The COSON Summit on Digital Licensing

/ Scribe of the Tword

COSON (the Copyright Society of Nigeria) hosted a summit on digital licensing at the Ikeja Protea, on Monday the 12th of August 2013. The purpose of the summit was to discuss the challenges posed to the industry by digital formats for musical works and sound recordings. In attendance were lawyers, record label owners, recording artists, VAS companies (ringtones, caller tunes, etc.), as well as other stakeholders such as representatives of the Record Label Owners Association and the Audio Video CD Sellers Association of Nigeria (AVSAN).

 

The Chairman of COSON, Chief Tony Okoroji, led a panel of moderators that included Efe Omorogbe (Now Muzik), Audu Maikori (Chocolate City), Mark Redguard (Spinlet), Erelu Keji Okunowo (Industry Veteran), as well as a representative of the Nigerian Copyright Commission.

 

After Chief Okoroji took the gathering through the evolution of recording formats from vinyl to 8-track to cassette to compact disc to MP3 and other digital formats, the discussions very quickly split into 3 strains – skilled lawyers/judges are either small in number or not well-known, contracts are not respected, the industry is too fragmented and “disorganised” and offline downloads. Brief summaries and then my 50 kobo on these key issues.

 

LAWYERS AND THE JUDICIARY

One of the problems facing the industry is that many lawyers drafting and reviewing licensing agreements do not have the requisite specialist knowledge. As Managing Partner of G. O. Shodipo & Co, Mr Femi Fajolu, said, “…if you use the same lawyers for maritime as you use for general corporate work, you will sink in the water.” Or, as Audu Maikori said, “Dentists don’t perform eye surgeries.”

 

The danger in non-specialist lawyers preparing specialist agreements is that you are more likely to have bad agreements – the sort that precipitate litigation. Litigation is also an unattractive proposition because apart from its duration (and lack of assets to satisfy judgment debts, in the case of most artists), there is also the problem of not having a sufficient number of judges versed enough to properly settle IP disputes.

 

The summit proposed training sessions for artists and the judiciary. Industry practitioners were advised to contact the Intellectual Property Lawyers Association of Nigeria (IPLAN) for lawyers with specialist knowledge. It was also advised that IPLAN begin to lobby the National Judicial Commission and the judicial institute on appointing judges with IP expertise.

 

Nothing to add, for me.

 

OFFLINE DOWNLOADS

I was unfamiliar with this term before yesterday, though well aware of the activity it describes. Offline downloads occur when, for example, you hand your phone or tablet memory card to a laptop entrepreneur with a library of several thousand songs, some of which he copies onto your memory card for the paltriest of fees; something like 5 or 10 naira per track. Apparently, these guys have become such an issue that even Alaba marketers are complaining. I repeat, Alaba is complaining!!! AVSAN was especially passionate about this, though someone needs to tell them that their model is in terminal decline anyway.

 

This is an extremely tough nut to crack. Proposals considered for tackling it included licensing and persistent raids. However, as they’re literally everywhere, raiding them, no matter how frequently, would be akin to fighting vermin on a 5-acre farm with only a can of home insecticide – very minimal distortion. Licensing would also be tricky. How would pricing be enforced? What would compel people currently evading “capture” to voluntarily come forward for licensing? Should we even really be considering licensing – will the government also license operators of illegal crude refineries, for example?

 

Perhaps market-place executives need to start being held jointly liable for allowing copyright infringement go on within the markets? That way, the local market unions would be compelled to drive such people away from many public spaces. This would probably require a revision to existing laws, however, as people can only be liable for crimes as defined in existing laws.

 

OVER-FRAGMENTATION

“How do you know the real owner of the copyright in a musical work?” “How do you know you have not obtained your license to distribute digitally from the wrong person?”

 

These questions become more relevant as more and more disgruntled artists leave the labels where they became established, to set up their own companies. Inherent in that is the issue of attitudes within the industry to contracts and whether contracts have been properly terminated. However, there is the practical question, where the artist leaves properly, of ownership of new material.

 

Proposals put forward to solve this included mandatory copyright registration (which is not currently required under the law), the establishment of an authentic industry copyright registry and, most worryingly for me, mandatory registration/identification as an entertainment industry practitioner.

 

I think, in considering “sanitising” the industry, a few issues need to be borne in mind. First of all, registration of intellectual property, even where it is mandatory, is only prima facie evidence of ownership. What this means is that anyone who can demonstrate superior title can rebut the title granted by the government in respect of the intellectual property.

 

Secondly, the trend in Nigeria, once older folk start talking sanitisation or regulation is that financial and regulatory barriers to entry begin to crop up. In some cases, the promoters of regulation push for their body to become “chartered”, after which it usually becomes illegal for unchartered people to work within the trade. Caution must be taken that industry veterans do not stifle the creativity of younger participants with whatever remedial actions are agreed upon.

 

Overall, the summit was a useful meeting, the highlight of which, for me, was meeting Laolu Akins. A committee has now been formed to map out an industry strategy to tackle the digital challenge, and we look forward to its report in the coming weeks.

Related articles