Multichoice Nigeria Limited ("Multichoice/the Appellant), which is a subscription management company, grants its service subscribers access to programming and content on Digital Satellite Television ("DSTV") bouquet via an enabled decoder. The programming is transnational and covers content from BBC, CNN, Al Jazeera, NTA, AIT and several other stations.

The Appellant asserted that only a collecting society, duly licensed by the Nigerian Copyright Commission ("NCC"), can demand and receive royalties on behalf of copyright owners. It claimed that the Musical Copyright Society Nigeria Ltd/Gte ("MCSN/the Respondent") whose licence had been revoked by the NCC, had been demanding outrageous sums as payment for licensing musical works, contained and broadcast in different channels and programming carried on DSTV bouquet. It also alleged that the Respondent accompanied the demands with threats, to pay the sums as royalties on behalf of the copyright owners it represents, or face unstated repercussions. It further asserted that the Respondent was intent on harassing, intimidating or using threats to disturb its operations and business and those of its affiliates to ensure that the demands were met.

Mutlichoice, as Plaintiff at the Federal High Court, ... Division (lower court), filed a writ of summons seeking inter alia a declaration that the plaintiff is not obliged under the laws of Nigeria, to pay any monies or otherwise to the Defendant (MCSN), as royalties or other payment for material used in programming or as content on the DSTV bouquet, unless the Defendant is licensed as a collecting society for that purpose. In response, MSCN filed a defence and counterclaimed asserting that it was the owner, assignee and exclusive licensee of a body of some musical works in the Nigerian territory.

Multichoice's writ of summons was struck out for irregularity and the court granted MSCN's claims as contained in its counterclaim, necessitating Multichoice's appeal to the Court of Appeal.

Nine (9) issues were formulated for determination, of which issues four (4), five (5) and seven (7) appear recondite. These issues will form the crux of this review, with a cursory discussion on the Respondent's Notice.

Resolution of the issues

The appellate court was called upon to consider and determine whether the lower court lacked jurisdiction to entertain and grant the Respondent's counterclaim as a result of the Respondent's want of locus standi and the court's lack of competence.

The Appellant, relying on section 17 and 39 of the Copyright Act Cap C 28 Laws of the Federation of Nigeria, LFN 2004 ("the Copyright Act"), argued that the Respondent lacked the locus standi to sue via its counterclaim as it was operating business as a collecting society without the authorisation of the NCC. The Appellant further argued that the Respondent was a stranger to exhibits G and G1 and therefore could not benefit from it. The Respondent relied on sections 16(1) and 52(3) of the Copyright Act in asserting otherwise.

Decision of the court

In interpreting sections 16, 17, 39, 52(3) and paragraph 3 of the Fifth Schedule to the Copyright Act, the court applied the literal rule of interpretation, In construing exhibits G and G1, the court held that Mechanical Copyright Protection Society Limited ("MCPS") and the Performing Right Society Limited ("PRS") are the assignors respectively and the respondent is the assignee in the copyright works. The provision of section 11(1) and (3) of the Copyright Act allows the transmission by assignment of copyright works in writing. By the assignment, via exhibits G and G1, the respondent acquired a chose in action in the copyright assigned. The court affirmed the respondent's assertion that it is the owner, assignee and exclusive licensee of a body of copyright works in Nigeria, which the appellant infringed by re-transmitting, re-broadcasting and broadcasting to the public without its licence and by virtue of section 16 of the Copyright Act, the respondent could sue against infringement by anybody in Nigeria. MCSN (Ltd/Gte) v. C.D.T Ltd (2019) 4 NWLR (Pt 1661) 1. Exhibit G was signed on 5th June, 1990 between the MCPS and the respondent, while exhibit G1 was signed in 1986 between PRS and the respondent.

The Copyright Act came into force on 10th May 1999 and cannot have retroactive effect vis-à-vis the respondent's rights. The court held that section 52(3) of the Copyright Act preserves the validity of copyright licencing contracts which predated the Commencement of the Copyright Act. This is evinced by the phrase "notwithstanding subsection (1) of this section and any other provisions of this Act." Hence, the provision of section 17 and 39 of the Copyright Act which the appellant relied on are subservient to the superseding provision of section 52 of the Copyright Act. The court therefore held that the respondent had the locus standi to institute the suit and counter-claim against the appellant.

The appellate court was also imposed with the obligation to determine whether the lower court was right in holding that the respondent's rights were infringed and the appellant liable in damages for same despite that the respondent had failed to obtain the approval or license or exemption from the NCC to operate as a collecting society. The appellant argued in addition to its arguments above, asserted that the respondent failed to prove infringement of its copyright as provided in section 15 of the Copyright Act. The appellant further argued that the fact that the respondent continued operation as a collecting society without a licence made it illegal. The Respondent argued that the respondent was incorporated in 1984 and exhibit G1 in 1986 under the Companies Decree 1968, which predated Companies and Allied Matters Act ("CAMA").

Decision of the court

On the first ambit of this issue, the court held, flowing from issue four above that the respondent did not, as a collecting society, need to obtain a licence from the NCC before instituting the counter-claim and was not in contravention of sections 17 and 39 of the Copyright Act. On the second plank of the issue, the court held that the respondent was not a stranger to exhibits G and G1 and was the assignee under those contracts. Acting on the inference that the respondent had been incorporated in 1984, the court took notice of the fact that the companies' law in existence at the time was the Companies Decree Act (1968). Section 3(a) (1) of the erstwhile Companies Act 1968 permitted a company limited by guarantee to add the word "Limited" as suffix to its name. Hence, the nomenclature did not alter the identity of respondent with the words "Limited by Guarantee", as required under CAMA. The respondent was thus, a competent party to exhibits G and G1 and was entitled to sue on that right.

Finally for our purposes, the appellate court was saddled with the task of determining whether the damages awarded against the Appellant for infringement of copyright were wrong and unjustifiable. The appellant had argued that the respondent had not proved the award of damages while the respondent argued that the principles for award of damages for breach of copyright were different.

Decision of the court

The court held, in upholding the award of damages against the appellant that an appellate court will not interfere in the exercise of discretion of the lower court, except there are extenuating circumstances to warrant interference. British Airways v Atoyebi (2014) 13 NWLR (Pt 1424) 253; Agu v General Oil Ltd (2015) 17 NWLR (Pt 1488) 327. On the issue of special and general damages, the court relied on Plateau Publishing Company Ltd v Chief Chuks Adoply (1989) 4 NWLR (Pt 34) 205 at 225 where the Supreme Court per Uwas JSC held that "in an action for infringement of copyright, damages are at large and it is not necessary to prove actual or special damages". In summary, in the eyes of the law, infringement of copyright interests is like trespass, actionable per se. The court held that the lower court acted judicially and judiciously in granting the award for special and general damages. On the issue of aggravated/punitive damages, the court held, relying on section 16(4) of the Copyright Act and the case of UBN Ltd v Odusote Bookstores Ltd (1996) 9 NWLR (Pt 421) 588, held that intellectual property law allocates power to the court to award additional punitive damages where there is blatant infringement which aggrandises the copier. The court held that the appellant's infringements had grave implications and as such upheld the award of aggravated damages.

The Respondent filed a Respondent's Notice asking the court to vary the amount ordered by the lower court in special damages, owing to a miscalculation. Interestingly, the variation was to reduce the sum awarded from N5, 490,652,125.00 (Five Billion, Four Hundred and Ninety Million, Six Hundred and Fifty-Two Thousand, One Hundred and Twenty-Five Naira only) to N5, 450,152,125.00 (Five Billion, Four Hundred and Fifty Million, One Hundred and Twenty Five Naira only). Even more interestingly, the appellant opposed the Respondent's Notice. The court found for the respondent and against the appellant.

Comments

As can be gleaned from the foregoing, the court has interpreted sections 17 and 39 vis-à-vis section 16 and 52(3) of the Copyright Act to the effect that although generally only collecting societies licenced by the NCC are entitled to demand royalties on behalf of copyright owners, for exploitation of copyright works, where the exception permits, assignees and exclusive licensees of copyright works can also demand and receive royalties in respect of exploitation of the assigned rights and can sue for infringement in the case of default. Also important to note is that the rules applicable to award of damages in copyright actions differ from the conventional principles applicable to award of damages.

Most commendable is the learned Justice's aptitude in distilling the issues presented before the court and the impressive blend of wit and sagacity.

Originally published June 24, 2020.

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