. Eazi both signed to Universal Music Nigeria

www.templars-law.com 1
we highlight the rights of the author(s) of a as well as the sound recorder.
musical work; and we discuss key issues to However, this is rarely the case; more
consider before litigating a case of copyright often than not, copyright in a musical
infringement. work would be attributable to
different authors based on the nature
THE ANATOMY OF A MUSICAL WORK of their respective contributions to
the final product. So, the lyricist will
The Copyrights Act4 defines a musical work as own the copyright in the lyrics of the
any musical composition, irrespective of song as a literary work8, the
musical quality and includes works composed instrumentalist will own the copyright
for musical accompaniment5. Following this in the melody accompanying the lyrics
definition, it may very well be assumed that as a musical work9, while the record
any structured sound would automatically label or the recording studio would
qualify for protection under the Copyrights own the copyright in the sound
Act, however, this is not the case. Section 1(2) recording10. It is also possible for more
of the Copyrights Act goes further to require than one author to jointly own a single
that sufficient effort be expended towards specie of copyright where the work is
the creation of the work to bestow upon it an collaboratively produced in
original character. Furthermore, the work circumstances where the contribution
must be fixated or recorded on a medium of of each author is inseparable from the
storage from which it can be perceived, contribution of the other author or
reproduced or otherwise communicated authors11.
either directly or with the aid of an
appropriate machine or device. By implication of the delineation of
copyrights in a musical work, two
Therefore, for a musical work to enjoy revenue streams can be explored by
protection under the Copyrights Act, the the authors involved. The artists or
process of its creation must have been creatives may assign or license the
deliberate, the musical work must be original, work to a publisher for profit, while
and the work must be recorded on a medium the record label or recording studio
of storage such as compact discs, DVDs, Blu- may distribute copies of the recording
ray discs, or even cloud storage solutions. The or authorise its public performance,
recording itself is considered a separate also for profit. These revenue streams
copyright work entitled to protection as a are made possible by virtue of the
sound recording under the Copyrights Act6. exclusive rights of the author.
Thus, two species of copyright may inhere in a
single musical work, that is, copyright in the THE EXCLUSIVE RIGHTS OF THE AUTHOR
musical composition on the one hand, and
copyright in the sound recording on the other. The concept of exclusivity is at the core of the
author’s bundle of rights. Exclusivity allows
The Author of the Musical Work the author to exercise particular rights
reserved by the Copyrights Act for the
The copyrights in a musical work may author’s sole benefit. However, the author
be owned by just one author7, in may choose to license the work, thereby
which case, the author must have permitting a licensee to exercise some of the
been the lyricist, the instrumentalist, author’s exclusive rights within the precincts

4 Chapter 68, Laws of the Federation of Nigeria, 2004 7 Defined by Section 39(1) of the Copyrights Act as the creator
5
Section 51 of the Copyrights Act of the work
6 A sound recording is defined by Section 51 of the Copyrights 8 Section 1(a) of the Copyrights Act

Act as the first fixation of a sequence of sound capable of 9 Section 1(b) of the Copyrights Act

being perceived aurally and of being reproduced, but does not 10 Section 1(e) of the Copyrights Act

include a soundtrack associated with a cinematograph film 11 Section 39(1) of the Copyrights Act

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of the licence. Alternatively, the author may To retain full control of the musical
transfer the proprietary interest in the musical work, the artist would, in addition to
work by assignment, which would effectively authoring the musical work, also
terminate the author’s exclusive rights in record the same. The artist may then
favour of the assignee of the copyright. This negotiate a distribution deal with an
system of licensing and assignment is integral established record label who would
to any monetization strategy, and the take on the responsibility of
Copyrights Act facilitates a spectrum of marketing and promoting the work in
commercial arrangements by according return for a share of whatever profit is
statutory recognition to the author’s derived from the work.
exclusive rights.
The Exclusive Rights of the Author of
The Exclusive Rights of the Author of a Sound Recording
a Musical Work
The author of a sound recording
Section 6(1)(a) of the Copyrights Act enjoys the exclusive rights stipulated
recognises the exclusive right of the by Section 7(1)(a-b) of the Copyrights
author to; reproduce the musical Act, that is; the right to control in
work; publish the musical work; Nigeria the direct or indirect
perform the musical work in public; reproduction, broadcasting or
produce, reproduce, perform or communication to the public of the
publish any translation of the musical whole or a substantial part of the
work; distribute copies of the musical recording either in its original form or
work by way of rental, lease, hire, loan in any form recognisably derived from
or similar arrangement; broadcast or the original; and the right to control
communicate the musical work to the the distribution to the public, for
public by a loudspeaker or any other commercial purposes, of copies of the
similar device; and make any work by way of rental, lease, hire, loan
adaptation of the musical work. or similar arrangement.

As the first owner of the copyright in a The record company derives its
musical work, the music artist or authority to make a mechanical
author is in a position to determine recording of the musical work either
how the musical work would be directly from the artist or from the
initially commercialized. Thus, the publisher authorised by the artist. The
author may for instance assign all initial or first recording of the musical
rights in the work to a commercial work is known as the Master
music purveyor, or the author may Recording12, and it is from this first
choose to only grant limited licences, recording that all other copies trace
thereby retaining control over the their origin. That said, the Master
musical work. However, where the Recording only retains a symbolic
author grants a mechanical license to value after the first copy of the
a record company, the copyright in recording is made, as all other copies
the resulting sound recording would would be made from copies of the
belong to the record company and the recording already in circulation.
author may or may not have limited
control over the resulting sound Usually, the license agreement
recording depending on the terms of between the sound recorder and the
the recording contract. publisher or artist would guarantee

12For instance, the Master Copy can be transferred to

symbolize a future assignment of the copyright in the sound
recording

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 the artist or publisher a percentage of Many times, the publisher would
the profit made from the sound engage the services of a copyrights
recording. However, the artist would collecting society to effectively
lose control over future distribution monetize all public performance of
the recording, and for this reason, it is the musical work, however where
advisable for the artist to not only there is no music publishing contract
agree a lucrative deal, but to also in place, the author may deal with the
agree an option to purchase the copyrights collecting society directly.
Master Recording in future at a fairly Copyrights collecting societies
negotiated price. undertake a form of collective
administration of copyrights licensed
The Music Publishing Contract or assigned to them by their members
(authors and publishers). They do this
The exclusive rights enjoyed by the by negotiating licenses with persons
author of a musical work and the interested in publicly performing the
author of the resulting sound work such as radio or TV stations,
recording cohesively form the restaurants, or webcasters and they
foundation for commercialization of collect and distribute royalties to the
the musical work. This is because the owners of the copyright.
concept of exclusivity forbids the use
of a musical work without the It is generally better for the author to
permission of the author first being grant an exclusive license to a
sought and obtained. This permission copyrights collecting society as
or authorisation may take the form of opposed to assigning the copyrights
an assignment or a licence whether in the musical work. By only granting
exclusive or non-exclusive, limited or the copyrights collecting society an
unlimited. Music publishing contracts exclusive licence, the author retains a
are one of such licences. fair degree of control over distribution
and use of the musical work.
Music publishing contracts regulate However, where the copyright is
the relationship between the authors assigned to the collecting society, the
or creatives and the music publisher. collecting society becomes the
These contracts deal with the copyright owner and is thereby
copyrights in the lyrics of the musical entitled to exercise all the exclusive
work and the melody accompanying rights of the author including the right
same which together constitutes the to sue for copyright infringement.
musical composition. The publishing Take for instance, the case of Adeokin
contract allows the publisher to Records & Alhaji Saka Alagbada Vs.
exploit the musical work, by for Musical Copyright Society of Nigeria
example, sublicensing cover versions, (Ltd/GTE) (MCSN)13 which was a suit
granting mechanical licenses to for infringement of the copyright in
record companies, or granting the music title “Ojumo Re” performed
synchronization licenses (or sync by the Nigerian artist, Alhaji Fatai
licenses) for use of the musical work Olowonyo. MCSN sued by virtue of a
with visual content such as movies or deed of assignment executed in its
video games. In so doing, the favour by the artist. The appellants
publisher derives revenue in the form challenged the jurisdiction of the
of license fees, and the author of the court on the allegation that MCSN was
musical work receives an agreed an unlicensed collecting society and
percentage of the revenue generated. therefore had no locus standi (Legal

13 Supreme Court Civil Appeal No. 336/2008 (unreported)

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 Standing)14 to maintain the action. The business, any protected musical
defence of MCSN was apposite; the work15.
society did not sue as a collecting
society but as the owner of the Once one or more incidences of copyright
copyright by assignment. infringement has been identified then it’s time
to consider litigating a case of copyright
LITIGATING COPYRIGHT INFRINGEMENT infringement. But there are limitations to
consider before embarking on this journey.
The breach of the exclusive rights of the
author of a musical work or sound recording is Limitations to Consider
forbidden by the Copyright Act and may
The Federal High Court has exclusive
therefore form the basis of a cause of action
jurisdiction to adjudicate matters of
for copyrights infringement. The incidences of
copyright infringement, and any such
infringement are listed in Section 15 of the
infringement is only actionable at the
Copyrights Act, and they are:
instance of the owner, assignee, or an
exclusive licensee of the musical
I. Unauthorised use and/or
work16. Thus, any person purporting
commercial distribution of a
to litigate a case of copyright
protected musical work;
infringement in any other capacity
(such as a non-exclusive licensee)
II. Importation of a copy or copies of
would lack the locus standi to maintain
a musical work which if made in
the action, and without locus standi,
Nigeria would constitute
the court would lack the requisite
infringement;
jurisdiction to adjudicate the suit.
III. Exhibition in public of any article
In addition, where an action for
of infringement, such as pirated
infringement brought by the
copies of sound recordings;
copyright owner or exclusive licensee
relates to an infringement in respect
IV. Making or being in possession of
of which they have concurrent rights
plates, master tapes, machines,
of action, the copyright owner or the
equipment or contrivances used
exclusive licensee may not, without
for the purpose of making
the leave of court, proceed with the
infringing copies of a musical
action unless the other is either joined
work;
as a plaintiff or added as a
defendant17.
V. Permitting a place of public
entertainment or of business to
A further limitation is placed on suits
be used for a performance of the
by persons carrying on the business of
musical work, where such
negotiating and granting of licenses;
performance would constitute an
or collecting and distributing royalties
infringement; and
in respect of copyright works, or
representing more than fifty owners
VI. Performing or causing to be
of copyright in any category of works
performed, for the purpose of
protected by the Copyrights Act. Such
trade or business or as a
persons are prohibited from suing for
supporting facility to a trade or
copyright infringement unless they
are approved to operate as a

14 The right or capacity to bring an action or to appear in a 16 Section 16 of the Copyrights Act
court. 17 Section 16(2) of the Copyrights Act
15 Section 15 of the Copyrights Act

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 collecting society or have been for suspecting that the work was
exempted by the Nigerian Copyrights protected under the Copyrights Act,
Commission18. This was the gist of the only an account of profits would be
ill-fated preliminary objection in the ordered against the defendant19.
case of Adeokin Records & Alhaji Saka
Alagbada Vs. Musical Copyright CONCLUSION
Society of Nigeria (Ltd/GTE) (supra).
The Nigerian music industry is fast growing
Remedies For Copyright and this rate of growth calls for a paradigm
Infringement shift in the way music is commercialized in
Nigeria. Thus, there is need to move away
Just like in any other civil suit, in a suit from informal transaction structures that
for copyright infringement, the inadequately define the rights and obligations
claimant may seek declaratory reliefs, of the parties to a music deal, in favour of
perpetual injunctions, and/or general modern transaction structures, which
damages. However, it should be although admittedly complex, are a better aid
noted that declaratory reliefs simply to the effective monetization of music as a
determine the rights of the parties creative form expression. In the same vein,
without more, hence the need to there is need to curtail infringing practices
couple a prayer for declaratory reliefs through competent litigation to ensure that
with a prayer for injunction to restrain only authors or persons duly authorised by
further infringement, and damages to them, profit from exploitation of a copyright
compensate for past infringement. protected musical work.

Furthermore, where it is proved or At Templars, we offer practical legal services

admitted that an infringement was to help our clients effectively navigate
committed but at the time of the Nigeria’s unique music marketspace.
infringement the defendant was not
aware and had no reasonable grounds

Contacts

Emmanuel Gbahabo Funso Tinuoye

Partner Associate

[email protected] [email protected]

18 Section 17 of the Copyrights Act 19 Section 16(3) of the Copyrights Act

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