When a WhatsApp Broadcast from your Parents FINALLY comes to life

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First of all, a gloat with my learned friends. If they ever sneer at you, asking “What do lawyers really do? Why do you want to collect all that money? Isn’t it just to write ‘heretobefore’?”, wave this judgement in their faces. Good lawyers help clients avoid losing money by asking the right questions ahead of transactions.

Here’s the summary of the case. Fijabi Adebo Holdings Limited bought several cases of ‘soft drinks’ from the Nigerian Bottling Company PLC, makers of Coca-Cola, Fanta, Sprite and those feel-good adverts we see on TV from time to time. The company tried to export the drinks to the UK (yay, diaspora market) but the authorities there found the drinks not in compliance with EU regulation and destroyed them. Bad Market, as is sometimes said. Of course, this was a huge shock to the system of the company, not to mention the financial loss as well, all N15m or so of it. The company sought to recoup this loss by suing NBC and NAFDAC, the Nigerian food and drug regulator.

The company sought general damages of N150 million against NBC, for negligence/breach of duty of care, special damages of N15.1 million, being costs incurred as a result of said breach and N3 million as the cost of bringing the law suit. From the orders sought, as listed in the judgement, the relief sought to be enforced against NAFDAC was “ an order directing [NAFDAC] to carry out routine tests on all the soft drinks and allied products of the [NBC] to guarantee the safety of consumable products [produced by NBC].”

The case turns on the reason for the claimant’s goods being destroyed on arrival in the UK. According to the letter from the Stockport Metropolitan Authority, “[T]he ‘Fanta orange failed due to an excess in sunset yellow colour and both samples failed for excessive levels of benzoic acid.” The samples being referred to here were for Fanta orange and Fanta lemon. It was therefore the claimant’s contention that the soft drinks purchased were unfit for human consumption and that NBC had breached its duty of care.

NBC’s response was that its soft drinks were manufactured well within the regulatory limits set by NAFDAC for production in Nigeria. The benzoic acid was within permitted limits and there was no national limit for sunset yellow. Evidence was led to prove (certificates and testimony from NAFDAC) that the NBC was compliant with NAFDAC and Codex (World Health Organisation Food Standards) and the court agreed. To be clear, the court dismissed the entire claim against NBC.

The claimant tried to suggest that the NBC ought to have known the soft drinks were being exported, since they were loaded into containers in NBC’s premises but that argument went nowhere. The NBC discharged its full legal and moral obligations to the claimant.

Now to the part of the judgement that has gained the most notoriety in its slight misrepresentation. The judge, relying on the following exchange during the cross-examination of the subpoenaed NAFDAC official, decided to order a warning to be printed on NBC labels –

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According to the judge, from this testimony, “it is manifest that [NAFDAC] has been grossly irresponsible in its regulatory duties to the consumers of Fanta and sprite manufactured by [NBC]. In my respectful view, [NAFDAC] has failed the citizens of this great nation by its certification as satisfactory for human consumption, products which in the United Kingdom failed sample test for human consumption and which become poisonous in the presence of Ascorbic Acid, ordinarily known as Vitamin C…” The Court therefore ordered NAFDAC to mandate NBC to include a warning on its Fanta and Sprite bottles that the “…soft drinks cannot be taken with Vitamin C as same becomes poisonous if taken with Vitamin C.”  With respect to the Court, perhaps the basis of the finding should also have been the result of testing and certification, as it was with the other findings of chemical composition. The exchange, as recorded, does not really seem to have much coherence about it. However, the judge had the benefit of observing the witnesses first hand and I didn’t, so I shouldn’t dwell too much on that.

Is there an issue with combining benzoic acid and vitamin C? That’s probably one for the food scientists to tell us. NBC itself says there isn’t, in its statement on the issue here. The FDA in the US doesn’t seem to think there’s that much to worry about either. The ‘harmful’ substance formed when benzoic acid combines with ascorbic acid (vitamin c) is benzene, but it appears to only be harmful in large amounts. I’m a layman where that’s concerned and would be very happy to take guidance from a pharmacist or nutritionist on this point.

What we do know for sure from the judgement is –

  • The claimant failed to find out what the regulatory requirements of the UK/EU were and got burnt (even regular travellers know to check that the ogbono or stock fish in their luggage is permitted across their journey);
  • NBC has shown that its products are safe consumption by both NAFDAC and WHO standards;
  • The Court made no negative finding against NBC.

Are there other health reasons to give up soft drinks? Yes! All that sugar and fizziness never helped anyone except to put on weight and feel bloated. So, give up soft drinks if you want to. You just can’t say it was because of this law suit.

The Nigerian Music Industry: Random Thoughts

It’s been an eventful couple of weeks for the entertainment industry here in Lagos, on the legal side of things. Injunctions were sought (and allegedly flouted), some arrests were made (a label was following the money) and some deals were re-done. Some thoughts on the goings-on and more –

 

  1. It’s a business, not a charity

One of the viewpoints to first make the rounds on social media was that labels ‘in the abroad’ aren’t as hardnosed as Nigerian ones. They, allegedly, invest millions in the artist and if the artist doesn’t make it, everyone just parts ways.

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It’s a slightly outside way of looking at things. Yes, it’s a risk the labels are taking and if they’re not happy at the end of your contract, everyone parts ways happily (see, for example Skales and his former label, EME). However, no “abroadian” artist is going to simply up and try to jump ship. You either run out your contract, try to get the label to release you, or ask the court to tear the contract up. It’s a very naïve or poorly advised artist that declares a unilateral end to a contract that hasn’t yet expired.

 

  1. Contracts are almost unbreakable. But bring the tear of a dragon & a unicorn’s horn & we’ll see…

Contracts are the lifeblood of commerce. If people were able to make commitments to others and fail to honour them without any consequences, business/trade would be in tatters. For this reason, all over the [free] world, Courts are very reluctant to end or amend contracts that have been freely entered into.

 

However, courts have in the past released musicians from their labels, where they were convinced that the recording contract, or the circumstances of the relationship between the parties, prevented the musician from making a living (restraint of trade). Typically, this is where the label has refused to honour music release/publication commitments or has made the terms for doing so too tasking for the artist. Courts might also be minded to declare a contract invalid if the artist can show undue influence on the part of the label. So, basically, if you can show that you were strong-armed into signing onto the label, or that the label is making it virtually impossible for you to earn any income, you might want to talk to a lawyer about securing your release. Lawsuits can be expensive though, especially for an artist alleging that the label is closing off his/her income…

 

  1. Those Unbelievable Clauses? It’s the economics, St#$@*!

Following the ‘arrest’ and questioning of one artist and his manager, snippets of the artist’s recording contract were released and many commentators were shocked at the terms. The most fantastic of the terms appeared to be the £10m release/buy-out clause (riddle: when is a label like a Premier League club?) and the assignment to the label of the artist’s copyright in compositions that existed prior to his joining the label.

 

The immediate assumption was that the artist signed the contract without seeking legal advice or, in the alternative, that he had a bad lawyer. It’s an assumption that misunderstands the dynamics of the Nigerian music industry, as the thinking behind it is that an artist can get a label to significantly change the terms of its contract.

 

There are indeed a few artists that can get their requests for changes agreed to, but most are either label owners or execs themselves. For artists on the up and come, there is very little leverage that can be applied on the label, so it’s usually a take-it-or-leave-it situation. The artist in question here had just been released by his former label, where he’d only been moderately successful and had this new label promising him a signature bonus, a brand new SUV and a flat in Lekki. How many artists in that situation would listen to the lawyer’s advice not to sign?

I’m speaking from personal experience, having advised an artist on a nearly identical contract (whose template is it, anyway?) sans SUV and flat. The label lawyer rejected virtually all the changes requested, so the artist was advised not to sign. Artist signed anyway.

 

  1. Where’s the money, anyway?

Ask the average Nigerian artist where they expect their money to come from and you’re likely to hear live performances and product endorsements. Maybe caller ringback tunes as well. Virtually no one is interested in record sales. This Nigerian model is predicated on music being given away for free in the expectation that fame (and then the live performances and endorsements) will follow. This model probably only works for the Top 20-30 artists in my estimation and I don’t believe it to be sustainable. In addition, on CRBTs side, the average artist will get only 6-12% of the gross revenue, depending on the network (those that pay, that is; some are notorious for not paying).

 

Globally though, the highest growth area for music revenue is music streaming, with the IFPI 2016 Global Music Report showing that streaming revenues increased globally by 42.5% on 2015’s numbers. Digital sales on the whole have overtaken physical, the figures now standing at 45% and 39%, respectively.

Streaming accounts for nearly half of the global industry’s digital revenues. I might have a slight occupational bias here, but artists as a whole stand to make a lot more if they began to take digital REVENUES (not merely distribution) seriously.

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  1. Which brings us to COSON…

COSON continues to do a great job of informing the public in the various rights that music users should respect. They have also done well, as the sole collecting society authorised by the Nigerian Copyright Commission, in collecting license payments from broadcasters and public venues where music is played and enjoyed (hotels, bars, restaurants, etc.).  However, this is performance rights revenue, which globally accounts for only 14% of the pie. If the aim, as the representatives of COSON frequently say, is to ensure that producers, session musicians, songwriters, etc. also get a slice, there’s the question to be asked whether or not it’s helpful to join the industry in ignoring sales. A few producers have been in the news recently, accusing artists of not having paid for the work – they have no share in the revenue from the artist’s live performances, so what’s the remedy? There’s also the issue of sampling and covering – ordinarily, there should be a minimum statutory fraction of the sales revenue (from the song doing the sampling or covering) that goes to the original composer. In a jurisdiction where sales aren’t paid attention to, and no statutory rates apply, how do the original rightsholders get compensated?

 

I am aware, I should say, that COSON has a digital licensing framework in the works, and I look forward to its publication in the near future.

 

 

Mopping through MOPICON

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“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) for the purpose of preventing the disclosure, of information received in confidence; maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematographic films; …”

 

 

This is the summary of the provisions of the Nigerian constitution on the right to freedom of expression. The section has become relevant in the light of a draft bill being circulated, seeking to establish a Motion Picture Council of Nigeria (MOPICON). The name seems innocuous enough, but when a look is taken at what the Bill seeks to empower Mopicon to do (see the MOPICON Draft Billor read a review of the Bill here), then it is time to be a little concerned.

 

As is typical with most Bills in our country, there is no White Paper – no summary of the challenges or mischief facing the motion picture industry. There have been a couple of interventions as to why the Council is needed (see here and here), but these only appear to vaguely refer to the “challenges” facing the industry and the fact that some guilds gained traction and others didn’t. At a first glance therefore, it may be that the production of the Bill was driven by a need for validation in a certain faction of the industry old-timers. A review of the law itself doesn’t help either in identifying what mischief the law seeks to cure, or the problems it is trying to address.

 

The Bill seeks to establish the Council for the purpose of charging it with duties that include, amongst others:

“(a) determining who are Motion Picture Practitioners;

(b) determining what standards of knowledge and skills are to be attained by persons seeking to become registered Motion Picture Practitioners and reviewing those standards from time to time;

(e) regulating and controlling professional practice in the motion picture industry…”

 

It may perhaps then be that the industry has been contending with fake practitioners, lacking in knowledge and skills and functioning without professional regulation and control. These charlatans were probably duping unsuspecting members of the public into hiring them and causing the economy to lose billions of dollars monthly. Who knows?

 

The Bill proceeds to segment the industry into Guilds and Associations. Writers, directors, actors, cinematographers, editors, creative designers and sound and lighting technicians will each have their own guild, while distributors/marketers and producers will belong to associations. Each of these guilds must seek accreditation from the Council.

 

The drafters of the Bill appear to have some doubt over which ministry is supposed to supervise the Council. This is very likely to be connected to the dispute between the Ministry of Information and the Ministry of Communication which arises from time to time, over issues where their jurisdictions ostensibly overlap. As such, the Bill frequently refers to a “Minister in charge of motion picture”.

 

The Bill then creates tiers of membership with the Council – associate members, full members and fellow members. Associate members need to be enrolled in training programmes (of not less than 3 years) with full members who have at least 10 years of experience, and who are recognised and accredited by the Council. Full members need to undergo at least a year’s professional training as approved by the Council, or have acquired “skill and expertise in Motion Picture Practice for a period not less than 3 years.” Fellows get so appointed by the “Privileges and Ethics Committee” of the Council subject to the criteria that said committee will lay out. However, a minimum consideration appears to be that the candidate for fellowship must show that “in the fifteen year immediately preceding the date of his/her consideration, [he/she] has been in continuous active practice as a motion picture practitioner.” What is active continuous practice? If I go away for research/participant observation for my next project for, say, 18 months, have I broken my period of continuous active practice?

 

The Bill says you can’t be a member unless you’re 18 years old, so it’s unclear what this portends for child actors (or other teenage apprentices), given the sanctions for being involved in motion picture practice, which we shall get to in a minute. Foreign actors/practitioners too are excluded unless their home country has a reciprocal arrangement recognising and permitting Nigerian actors/practitioners.

 

The Bill then gets even more interesting.

 

You’re not entitled to practice as a motion picture practitioner unless you’re a member of a recognised Guild or Association. You’re not allowed to stay in your lane, never mind that the constitution grants you the freedom to belong to or leave associations.

 

It goes further to say that you cannot take anyone to court to recover your fees unless you’re either a member or a fellow of the Council, in respect of any work you’ve done as a motion picture practitioner. This means that if you take your debtor to court, it will be a defence for him to say you’re not entitled to the fee since you’re not a member or fellow of the Council.

 

Additionally, if you’re not registered as a member with the Council, you are prohibited from producing or making projects for either the Cinema or Home Video Market.

 

Breaching any of these provisions could make you liable to a fine of N100,000 or to imprisonment for a term of 2 years.

 

Also interesting is that MOPICON will furnish the Nigerian Film and Video Censors Board with the list of practitioners to be licensed under the NFVCB Act.

 

Oh, and if criminal proceedings are brought against you under this law, as they pertain to acts that are offences if done by unregistered persons, the law says there is a presumption that you are unregistered unless you can show otherwise. Changing burden of proof in criminal proceedings. Interesting.

 

What does the MOPICON Bill really set out to achieve? I see nothing more than the establishment of an oligarchy within an industry that has thrived in spite of the government’s oil-centred tunnel-vision. A select group of people (most likely the promoters and their affiliates will determine who is a member of the industry and who isn’t, who can be a “motion picture industry practitioner” and who can’t. The question is, why?

 

Is the industry suffering due to a lack of accreditation of individuals and guild membership? That’s not the impression I get. Rather, because the industry has operated under free market principles so far, those who have distinguished themselves are establishing reputations, are able to attract the funding required to execute bigger projects. Certain producers, directors and editors are beginning to be known as the go-to guys because their quality is speaking.

 

MOPICON will effectively become a licensing authority for the creative industry. License to be an actor, license to be a script-writer, license to direct how scripts are interpreted onto film, license to hold a boom mic and work the sounds and lighting, license to collect one’s fees for one’s work. To me, this is absurd and the omnibus, ubiquitous Nigerianism of wanting to “sanitise” the industry cannot hold. In more developed “motion picture industry” jurisdictions, there is no such regulation. There are censors, as there are in Nigeria, but these operate to classify movies as appropriate or otherwise for different audiences. Some might point to bodies like the Screen Actors Guild but those guys (and a few contemporaries) started out as trade unions to negotiate fairer working conditions for actors. They were not and are not a professional licensing authority. Like these “saner climes”, we also have regulations from the Film and Video Censors Board, as well as a Broadcasting Code from the Nigerian Broadcasting Commission. What tangible benefit is MOPICON going to add?

 

Creativity should not be subject to a license from anyone. Imagine if we couldn’t write novels or blog, stage plays, paint pictures, make music, make sculptures, take pictures unless a small group of tsars said it was okay. This is exactly the same thing. Creative people are judged by how much the public enjoys or rates their work. Quality will shine and be rewarded in due course. The same is true of the converse. I personally hope the MOPICON Bill doesn’t pass.

 

Cracking Digital Music in Nigeria: The COSON Summit

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Disclaimer: The views expressed in this piece are totally personal to me, in my personal capacity as someone who has had a keen professional interest in the development of the copyright administration system in Nigeria for over 10 years.

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The Copyright Society of Nigeria (COSON) just concluded the hosting of a summit on digital music distribution, licensing and consumption. The 2-day event was tagged “The Nigerian Digital Music Summit” and its theme was “Establishing the Basic Rules of Engagement in the Digital Environment”. It was attended by industry practitioners, lawyers and also had resource people from countries with more mature copyright systems, such as Norway, Finland and South Africa. At the end of the summit, a communiqué was published, outlining the various things the community wanted to see in place.

The summit was timely for a couple of reasons – this year, for the very first time, it was reported that revenues from digital exploitation surpassed sales from physical. Revenue from streaming is quickly bridging the gap with revenues from downloads, with some companies actually reporting higher income from streaming than downloads. Streaming is the future, as I have previously written, and the time to begin to lay the groundwork for the Nigerian music industry to fully partake of it, was at least 3 years ago.

THE TELCOS ARE EVIL CORP.

Moving quickly to the substance of the proceedings, the gathering very quickly turned on the telcos, accusing them of benefitting unfairly from the music they exploited, mostly via Caller Ring Back Tones (CRBTs – the songs you hear playing when you give someone a call). And it was understandable. For an industry that has risen from piracy-ridden ashes to becoming arguably the leading hub in Africa and a major contributor to GDP post-rebasing, CRBTs were the content producer’s goldmine for sometime. Network saturation, in terms of subscribers and availability of CRBTs now means there are lots more mouths contending for the same pot of beans and individual revenues are declining somewhat.

In the middle of all this however, is the [unsavoury] fact that the telcos retain anywhere between 60 and 80% of the income generated from CRBTs. The remaining 20-40% is then shared between the Value Added Service (“VAS”) Company and the artist/or record label, with of course an even smaller share for the artist if they are signed to a label. With the bulk of their earnings coming from either corporate endorsements (but we can’t all be Don Jazzy, Phyno, Wizkid or Olamide) and CRBTs, the industry is probably justified to demand a larger cut.

Tellingly, however, very little attention was paid to streaming in spite of the efforts of CAPASSO CEO, Nothando Migogo, to stress that the time to focus on it was now i.e. before bandwidth and data costs stop being issues.

The industry should be worried about streaming because each of the four telcos in Nigeria now operates a music streaming service – MTN Music+, Airtel Wynk, Etisalat Cloud9 and Globacom’s Music App. If these telcos have held on to the lion share of the revenue with CRBTs, what’s going to happen with streaming revenue from their services? For other music streaming services, the most efficient way to take payments from subscribers and purchasers is via their airtime. However, when the telcos convert airtime to cash to pay for a transaction, they typically retain about 70% of it, leaving only 30% to be shared between the stand-alone streaming service and the artist/label. Perhaps the even more pressing issue is that the aim of the telcos in starting these services, in my opinion, is to sell data, as voice revenues have peaked globally – data is the new frontier. It’s the same reason some of them are getting into video on demand, etc. In other words, data sales are the real target, the real pot of gold at the end of the rainbow for the telcos, and these guys don’t share data revenue (larger than music download or streaming subscription revenue) with anyone.

BUT EVERYONE LOVES THE FREE DOWNLOAD SITES

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Perhaps it’s even more striking that an industry that wants to earn serious digital revenues made no reference to the industry practices that cannibalise the larger portion of digital earnings, particularly the way nearly everyone offers vast amounts of music for free downloads. What will the incentive be for consumers to buy albums when 70% has previously been released for free. If one also considers the fact that the industry is globally now more singles-driven than albums (iTunes killed the album), this is effectively a limiter on potential earnings, if all singles are given away. The CRBT gravy-train won’t last forever and it isn’t even really working for those who need it to, who have neither the eye-watering performance fees or the juicy telco endorsement deals. Will those ones dare cross the picket line against their benefactors?

ENTERTAINMENT DEVICE LEVY?

Another interesting issue that came up was the Private Copy Levy. This is basically a surcharge on all mobile phones, tablets, PCs, storage devices, etc. to compensate musicians for the revenues they lose when we email or Bluetooth music to each other. I would be very interested to see how our analogue National Assembly would treat this sort of legislation.

F.U.B.U.

Perhaps a final impression is on a comment made by the panellist on the need to develop homegrown solutions to our problems. Yes, benchmarks can be drawn against global best practice, but ultimately the mature systems matured because they developed relatively organically and catered to the needs of their locale, not necessarily pidgeon-holing themselves into systems others had developed. I think it’s important to take local peculiarities into account, to get the system that works best for us.

All said, COSON is doing very important work and deserves commendation for how far its come in the past few years. As long as it becomes clearer how it distributes revenues it collects, and as it increasingly delivers value to the industry, the benefits to will be immense.

SACKISM IS NEXT TO LAGOONISM – Philosophies of the 2015 Elections

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These have been the most interesting times for Nigeria. Campaigns were had, tents were pitched, votes were cast and a winner was declared. The heavens were supposed to have fallen but they didn’t. It seems the world’s pillars are foundationed in Nigeria as, in spite of the world’s very best predictions of our imminent collapse, we still seem to be holding up half of the African sky.

This season witnessed the birth of new political philosophies in our country. There was Jonathanism and Buharism and fencism, fencists roundly being declared to be closet members of one side of the divide or the other. Interestingly, however, we have seen subsets of Jonathanism and Buharism evolve into unprecedented schools of political thought that would make even the member of the ancient Agora jealous. Jonathism has given way to sackism and a small faction of the Buharist school of thought propounded the theory of lagoonism. So stand back, Plato. Stand back Hobbes and Montesquieu. Stand back, Louis van Gaal. The age of new philosophy is here.

What is sackism? Sackism is the Jonathanian belief that after the fatal loss of an election, order can only be restored to society by sacking every gaddem thing and person in sight. You see a sitting head of the ports authority, feeling pretty and secure in their position, you sack them. You see the head of the police authority revelling in his unprecedented gall to ignore his mobile phones in spite of his commander-in-chief’s telephone calls, you sack his gaddem ass. In fact, one of the strongest tennets of sackism is, if you were not already on your way out after fatally losing an election, you might as well sack your gaddem self. Order must be restored, no matter the obstacles.

What is the ultimate aim of sackism, however? What do sackists ultimately believe? Is there a special heaven for sackists? Do they believe in the ultimate redemption of the sackist’s body, through imperious sackism in the last hours in office? This is not yet known. But Patience is a rite of passage for sackists. Not just patience but fakanistic patience, the sort of which a sackist must have endured prior to his fatal electoral loss. There is yet no agreement on how fakanistic the endurance of patience must be for a sackist to find true redemption but this is still a new, emerging and evolving philosophy. Not unlike lagoonism.

Lagoonism is a theory propounded by the house of kings, espousing a belief in the fatal submersion of all intransigent non-indigenes who resist the call to conformity. The pillar of this belief is that the philosophy of a king is rooted in the infallibility of the poseidonic progenity of Percy Jackson. Lagoonism is akin to baptism but only as far as it relates to submersion. Lagoonists do not believe in the emergence of the submerged body in a cleansed form or state of elevated sanctification. Lagoonism believes that the submerged body of the non-indigene must perish, travel to hades and hope to be reincarnated in the kingdom of the kings as an indigene, to find redemption.

So far, the High Priest of the Lagoon remains the philosophy’s only real proponent but the philosophy has grown a few legs and traversed the length and breadth of the country. Many have visited the temple of Lagoonism and sought in vain to propagate its gospel but their faith was insufficient to surmount the shame there. A quick note must also be made denouncing the purported and oft-pointed out similarity between Lagoonism and Coffinism, largely because philosophical thought must be expressed by known persons in order for credence to be lent to the emergence of the articulated thought as philosophy indeed.

Thankfully, these philosophies are yet to go mainstream and the believers in one are generally not far in proximity to believers in the other. The age of enlightenment is upon us and we salute the espousers of these gaddem newnesses of thought. Commit yourself to deep thinking, that ye might find, ultimately, enlightenment.

DSTV and Ex Parte Injunctions

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The recent ex parte injunction against Multichoice (owners of the DSTV brand and service) is an interesting one. While litigation is not my forte, I think the issue at this stage is one of basic procedure but, of course, I welcome any corrections from my more experienced colleagues.

To put the lawsuit in context, Multichoice, a cable TV broadcaster, has been sued in a class action for increasing its subscription fees in Nigeria. The plaintiffs commenced their action by filing an ex parte motion asking the court to order Multichoice to keep its fees at the pre-hike levels, pending the determination of the lawsuit. An ex parte application/motion is one made to the court by a party in the absence of the party against whom it is sought to be enforced.

Personally, I was surprised to hear that the ex parte motion was granted and here’s why. The relevant rule of court procedure says as follows –

“A motion ex parte shall be supported by affidavit which shall, in addition to the requirements of rule 3 of this Order, state sufficient grounds why delay in granting the order sought would entail irreparable damage or serious mischief to the party moving.” (Emphasis supplied.)

The default position of the law is that the party you’re seeking an order against should be given notice of the motion, as well as the opportunity to present arguments against your motion at the time you’re moving it. However, the law recognises that in some instances, irreparable damage may be done if the normal process is followed and therefore provides for the ex parte process, in what should really be emergency situations e.g. a house may be demolished, or a life is in danger of being lost, or the asset in dispute (a vessel, machinery, etc) may be moved out of the court’s jurisdiction. To my mind, really serious stuff.

Now, while the party against whom an ex parte order has been granted can apply to the court within 7 days to amend or cancel the order, it would be interesting to know the circumstances cited by the Plaintiffs to justify an emergency freeze on the DSTV subscription rates. The company is a private company, delivering a luxury, non-essential service, with different product offerings to cater to different budgets, and customers have the ultimate option of not renewing their subscriptions to prevent the “irreparable damage” to their wallets and bank accounts. There are also alternative services available, ranging from free-to-air terrestrial channels to web-based providers and other cable services as well. It simply seems a very un-urgent matter to me.

I look forward to the final outcome of the suit and ultimately to a time when a Competition/Anti-Trust Commission is established to look into allegations of monopolistic practices and abuses broadly.

The JUSUN Strike: 7 Things (Guest Post by Damola Layonu, @snagapus)

On 2nd January 2015, the Judiciary Staff Union of Nigeria (JUSUN) called an indefinite nationwide strike of all judiciary staff, the last resort in a bid to compel the Federal Government to comply with the Court’s decision in Suit No. FHC/ABJ/CS/66/2013; JUSUN vs. National Judicial Council, ordering that funds accruing to the judiciary from the Federal Account be henceforth paid directly to the heads of courts of the 36 states of the Federation and the Federal Capital Territory. Below are 7 likely fallouts of this –

  1. “Wrong place at the wrong time abi? Na so.” *yinmu*

 

Justice delayed is justice denied, and no mistake! Whether your doppelganger (look-alike) stole bread in the market, or you had a sordid affair with the local Inspector’s wife, if you’re in jail waiting to post bail, think again. The nightmare is just beginning. Get comfortable…or…UN-comfortable as the case may be. You may be staying a while.

 

  1. Waiting for trial? You’re on a LOOOOOONG thing”

 

For two straight days, John Bull and Dauda, the two ‘presidos’ of your cell have made your stay…interesting. There are rats, there are mosquitoes, and you are faced with the shocking realisation that hypothermia is possible in this hot country! You actually have an excellent lawyer, one who might be able to get you off the hook…IF he could just get you a trial date. DARN! The ingenious defence your lawyer has somehow managed to conjure won’t see the light of day for quite some time. Please refer to No.1 above.

 

  1. “Default Penalties: To pay, or not to pay?”

 

At court, every move a lawyer makes – when to file, when to respond, when to serve – is timed. If he exceeds the stipulated time, he just applies for an extension, right? WRONG! What happens if time runs out during the strike? Does he still apply for an extension of time? If so, what reasons does he give? Whose inadvertence (mistake) should the court excuse? Does he pay penalties? If he decides (rightly so, in my opinion) not to, can the Registry lawfully reject his filing? If the Registry refuses, what’s his next move? So many questions! Arrggghhhh!!!! *pulls out hair*

 

  1. “I just got back…for good”

 

You escaped the shores of our blessed country, and have settled somewhere on the Continent, in the Carribean, the Orient or maybe further away than that. One day, you receive a subpoena, summoning you home to give crucial evidence in a case for/against your brother/mother/godmother/company/uncle’s sister/doctor/babalawo etc. and here you are, prepped and ready to destroy the opposition’s case. What now? Just pop back home for a bit? I think not. The strike could end at any time and your absence from court might just put the case in jeopardy, or worse, be deemed contempt, putting you at risk of jail-time the minute you return.

 

  1. “Adjourned to the 29th of Never”

 

Any Nigerian lawyer worth his salt knows that the Court Registries have backlogs – files awaiting re-assignment, rulings that have not been delivered (or written, for that matter, in some cases), and last but not least, suits awaiting adjournment. What is another likely impact of the strike? That’s’ right – MORE files awaiting re-assignment, rulings that have not been delivered/written and suits awaiting adjournment. Good luck with that, guys!

 

  1. “Professional fees, but UN-professional expenses?”

 

Most firms take an initial deposit on account and then settle the balance upon conclusion of a lawsuit. Expenses, however, accumulate during the course of the suit, and may be calculated based on a number of factors including lawyers’ attendance at court. So the question is – Should lawyers still claim their expenses for court attendance even though they KNOW the courts aren’t sitting?

 

  1. “Winner takes (and keeps) all”

 

It’s election season again, or for some lawyers, early Christmas. Every election seems to breed more disgruntled politicians, claiming they won the primaries within their respective parties. Lawyers rub their hands in glee, knowing fully well that the egoes of those passed over will inevitably kick in, the court battles will begin, and the money will follow. Well, sorry lawyers, no Christmas for you this term. And as for the petitioners, we are equally sorry. For if you lost the primaries, you lost FOR REAL. No take-backsies!

 

Now, while I acknowledge that this industrial action may bode serious and detrimental implications and effects, I think looking on the lighter side of things helps. So here’s hoping the strike ends soon and that you at least got a giggle out of this.

Drunken Love (the Consent remix)

 

“Not in a position to give consent” really means not in a position to withdraw it, no pun intended. At least that’s how I read the report of the proceedings in which Ched Evans was denied leave to appeal his conviction. I think this principle skews the balance of justice irretrievably in favour of the accuser, in accusations of non-violent rape, and I’m not certain it’s a good thing.

First of all, however, let’s get some ad hominems out of the way. I am male, the gender more likely to be accused of committing rape. I am the first of four sons and I grew up with no sisters. So perhaps my position will be perceived as biased. However, I am also married (to a woman – one must clarify these days) and we have 3 daughters, for whose future I am always terribly concerned. So, maybe a little reverse ad hominem there too. In other words, I think my opinion will be balanced. At least a little.

My interest in this matter is mostly an academic one – a logical and jursiprudential look, as far as is possible in a non-academic piece such as this, at the events that led up to the conviction of Ched Evans. The facts of the case (here’s the link again) are that Evans and a “mate” of his had sexual intercourse with a very drunk girl, who claims she woke up the next morning hungover, without any memory of what had transpired the previous night. She’d arrived at the hotel where the incident took place in the company of Evans’s friend (McDonald) who, as we say in Lagos, “controlled his guy”. Evans arrived to meet the accuser “enthusiastically engaging in consensual sex” with McDonald and claims she asked him to perform oral sex on her. After that, he proceeded to have penetrative intercourse with her. Long story short, after she woke up the next day she reported to the police and both men were charged. When she was examined and samples taken from her body, there was only evidence of intercourse; no bruises or injuries indicative of violence.

The thrust of the prosecution’s case was that the accuser was too drunk to have given her consent and therefore could not have given it. In a very technical (and almost convoluted) explanation, her memory loss was discounted, both at the trial and at the application for leave to appeal the judgement. Discounting her memory loss is significant for me because, what if she did consent but had forgotten? Rather, according to the judge when sentencing Evans, “…. [the complainant] was in no position to form a capacity to consent to sexual intercourse, and you, when you arrived, must have realised that.” I shall return to this shortly.

The jury, based on evidence of the accuser’s state as gathered from CCTV and witness testimony, acquitted McDonald but convicted Evans. I find this a little curious. If she was too drunk to have consented, as was the prosecution’s case, did going to the hotel with Evans indicate subliminal consent or did she somehow get drunker just before Evans came along? Note that (1) there was no evidence that she ingested more alcohol at the hotel; and (2) when she was tested at the police station, the following morning, there was no trace of alcohol left in her blood. On what basis did the jury deem that she consented to the sexual activity with McDonald but not to the one with Evans?

Then we return to the judge’s summation of the law, that the complainant was in no position to form a capacity to consent. Now, the thinking here is obviously to prevent vulnerable people from being taken advantage of; so that, for instance, men would not get away with intentionally intoxicating targets and putting them in that state of inebriation or incoherence to have their evil way with them. Fair enough. But it does not seem to me that the facts of this case fall under such precautionary jurisprudence. The implications for this on drunken, spontaneous (AND, hopefully, VERY SAFE) trysts, aside, it seems that what is being implied is that it is illegal to have coitus with a partner who is not in a position to communicate a withdrawal of consent.

I put the emphasis on withdrawal because, as these things go, except the sexual act is a transactional one lubricated by financial oils, consent is very rarely ever positively/verbally sought or communicated. Yes, sometimes, the guy asks if he can kiss the lady (I’ve been informed that this is not the preference of most ladies), but many other times, the man generally swoops in tentatively and sees consent or refusal in the lady’s response to his gesture.

Same for more advanced physical contact. You try first base, then second, then third, then go for the home run. It is extremely rare that consent is positively or categorically sought at each of these metaphorical stations. What usually happens is, when it seems like things are moving onward from any base, the uncomfortable lady communicates hesitation (during which moment, many a-weak man will say and promise anything to progress) or an outright NO, at which point, all well-mannered men retreat, albeit regretfully and konjilically. This is why I struggle a little with the reasoning behind “not in a position to form consent” in this case.

This piece does not seek to detract from the seriousness of non-consensual sexual activity. The only reason I’m even able to debate the case is because the crime alleged was not of the stalking or violent variety. I’m also not holding brief for Mr. Evans, and only the three people in the room know what actually occurred. Well, two, if one remembers that the third person had no recollection.

However, if she was so drunk that sex with Evans could not be deemed consensual, how is it that she was deemed sober enough to have consented to sex with McDonald? She was sober enough to agree to go to the hotel with a total stranger but too drunk to have consented to sex with a third party, even though the evidence of the 2 men involved as to what transpired in the room was not contradicted?

Rape is absolutely and completely deplorable and I understand that being a footballer is not a human right, but the facts here do not support Evans being treated like depraved, deviant sexual predator. This is as borderline as they come.

Furthermore, as this Slate piece (long read) suggests, while every accuser deserves to and should have her case investigated thoroughly, the fact of the accusation alone should not lead to a presumption of guilt and the unfair treatment of the accused.

UPDATE: On the 21st of April 2016, Ched Evans had his conviction quashed by the Court of Appeal and a retrial was ordered.

FURTHER UPDATE: On the 17th of October 2016, Ched Evans was found not guilty after the retrial.

 

Guest Post – Collective Rights Management in Nigeria: Unitary v Multiple Collecting Society Models by Olumide Mustapha (@lumes_bg)

music

The recent reports regarding the Concerned Copyright and Intellectual Property Owners’ (CCIPO) open letter to the Honourable Attorney-General of the Federation, Mohammed Adoke-Bello (SAN) (AG-Fed) is of tremendous import with regards to the development of the music industry in Nigeria. The letter contained a plea by the CCIPO for the AG-Fed to intervene on behalf of the former to compel the Nigerian Copyright Commission (NCC) to approve another collecting society for owners of music copyrights.

 

The matter centres around the issue of collective administration of musical copyrights in Nigeria. In particular, the issue of the collection of royalties and the monopoly of the Copyright Society of Nigeria (COSON) in this area, being the only body approved by the regulator, the NCC, to operate as a collecting society for music rights.

 

As it stands, COSON has both been very vocal and visible with respect to its fight against criminal copyright infringement as well as holding various organisations and industries liable in civil law for lack of payment of license fees. This is in addition to its public relations offensive and educational activities to promote the issue of copyright in the music industry. The organisation’s efforts over the last two years have been commendable and the amount of fees they have been collecting and distributing have reportedly been increasing year on year.

 

Where the organisation has been heavily criticised has been in relation to its royalty calculation and distribution formulae, and associated methods. Lack of transparency has also been a levied at the company in addition to the issue of its lack of adequate infrastructure for monitoring the uses of works by commercial users throughout the country.

 

Now, while I am in total agreement with the wide held view that competition is crucial to the development of any industry and economy, the area of collective rights management is unique and therefore requires a gradual process of development until it can be (fully) de-regulated.

 

The mere approval of another collecting society will not in itself ensure that more users will pay license fees for use of music in their respective businesses, nor that music owners will enjoy greater compensation for use of their works. The tendency of (over)- “fragmentation” that is prevalent in most spheres of Nigerian social and economic structures will likely be the result of this desire for ‘de-regulation’, resulting in more confusion, higher transaction costs and ending in less users paying license fees or using music.

 

What   is Collective   Rights   Management:   Pro-Monopoly   v Anti-Monopoly

 

Collective management of copyrights is a system in which owners of works authorize collective management organisations (“Collecting Societies”) to monitor the use of their works, negotiate with prospective users, issue licenses against appropriate remunerations, (usually on the basis of a tariff system), collect such remuneration and distribute it amongst the owners of the works.

 

The rationale for this system arises from the impracticability of managing these activities individually. The transaction costs involved for rights owners to individually administer the public performance rights, (for example), to their works would likely end up being more than the price of the license fee for the use of same.

 

Thus, third-party organisations represent the interests of a group of owners and these ‘collective rights’ organisations, (by virtue of their core activities), enjoy economies of scale when administering these rights on behalf of a large group of rights holders.

 

COSON has repeatedly argued that it is adequately protecting the interests of Nigerian music copyright owners, citing the many civil suits it has filed against various organisations and industries that use music in the course of their businesses. The anti-monopoly advocates, on the other hand, point to COSON’s lack of transparency and accountability, with particular regard to monitoring of works and royalty distribution amongst its members.

 

NCC: Collecting Society Approval Powers

 

Nigeria’s current legal framework with regards to the collective management of music rights (and its regulation) is contained in the Copyright Act Chapter C28, Laws of the Federation of Nigeria 2004 (the “Act”), and the Copyright (Collective Management Organisation) Regulation 2007. We operate what can be described as a unitary Collecting Society model with the flexibility to accommodate multiple societies, while having NCC as the overall regulator.

 

Based on our system, the NCC is not obliged to grant any other organisation a license to operate so long as it is of the opinion that COSON is adequately serving the interests of music copyright owners. Also, because the Act is silent on what would constitute the ‘adequate protection of interests’, it is presumably left to the NCC to decide upon.

 

Going Forward

The primary focus should be on issues surrounding the distribution methods of COSON as well as the adequacy of its infrastructure for the monitoring of the use of works. Audio recognition software as well as the use of ‘field operatives’ to gather accurate evidence of use of works by businesses, broadcasters and other commercial users should be the short to medium term aim. The accurate collation of music usage by licensees also serves the secondary purpose of providing a basis for a more equitable distribution of royalties and license fees amongst members. Commercial users are not mandated by law to keep playlists and logbooks so it is even more imperative for COSON to carry out these activities.

 

Both sides in the dispute must not lose focus of the ultimate goal; to wit, having a suitable administrative framework for music copyright administration in Nigeria, that would involve a simple and efficient method for users to obtain lawful   licenses   to   enjoy   creative   works,   whilst   ensuring   the   equitable distribution of fees and the rewarding of creators thereby stimulating further creativity and innovation. It seems both sides of the argument have this intention in mind and must therefore cooperate and engage in continuing dialogue to find some middle ground on which a consensus can be built.

 

Olumide Mustapha Esq (QSEW) is a Media and Entertainment Attorney. He can be reached by telephone on +234 810 421 55 00, or by email at lumimustapha@gmail.com. He also tweets from the handle @lumes_bg.

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To read further on COSON and its battles, disputes and progress, check out BON, COSON and MUSIC-SHUNs: 5 THINGS.

 

 

 

Streaming IS the Future; but Nigerian Music Needs to Turn on The Tap

music

Last week, Adele’s manager, Jonathan Dickins, was reported as saying during an interview that streaming is the future whether musicians liked it or not. His comments followed news that Taylor Swift had pulled her entire catalogue from Spotify, the world’s most popular streaming service.

Taylor Swift is not the first musician to grow less than enamoured of the service, or with streaming as an income generator for the industry. Last year, Radiohead musician Thom Yorke described Spotify as “the last desperate fart of a dying corpse”, when the group pulled its music off the service. More recently, musician/songwriter Aloe Blacc published an op-ed in which he also expressed grave reservations about streaming as a sustainable source of income. How true, can it be then, that streaming is the future?

Looking at it from Blacc’s perspective, there might be a point about the reward system but I think rather than an indictment on Spotify, it’s more symptomatic of where the industry is, as a whole. Blacc writes –

“Consider the fact that it takes roughly one million spins on Pandora for a songwriter to earn just $90. Avicii’s release “Wake Me Up!” that I co-wrote and sing, for example, was the most streamed song in Spotify history and the 13th most played song on Pandora since its release in 2013, with more than 168 million streams in the US. And yet, that yielded only $12,359 in Pandora domestic royalties— which were then split among three songwriters and our publishers. In return for co-writing a major hit song, I’ve earned less than $4,000 domestically from the largest digital music service.”

If that’s what’s now considered a streaming “success story,” is it any wonder that so many songwriters are now struggling to make ends meet?”

It sounds dire, but that’s 168 million streams versus exactly how much in sales? According to this site, the track sold 237,000 copies when it debuted in July 2013 and only broke the 1,000,000 mark 5 months later in October. Take a look at Billboard’s half year charts for digital singles too. Album sales are down, and have been on the downward trend since 2010. Streaming and subscription revenues, on the other hand, are growing, climbing 51% in 2013 and crossing the $1bn mark (summary here; full report here). The head of Global Trends and Futuring for the Ford Motor Company has also been quoted as saying that “young people prize access over ownership.” So, what’s the issue? Is Spotify, together with the other streaming services simply ripping people off?

The issue may be that content creators don’t fully understand the service yet. Chances are that many users don’t understand the back-end either (they don’t really need to, in all honesty), so if you’re one of them, you might want to check out this post. Another post suggests that Spotify has not sufficiently controlled the narrative and has allowed content creators and the media replace fact with fantasy.

In the latter post (the Lefsetz Letter), the point is made, agreeing with Adele’s manager, that YouTube is by far the bigger monster, paying far less than Spotify does, closely followed by P2P platforms, which pay nothing at all. The post however disagrees with Adele’s manager on some music being taken behind the subscription pay wall, because that would simply push users to YouTube and P2P, leaving the content creators with nothing.

Does this mean anything for streaming in Nigeria? Probably not in the near future. Unreliable mobile internet and expensive data plans mean that very few people without WiFi modems stream much. Furthermore, given that most of our musicians give most of their music away for free downloads, there is little incentive to explore streaming anyway. So, perhaps the Nigerian market prefers ownership to access and this is all moot for now. But I’m an advocate for long-termism, and mobile internet will work someday and voice/data bundles will become more affordable for the streaming demographic. What then?

The current industry model will probably need to change in a year or two. Right now, the model for success is giving music away for free, hoping it becomes a hit that leads to RBT revenue and, ultimately, live performances. This sort of ties in with Dickins’s breakdown of how revenue streams for successful artists today –

60-65% of their income is going to come from tickets, 15-25% from tour merch, 10-15% from publishing, 2-4% from ancillary and 2-4% from record sales.” (Here’s the link again, just in case; emphasis in the quote mine).

You can see though that it’s significantly different, in that 70-90% of revenue will come from touring (not “shows”!) and tour merchandise. However, publishing revenues aren’t insignificant either. Enter, COSON (and its pursuit of digital royalties).

If RBTs are going to be the way forward here, then the crazy percentages that the telcos take of the gross revenue (60-72%, before VAS companies split the net with the artistes/labels) need to come down significantly. The music industry should lobby as hard as they can for legislation to support this (shouldn’t be too hard, with so many entertainers gunning for office in 2015).

If, on the other hand, the African market is to become as competitive as the foreign market, then the industry needs to support its domestic music streaming companies. Streaming kills piracy, and if the numbers are large enough (hint, hint, artistes and label execs), it will put money directly in their pockets. As Lefsetz says, “tech is all about scale” and “people who put brakes on the future end up screwing themselves.”

In conclusion, everyone knows that digital is here and analogue is gone. For Nigerian musicians to fully maximise  revenue from digital, given that their largest market is local, they may need to approach the issue a little differently.