The Creative Industry globally is one lucrative industry which strive with the exploitation of intellectual property rights especially with copyright interests. Rightholders include authors, performance and producers get certain rights withrespect of their works or recordings. However, it makes more sense for these rights to be exercised collectively by an organization set up to represent the interest of its members. To make doing business as easy as possible requires a one-stop service. For example, it wouldn’t be commercially viable for the owners of a radio station to have to go to copyright owners of the sound recording and of the rights in the songs on each of the records that the station bosses want to play on their programmes. It would be far too time-consuming and costly. Hence the existence of collection societies which represent the interests of publishers, record-labels, authors and performers. There are several of such collection societies today around the world such as PRS for Music in the UK, SACEM Société des auteurs, compositeurs et éditeurs de musique in France, Copyright Society of Nigeria (COSON) and Music Copyright Society of Nigeria (MCSN) here in Nigeria, amongst others. With the recent rebasing of the Nigerian economy giving more credence to the creative industry, the Nigerian music industry with numerous talented and award winning artiste widely appreciated across the world. The need for a viable framework institutionalizing the collection societies in Nigeria cannot be overemphasized.
WHAT ARE COLLECTION OR COLLECTING SOCIETIES?
These are organizations set up by various categories of rights owners to administer their rights collectively as their sole, or one of their main purposes. There are private as in most Jurisdiction although in some jurisdiction their existence is envisaged by statutes and there are subject to some form of state supervision. In the UK Section 116(2) CDPA defines a licensing body which is construed as a collection society. However, in countries such as Ukraine, Belarus, Kyrgyzstan collection societies are governmental bodies, employees are state apponted, right holders are not members, but instead have a representation agreement with the government which collects and distributes royalties. There are largely a de-facto monopolies, but in some countries are de jure monopolies. Monopolistic statutes created by law. In Switzerland “one society only for each category of works” (Art. 42.2 of the law). Similar provisions in Italy; Latvia; Belgium; India; Argentina; Bolivia.
The purpose of most collection societies is to provide a practical and economical service to enable its members to enforce and administer certain of their copyrights. These bodies make it easier for others to get licenses to use copyright works.
HISTORY OF COLLECTION SOCIETIES.
In 1777, French playwright Beaumarchais establishes the “Bureau de Legislation Dramatique”. In 1829 it became the Societé des Auteurs et Compositeurs Dramatiques (SACD) representing playwrights in front of theatre owners, collecting payment from theatres on behalf of playwrights. 1847, French author Ernest Bourget demanded royalties for the performance of his music in a Paris cafe. He refused to pay the bill, claiming that the orchestra had played his music without paying him anything. On 8th September 1847, the Tribunal de Commerce de la Seine prohibited the owner of the cafe from playing works of the composer without his consent. This led to the establishment of the first collecting society representing authors of musical works. In 1851, the Société des auteurs, compositeurs et éditeurs de musique (SACEM) was established which was the first music performing rights collecting society in the world. In 1903 GEMA (German society) established by composer Richard Strauss. In 1914, American Society of Composers, Authors and Publishers (ASCAP) was established by a group of authors after hearing from Italian opera composer Giacomo Puccini that in Italy, composers are paid for the performance of their works. In 1914, Performing Rights Society (PRS) was formed in the UK. In 1934, PPL (Phonographic Performance Ltd), representing record producers, was established, following a court ruling recognizing performance rights in phonograms. Several collecting societies now exist around the world.
FUNCTIONS OF COLLECTION SOCIETIES.
There are two possible options for collective management: (1), Voluntary collective management wherein right holders are free to choose whether to individually or collectively managed their rights. (2) Mandatory collective management wherein right holders cannot manage their rights on an individual basis and are obliged under the law to assign them to a collecting society of their choice. In some cases they have only one choice such as in the EU, cable retransmission right (under the Cable and Satellite Directive – 93/83/EEC). The main functions of collection societies include Administration of rights which includes maintaining of a database of members and of rights, repertoire managed on their behalf, identifying users, Setting tariffs, Negotiating licenses with potential users, issuing licenses on behalf of its members, Collecting royalties, distributing royalties to members, enforcement of right which includes investigation of unauthorized use, instituting lawsuits against infringers. Cooperation between societies in different countries whereby national societies in different countries enter into bilateral representation agreements which allow each society to issue licenses in respect of works of other societies within its territory. Local user (e.g. radio broadcaster) can obtain from the local society a license that covers worldwide repertoire. The types of rights collectively managed in the music industry includes that of Authors, producers and performers. Authors rights includes: Public performance (music performed in public places), Communication to the public (radio and TV broadcasting, cable transmissions, making available/online transmissions), Reproduction, Mechanical rights (reproduction of compositions/lyrics on sound recordings). For Producers and performers such includes remuneration for public performance and broadcasting certain non-interactive online transmissions private copying levies.
One of the features of collection societies is the grant which is referred to as blanket licenses for certain rights in all the works controlled by the society for a purpose, for a particular period of time and at a particular rate. Anyone interested in taking advantage of that window has to take a license for the whole catalogue. In the UK the PRS can negotiate a blanket license with radio broadcasters for the right to broadcast to the public all the works controlled by the PRS. The license is for a given period of time, say for a year, and is subject to review. Whilst the collection societies became very skillful and proficient at negotiating and administrating collective licensing scheme in their own countries and for non-digital means of distribution, things became more difficult for them when it came to digital uses. The EU has given directive to collecting societies to make easier for new commercial venture to flourish across European Economic Area (EEA). While this is laudable it is very difficult to get all members within a continent to agree on a course of action and on rate to be set for centralized licensing. For example, the writer is not aware of any reciprocal agreement between COSON and other collection societies in Africa where the Nigeria music is widely exploited. If my assumptions are correct there is an urgent need for bilateral and/or agreements to fully maximize and annexed the full benefits of our creativity by initiating some rates in particular categories to be set for centralized licensing, particularly when it involves new media and means of distribution. This is a reasonable approach which will be mutually beneficial to all stakeholders in the creative industry across Africa as wide licenses will give room for a uniform exploitation of rights.
However, it is pertinent to bring to the fore the CISAC case in the EU which considered similar proposal. The case was sequel to two complaints to the EU commission for refusal of GEMA to grant community-wide license to RTL for all its music broadcasting activities. In reaching a decision the commission resolved in line with the recommendation of 2005 to wit : “
Right-holders should have the right to entrust the management of any of the online rights necessary to operate legitimate online music services, on a territorial scope of their choice, to a collective rights manager of their choice, irrespective of the Member State of residence or the nationality of either the collective rights manager or the right- holder.”
The policy behind this decision is that such model contracts will restrict competition. Therefore an artiste like ASA who is not resident in Nigeria but in Paris is not bound to subscribe to COSON in order to exploit her copyright interest in Nigeria . She is at liberty to entrust same with any collective manager of her choice. This CISAC decision is now pending before the ECJ for judgment.
There are, of course, possible dangers inherent in that these collection societies are, by their nature, monopolies. It’s the job of the respective commission in our case the copyrights commission to guide against such monopolistic position. The commission cannot described one particular society and impose same on right holders as the only collective society in Nigeria at the instance of similar societies thereby restricting competition without an enabling framework.
By removing restrictions in the system between collection societies, the decision encourages collecting societies to bring their business practices up to speed with the borderless nature of satellite, cable and internet exploitation. It will also provide the necessary guidance to collection societies by creating the framework for a more competitive market which should benefit authors, collecting societies and commercial users.