Law & Policy, Legal Drama

Legal Drama: Ope Banwo, Attorney for Musical Copyright Society (MCSN) Issues Press Statement on NCC’s Illegal Raid

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Last week, I shared with you all the press release sent to me regarding NCC’s raid of MCSN’s office. The release appeared to have come from a person who appeared in favor of NCC’s actions. I felt the actions were mean spirited and illegal, based on a reported prior court ruling with parallel facts. I really detested the approach NCC took, especially since there appeared to be no legal basis for such action. Attorney Ope Banwo, representing MCSN, now provides a statement and explains the legal history and court ruling regarding this ever brewing brouhaha. I certainly welcome a press statement directly from NCC, should it deem fit.

AML Artists, please sit up and get educated. Get involved and know exactly what these organizations are claiming they will do for you before you sign up as a member. This brouhaha should not entice you to sign up. They should get their issues straightened out before you participate. Otherwise, your money i.e. your intellectual property that you create will be caught up in this nonsense. It’s like parents fighting while the child sits and looks on, both parents forgetting it is not about them but what is in the best interest of the child. You the artists should be the focus not all this fighting for absolute control/monopoly over work you create from a performance rights organization perspective.

-Uduak

@uduaklaw

RE: NCC’s RAID OF MCSN OFFICE & ARREST OF ITS OFFICIALS

PUBLIC CRY FOR PROTECTION FROM EXECUTIVE LAWLESSNESS

We are solicitors to Musical Copyright Society (MCSN) and it is in furtherance of their instructions that we issue this public statement and Caveat Emptor.

Following public outcry and massive condemnation of the illegal and unconstitutional raid of Musical Copyright Society Nigeria, MCSN’s corporate head office in Lagos on Tuesday, 18th September 2012 and the arrest and detention of  five of its officials, the Nigeria Copyright Commission (NCC) and some elements in its so called approved sole collecting society, Copyright Society of Nigeria, COSON, who are mainly users and infringers of MCSN’s copyright, have sought to justify the action  by relying on a 2010 judgment of the Court of Appeal in Appeal No. CA/L/787/08 between Compact Disc Technologies Limited & ors Vs. MCSN, which is presently on appeal at the Supreme Court.

The following judicial decisions show clearly that NNC’s action is not only unconstitutional but based on barefaced misinformation calculated to mislead the public.

1.      In August 2010, the Federal High Court in Suit No. FHC/L/CS/642/08 between MCSN vs. Visafone Limited raised the question of the constitutional validity or otherwise of the issue of approval or non-approval of MCSN as a collecting society under Section 39 of the Copyright Act when Visafone Nigeria Limited brought a preliminary objection seeking to strike out or dismiss an infringement action brought against it by MCSN relying on the same Compact Disc Technologies’ judgment.  The court asked parties to proceed to trial when all the necessary issues, particularly the constitutionality of the powers of NCC as pertaining to the right of MCSN can be determined. Visafone appealed the issue to the Court of Appeal on the strength of the same Court of Appeal judgment in the Compact Disc Technologies vs. MCSN appeal.

2.      On July 1, 2011, the Court of Appeal in Appeal No. CA/L/494/09 between Visafone Limited vs. MCSN, directed parties to return to the Federal High Court for trial of all issues including the constitutionality or otherwise of Section 39 of the Copyright Act as it relates to the rights and interests of MCSN as an owner, assignees and exclusive licensee of copyright and dismissed the appeal brought by Visafone Nigeria Limited seeking to strike out or dismiss MCSN’s suit against it, as incompetent.

3.      On July 25, 2011, the Federal High Court in Suit No. FHC/L/35/2008 for the first and only time had the opportunity to determine the validity or otherwise of Section 39 of the Copyright Act vis-à-vis the actions of the NCC based on that Section, and in extension the Compact Disc judgment and ruled that Section 39 of the Copyright Act as it relates to the action of the NCC against MCSN is unconstitutional, null and void.  The Court went on to award damages of N40 Million against the NCC to MCSN and its officials, which MCSN has been executing, even as at August 2012.  Though NCC has appealed against that judgement, the fact remains that that judgment remains valid and subsisting until a higher court pronounces on it.Furthermore, that judgement remains the only judicial authority on the constitutional validity of Section 39 of the Copyright Act with respect to the property rights and interests of MCSN and copyright owners in general.

4.      Hitherto fore, on June 16, 2010, still after the same Compact Disc Technologies’ judgment, the Federal High Court has handed down an order which is still subsisting, directing that MCSN should continue with its operations as an owner, assignee and exclusive licensee of copyright pending the determination of the suit challenging the decision of the NCC not to approve MCSN as a collecting society.  The suit is yet to be determined before NCC embarked on its illegal raid and arrest of MCSN’s offices and officials.

If the logic of both the NCC and COSON are to be followed that the judgment of the Court of Appeal in Compact Disc case set aside or overturns the decision in MCSN vs Adeokin Records Co. of 2004, then it follows that the judgment of the Court of Appeal in the Visafone Limited vs MCSN has equally set aside or overturned the decision in Compact Disc Technologies vs. MCSN.

As a matter of fact Hon. Justice Obiageli Nwodo, JCA, in the Compact Disc judgment declared that the property rights of MCSN remains intact and the jurisdiction of the court unaffected.

Till date, there are three judgments of the Court of Appeal in the area of the subject matter of approval of collecting societies, two and a half of which are in favour of MCSN and one judicial decision on the constitutional validity or otherwise of the subject matter, which is also in favour of MCSN. COSON and its predecessor-in-title, PMRS, are yet to get one judgement in their favour.  Do NCC and COSON hope therefore that COSON would survive on regulatory executive lawlessness and barefaced deceit?

The combined effect of all the judgments cited above is that the NCC has no constitutional standing to do what it is doing to MCSN and its staffers and must be condemned by all right-thinking Nigerians and urged to follow the constitutional path in dealing with private interests and rights, which copyright matters are.

The NCC should also be asked the simple question of why was it running away from a judgment which was handed directly against it, to rely on another judgment in which it was not even a party, to deceive the public and unleash executive lawlessness on MCSN and its staffers?

Any form of arbitrariness in one section of the society will invariably spread to others if not appropriately confronted. In a country of laws, the Government cannot, and will not be allowed, to take away the constitutional rights to property of its citizens and vest it in another by executive fiat. MCSN is of course taking appropriate legal steps to secure and enforce its fundamental and constitutional rights and those of its officials and members but our efforts are being hampered by incessant harassment of NCC officials and threats to arrest and detain our Director Of Legal Matters, Dr Ope Banwo for diligently defending the rights of our staff to be represented and advised by their attorney.

CAVEAT EMPTOR TO ALL RIGHTS — USERS (I.E All Tv Stations; Hotels; Telecoms; Cable Networks, Radio Stations, Clubs Etc)

We hereby seize this opportunity to notify the general public that MCSN has NOT given COSON, or anybody else for that matter, ANY POWERS, RIGHTS OR AGENCY to deal in any works owned by, or under assignment to MCSN by copyright holders. Anyone who deals with any other person or body, particularly COSON, in any interest in copyright works owned by or vested in MCSN does so at its own risk and would invariable have to contend with MCSN at the law courts.

Regardless of continuing harassment and threats of arrest against MCSN officials and their Legal advisers, MSCN is determined to diligently defend the constitutional rights of its members to own and deal in property against any and all violators of that right. Everyone should exercise caution and confront any form of arbitrariness in these trying times.

Principal Partner                                                                      Chairman, MCSN.

BANWO AND IGBOKWE

ATTORNEYS-AT-LAW

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AFRICA MUSIC LAW™ (AML) is a pioneering music business and entertainment law website and podcast show empowering the African artist and Africa's rapidly evolving entertainment industry through brilliant music business and entertainment law commentary and analysis, industry news, and exclusive interviews.

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ABOUT THE FOUNDER

Credited for several firsts in the fashion and entertainment industry, Uduak Oduok (Ms. Uduak) is a fashion and entertainment lawyer, speaker, visionary, gamechanger, trailblazer, and recognized thought leader, for her work on Africa’s emerging global fashion and entertainment markets, and the niche practice of fashion law in the United States. She is also the founder of ‘Africa Music Law,’ an industry go-to music business and law blog and podcast show empowering African artists. Her work in the creative and legal industries has earned her numerous awards and recognitions, including an award from the American University Washington College of Law for her “legal impact in the field of intellectual property in Africa." She has also taught as an Adjunct Professor at several institutions in the United States. For more information, visit her at https://msuduak.com.

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