Justice Daniel Osiagor of the Federal High Court sitting in Lagos has refused to grant the prayers of cable outfit Multichoice Nigeria Ltd. to strike out the claims of the Musical Copyright Society Nigeria Ltd/Gte (MCSN) and its N30 billion copyright infringement suit in their entirety for lack of jurisdiction.
Multichoice, in its preliminary objection, argued four issues: that the plaintiff commenced the action in breach of Section 14 of the Copyright (Collective Management Organisation) Regulations 2007, which mandates parties to submit disputes arising from any matter within their purview to the Nigerian Copyright (Dispute Resolution Panel) to settle.
It was also argued that the plaintiff did not first seek leave of court before commencing an action for infringement of copyright, in respect of which both the copyright owner and an exclusive licensee have a concurrent right of action as stipulated by Section 37(3) of the Copyright Act, 2022.
Its third objection was premised on the argument that the plaintiff has failed and refused to comply with conditions precedent that will vest the court with the requisite jurisdiction to hear the matter and that the plaintiff lacks the locus standi to sue as a Collective Management Organisation (Collective Society) and maintain any action with respect to that capacity because its licence has expired and has failed to renew the same as provided by Section 1(9) of the Copyright (Collective Management Organisation) Regulations, 2007.
In its response, the plaintiff filed a 16-page affidavit and formulated the lone issue of “whether the honourable court, given the 1999 Constitution and the Copyright Act 2022, has the requisite jurisdiction to hear and entertain the subject matter of this suit?”
The plaintiff argued that the suit is a copyright infringement action commenced against the defendant for not obtaining the requisite permission or licence from it before the exploitation of musical works and sound recording in its broadcasting activities.
MCSN further argued that the subject matter of the suit, which borders on the infringement of copyright, is governed by Section 37 of the Copyright Act 2022.
MCSN submitted that the actions of the defendant carry both civil and criminal liabilities in nature as provided for under Sections 37 and 44 of the Copyright Act, both of which can only be tried by the Federal High Court and not the Dispute Resolution Panel.
Finally, MCSN submitted that Exhibit M1 (letter of renewal of certificate) and M2 (certificate of approval) attached to the counter affidavit have a valid licence issued and obtained from the Nigerian Copyright Commission, which was issued and renewed in January 2023. On the strength of the foregoing, MCSN urged the court to resolve the issues raised in its favour and dismiss the notice of preliminary objection.
Ruling on the contentious issues, Justice Osiagor agreed with MCSN’s position that, in line with the provisions of Section 16 of the Copyright Act, it has the right to approach the court to investigate any violations of its copyright works.
On claims by Multichoice that the plaintiff ought to seek leave of court in filing any suit relating to infringement of copyright wherein both the copyright owner and an exclusive licensee have concurrent rights of action as stipulated by Section 37(3) of the Copyright Act, the court held that the provision relates to a situation where both the copyright owner and exclusive licensee have concurrent rights of action.
The question therefore is, does this present suit before the court fall within such a situation to warrant the need for leave of court? “I think not,” Justice Osiagor said.
The court further held that, from the facts of the case and a concrete reading of the plaintiff’s affidavit, the suit does not fall within the situation envisaged in Section 37(3) of the Copyright Act.
The court also dismissed Multichoice’s claims that the plaintiff’s licence has expired, saying Exhibits M1 and M2 attached by the plaintiff clearly showed that its licence has been renewed by the Nigerian Copyright Commission (NCC).
“I must add that the applicant in this preliminary objection is neither here nor there. Counsel argues that the respondent is not a collecting society for lack of licence, then goes ahead to argue that the respondent ought to fulfil the conditions precedent applicable to collecting society, admitting that the respondent is a collecting society”, Justice Osiagor further held.
The court, however, found merit in the desire of the applicant for arbitration and therefore referred parties to arbitration by the Dispute Resolution Panel and ordered the Nigerian Copyright Commission (NCC) to set up a conflict and dispute resolution panel for the parties.
Parties are expected to report back to the Court in October 2024.
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