By Mike Akpan*
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On August 1, 2025, an article with the above caption authored by Mr. Habeeb Gobir, a legal practitioner was published in “The Nigeria Lawyer” an online news publication. After reading through the article, it was obvious that the author may not have had the benefit of all the facts, which may have been the basis of the court decision. Moreover, I also felt that there were a couple of salient issues that border on global best practices when it comes to copyright system, which the author had not adverted his mind to, including the peculiarity of Nigeria’s governing law, the Copyright Act 2022, as well as the relevant operating regulatory framework, the Copyright (Collective Management Organisations) Regulations 2007. I quickly drew the attention of the author to some of the issues, through a private chat, which he courteously acknowledged. I was not inclined to publicly commenting on the article, until my Client, Audiovisual Rights Society of Nigeria Ltd/Gte (the defendants in the case subject matter of the article) informed me of the likelihood of misunderstanding of the Judgement by some of hospitality industry practitioners, based on the opinion expressed in Mr. Gobir’s article. As a matter of fact, the AVRS was contacted by some of the hotels, who believed that the Judgement of the court had not done Justice to the case and by extension, the generality of hospitality industry, when it comes to the issue of public performance of creative works, via pay tv subscription service.
It is therefore my intention here to address some of the issues raised by Mr. Gobir in the article, and give the proper perspective to the Judgement of the Court, and also shade light on the application of public performance right in the given circumstance.
First, I will like to commend Mr. Gobir for commenting on the article which to my mind, brought a lot of enlightenment, hitherto not generally available to members of the public concerning the issue of copyright obligations of hospitality industry players. Since the early 1990s, there have been dispute concerning the right of public performance of creative works, as applicable to the hospitality industry in Nigeria. Some of the earliest cases involved the enforcement of public performance rights with respect to musical works and sound recordings. In the course of this presentation, one of such would be highlighted. The current Judgement is perhaps the first known decision of a Nigerian court regarding public performance right for audiovisual works.
In his article, Mr. Gobir raised five issues, which I will like to respond to. But first, it is important to briefly recap what the case was all about.
On 24th October, 2024 Reiz Continental Hotel Ltd, an Abuja based hotel, filed an originating summons, where Audiovisual Rights Society of Nigeria Ltd/Gte was defendant, seeking among others, a declaration that the Defendant (AVRS) cannot demand copyright fees from the Plaintiff for all audiovisual works enjoyed by the Plaintiff when the Defendant is not the owner of the audiovisual works; and that the Defendant cannot demand copyright fees from the Plaintiff where the Plaintiff is merely the recipient of broadcast by television and radio stations.
In its Judgement delivered on Thursday, 24th July, 2024, the court held that by virtue of its status as assignees of copyright in several audiovisual works, and having been duly approved by the Nigerian Copyright Commission pursuant to section 88 of the Copyright Act 2022 as a collective management organization, the AVRS had demonstrated the legal basis of its licensing activities, and was entitled to issue copyright licences to users of audiovisual works belonging to it, including the Plaintiff. The Court rejected the claims of the Plaintiff that it was merely a recipient of broadcast from pay subscription television service, and therefore not liable to any licence from AVRS. The court came to the conclusion that the Plaintiff operating a hospitality business, which is profit-driven, and possessing several television sets which transmit audiovisual contents, its activities were carried out in contravention of section 11(b), (c) (d) and (f) of the Copyright Act in respect of the rights held by the Defendant. The Court also held that the acts of transmission of audiovisual works by the Plaintiff, since done in the context of business, were in contravention of section 36(1)(a) and (g) of the Copyright Act.
In the Course of the Judgement, the court also ruled that the Plaintiff as a member of Hotel Owners Forum, Abuja (HOFA) had entered into a collective agreement with the Defendant for licensing of use of audiovisual works in its business, and as such, was estopped from denying the binding nature of the agreement, which it had already commenced implementing by paying part of the licensing fees. In the opinion of the court, the Plaintiff, Reiz Continental Hotel Limited, cannot be seen to deny the acts done on its behalf by HOFA, as the latter was a disclosed Agent of the Plaintiff.
- Agency and Collective Management: Was HOFA’s Agreement Binding?
Under this heading, the author queried the court’s decision of holding Reiz continental hotel bound by the collective agreement entered into by Hotel Owners Forum, Abuja (HOFA), on behalf of its members with AVRS the defendants in the matter. His reasoning was that in the absence of clear endorsement of the collective agreement by individual members of HOFA, the court should not have held the plaintiff bound by the agreement.
The author however had not queried the application by the court, of the fundamental principles of agency law regarding the capacity of a disclosed agent to bind the principal. Indeed, this was the same reasoning of the Court. It is therefore not true that the court did not consider whether there was ostensible authority of Reiz to HOFA before it ruled that it was bound by the Collective Agreement. Contrary to that reasoning, one of the documents submitted in evidence by the plaintiff, showed clearly that the Plaintiff admitted through their manager, that it was part of the agreement, and that it was in one of the categories of hotels listed in the agreement, and therefore advised its management to pay the tariff assessed based on that categorization. The court rightly in my view held that it was estopped from denying the bindingness of the agreement. There was no way a court would have side-stepped documentary evidence showing admission of the existing agency, such as was made by the Plaintiff. The argument put forward by Mr. Gobir was similarly presented in the address of the Plaintiff Counsel, which I personally found inapposite, as the argument sought to bring in principles of collective agreement in labour matters, where such agreement cannot supersede individual employment contract. Aside the fact of the admission of the plaintiff of its involvement and endorsement of the Collective agreement, there was no bilateral agreement between the plaintiff and the defendant, which one could have easily pleaded as a supervening act. In the absence of such, the court rightly in my opinion held the Plaintiff bound by the Collective agreement.
One other important legal issue which the author of the article may not have adverted his mind to was that licensing activities of a collective management organisation such as AVRS is governed by a regulatory framework, the Copyright (Collective Management Organisations) Regulation 2007, (which was the operating regulatory framework at the relevant time). Paragraph 14 (4) of the CMO Regulations 2007, mandates a CMO to enter into an agreement with representative trade associations, concerning the use of its repertoire by members of such trade associations and notify the Nigerian Copyright Commission of any tariff scale accepted under such agreement. The agreement for which the court held the plaintiff bound, was not just any collective agreement, but one entered into pursuant to the provision of the 2007 CMO regulations. The combined effect of the legal mandate of AVRS under the regulatory framework, in addition to the clear admission of the plaintiff of the fact of its being represented by HOFA rendered it bound by the agreement. It is trite in law that facts that are admitted by a Party to a case need not be proved. The Court needed no further enquiry on the representative capacity of HOFA in the face of a clear admission.
- AVRS as both Assignee and CMO?
While acknowledging the very sound legal standing of AVRS in its capacity not just as a legally approved CMO, but also as an Assignee of various copyrights, the author however went on to query if more CMOs in Nigeria are now acquiring rights through assignment, in which case he considered that this would significantly alter the enforcement scenario. While I could not clearly discern the likely changes to enforcement of rights, it is important to note that the only legal plank upon which any person can enforce copyright is his status as owner or assignee or exclusive licensee of copyright. A CMO cannot in the absence of some form of legal mandate, issue licences to anybody. It is the assignment of rights from various authors and copyright owners in a particular field of collection that vests it with the legal authority to either licence a user or enforce the rights of such owners. The court rightfully referred to Section 30 of the Copyright Act 2022, which states how a right could be transferred from original copyright owner to a third party, and found as a fact that the defendant, AVRS had acquired such assignments, legitimately, which the Plaintiff did not dispute nor brought any evidence to the contrary.
The Judge in coming to the decision that AVRS had shown the legal basis of its licensing activities, relied on the Court of Appeal decision in the case of MULTICHOICE (NIG) LTD v. MCSN LTD/GTE (2020) LPELR-50450(CA) stating the effect of an assignment of copyright acquired pursuant to provisions of the Copyright Act as an accrued vested interest which cannot be defeated by a private person save in accordance with the law and for public purpose.
Collective management of copyright cannot be carried out without acquisition of rights from right owners. The mandates would usually be through some legal instruments such as assignment. While a right owner is not mandated to assign all of his rights, it is however obliged to assign rights relevant to the field of collection, such as public performance rights, if he wishes to benefit from the facility of collective management.
Additionally, the current Copyright Act has empowered collective management organisations to engage in what is usually known in the copyright system as extended collective licensing. The legal Principles governing collective management organization licensing model, which CMOs like AVRS employ, permits a blanket licence for the entire repertoire of works of a particular class which a CMO is mandated to administer, based on the need to avoid legal challenges for users of works. A blanket license enables a user to be able to use all works of the same category without fear of legal consequences, in view of practical impossibility of a user obtaining individual licence from thousands or even millions of copyright owners of that particular class. The essence of such a system is that, where there is an organisation authorised to manage a certain right of a large number of owners of copyrights and, thus it is sufficiently representative in the given field, the effect of collective management is by law, extended to the licensing of the rights of those owners of copyright in the class of works managed by the organisation, who have not specifically entrusted their rights to the organisation to manage.
Section 88 (9) of the Copyright Act 2022 provides for the use of blanket and extended collective licensing whereby an approved collective Management Organization can issue blanket license to a user for the use of all works in that category of works, including those not within its assigned rights.
Assuming that the plaintiff in this case had challenged the capacity of the defendant on the basis of inadequate number of assignments to cover the entire repertoire of works it administered, this provision of the law would have come in handy, and the court would not have found it difficult to still uphold the legal basis of AVRS licensing activities.
- Failure to dispute infringement on the merit
In the article, the author expressed the view that the absence of specific denial of infringement by the Plaintiff, or the plaintiff’s acceptance of use of the works accounted for the court’s verdict that it was liable to pay for such use. In the view of the author, if the Plaintiff had argued that copyright did not subsists in the work, or that the use was covered by statutory exceptions, the decision could have been different. With utmost respect, I do not see how the plaintiff would have argued that copyright does not subsist in audiovisual works, which it did not in the first place deny making use of. As a matter of fact, the Plaintiff in its argument had raised the issue of lack of proof of specific works for which the defendant sought to issue licence. The response of the defendant was that such prove was unnecessary, in view of provisions of section 88 (9) of the Copyright Act, which vested in the defendant the power to administer the entirety of rights within the audiovisual works category. Furthermore, it is my view that why the court did not bother to go into the merit of the plaintiff’s argument regarding lack of proof of specific works used is that, in the face of clear admission of having used audiovisual content, an enquiry into the plaintiff’s argument would have rendered the court decision inconsistent. The court rightfully decided to rather interrogate whether the nature of the use by the Plaintiff, that is, the showing of DSTV broadcast which carried underlying copyright content, in a public setting amounted to acts for which the Plaintiff could be liable for infringement or licensing as the case maybe. The court in my considered view, came to the right decision, based on clear provisions of Sections 11 and 36 of the Copyright Act. It must be clarified that acts of causing an audiovisual work to be seen in public, is in issue here. The argument of the plaintiff that it only displayed what it received from DSTV and other pay television service providers could not have held ground, because of a number of reasons, principal of which is that, they could not show any authorization from the owner of the underlying content for it to be able to show such content in the public. Assuming for the sake of argument, that DSTV had acquired the rights from AVRS or other owners of audiovisual content (which in any event the defendant were unable to show), for acts stipulated in section 11 of the Copyright Act, in the absence of any express permission for its subscribers to use its broadcast in the manner of making it available to the public, the Plaintiff cannot claim any such defense. As a matter of fact, the terms of subscription of DSTV which the Plaintiff made available in its evidence clearly excluded it from showing the content of the broadcast in public settings, and especially hotels. Unknown to Mr. Gobir, one of the pieces of evidence which was before the court was an affidavit which DSTV deposed to in another case involving AVRS denying collecting fees from any of its subscribers for any copyright licence of underlying content. The court had factored in all of these in coming to a decision that the Plaintiff was not entitled to the reliefs it sought.
- Comparative Study: United States as a case Study
The author tried to draw some comparison between the public performance right in the United States as against what is obtainable under the Nigerian copyright law. In my view, he rightfully noted the disparity in the two legal provisions, which is why he eventually in conclusion, accepted that the court decision reflected the spirit and letters of Nigeria’s current copyright legislation, the Copyright Act 2022. More importantly, the author also alluded to the pay television subscription model in US, where the fees payable for commercial bouquet by business entities like hotels incorporates public performance licences. The same cannot be said to be the case in Nigeria with subscription-based pay television like DSTV. Moreover, a careful review of the provisions on public performance rights in the US may give the impression that the element of charging admission fees in a place of public entertainment is crucial in determining whether or not there is public performance.
There is not much to argue here, except to advice that drawing parallel from legal traditions that are unsimilar is usually unhelpful in a comparative analysis. It would have been more ideal for the author to explore provisions in countries with common law traditions similar to Nigeria, such as Australia and the United Kingdom. For instance, in the English case of PERFORMING RIGHT SOCIETY LTD. VS HAMMOND’S BRADFORD BREWERY CO. LTD., (1933) ALL ER REP. 270; the defendant company, who owned a hotel, used a receiving set and loudspeakers to reproduce the broadcast by BBC for customers in their hotel. This was considered as a performance in public. While the BBC that originated the broadcast did not infringe the copyright by broadcasting. The owner of the hotel, however, was held to have infringed the copyright by receiving the broadcast and relaying it over loudspeakers to his customers.
In Nigeria here, courts have ruled in favour of CMOs licensing of hotels. In the case of in MUSICAL COPYRIGHT SOCIETY OF NIG. LTD. V. NIGERIA HOTELS LTD [I]Suit No. FHC/L/43/89 (Unreported decided by the Federal High Court in Lagos, performance of musical works by means of such devices as tape recorders, radio and television sets and also over loudspeakers within the premises of the defendant who operated hotels was held to be infringing on the rights of public performance held by the Plaintiff.
In the case of REGISTERED TRUSTEES OF ASSOCIATION OF HOTEL PROPRIETORS OF EDO STATE V. COPYRIGHT SOCIETY OF NIGERIA LTD/GTE & ORS (APPEAL NO. CA/B.498/2016 (unreported), the Court of Appeal, in its determination of the effect of Section 15 (1) (a) of the Copyright Act Cap C28, LFN 2004 (equivalent to Section 36 (1) (g) of the Copyright Act 2022) held that communication of Musical works to the public by an hotel even where no fees are charged by the hotel enhances the business profitability of the hotel, and therefore liable for copyright infringement. It also held that a hotel cannot benefit from private use exceptions under the second schedule of the Copyright Act, Cap C28, LFN 2004.
- The Path Forward for Nigeria: Harmonisation and clarity
In his conclusion, Mr. Gobir made some important recommendations, one of which is the call for a tripartite licensing arrangement involving CMOs, Pay TV, and industry associations like HOFA. I completely agree with this position. Indeed, there are a few African countries, where the regulatory authorities for hospitality businesses insist on hotels showing their copyright compliance certificates before they are issued operating licences. The Nigerian Tourism Corporation is in a position to look into similar model. I have also observed for instance, that the National Broadcasting Code prohibits copyright infringement and attaches sanctions to it. I have previously advocated for the sanctions to be classified under category A sanctions, in which case an erring broadcast station may likely face forfeiture of operating licence or even denial of renewal of the licence. The current weak sanctions in the NBC code for copyright offences do not encourage broadcasting stations to be more compliant in their use of creative content like music which runs into millions daily. The Nigerian Toursim Commission needs to take a look at the issue of expanding its regulatory purview to ensure that hospitality businesses practice their trade in a manner that respects rights of creators, especially as these rights are constitutionally guaranteed. By so doing, they can meaningfully contribute to sustaining Nigeria’s creativity and its cultural patrimony.
I also agree that CMOs must up their game in terms of greater transparency in the licensing drive. They can deploy more communication tools to enable users understand the essence of the licensing. I am aware that AVRS have often held public for a for enlightenment of users in specific categories like the telecoms industry, and even hospitality industry players. It is such initiative that culminated in the HOFA collective agreement. More efforts could still be made in this respect, even though many operators are disingenuously claiming ignorance. It is sometime curious that even some lawyers who represent this hospitality businesses argue vociferously against licensing of their clients. It is contradictory that the same entities that have found that use of television sets and other communication devices to perform creative works adds value to their business find it difficult to also place value in the underlying content that is being shown in the television broadcast. Creative works entails a lot of investment in their production, and therefore deserves the financial returns and protection which the law accords them. The making of audiovisual works like movies are multi-million-naira venture, that is increasingly becoming unattainable, except with syndicated funds. If third parties are allowed to free-ride on the efforts of creators in the sector, the ultimate consequence is that we shall gradually, but certainly kill the creative industry. This is why the courts must continue to give purposive interpretation to the law, to sustain creativity and investment in the sector.
I must also acknowledge that the Nigerian Copyright Commission has done much to bring clarity into the scenario. In the past 3 years, it has issued about four copyright advisories, two of which dealt with licensing of creative works by CMOs. It specifically in those advisories called on operators of hospitality businesses to comply with tenets of copyright by obtaining licences from approved CMOs.
The call for expansion of statutory exceptions by creating “incidental use” exception in favour of hotels is ill-placed. As I said earlier, one needs to understand the general legal philosophy of a country in order to align its domestic laws to such country. The US which was a reference point by the author, for a start has the concept of fair use which is more flexible and sometimes complex; whereas Nigeria has always had fair dealing general exceptions that is more specific and easier to deal with. Our copyright adjudicatory system is not suited to deal with fair use principle at this stage. The efforts to expand the fair dealing provisions in the present Copyright Act still has not placed it at par with US fair use. Quite a few countries have similar approach to Nigeria, which adopts an open fair dealing exception though with a specific illustrative list of what amounts to fair dealing. More importantly, the guiding principles for statutory exceptions in Nigeria is essentially to promote information flow in the public domain as well as support for education and other social needs. It can hardly be justified for the law to create exception for use of copyright works in commercial settings as articulated by the author in his recommendation. This will take the wind out of the sail of copyright system. The copyright and creative industry is where Nigeria has the greatest comparative economic advantage, and such cannot be sustained, if we advocate for wider statutory exceptions.
In concluding this piece, it must be underscored that collective management is not a Nigerian invention. It is a global phenomenon spanning over 200 years. Incidentally, its very evolution is linked to the hospitality industry. The concept of modern collective management of copyright has its roots in a legal action instituted by two composers, Paul Henrion and Victor Parizot, and one writer, Ernest Bourget, against the proprietors of “Ambassadeurs” a “café’-concert” located in Paris. The action was to compel the proprietors of the café to pay for the public performance of the works of the authors. This arose from the feeling by the authors that if they had to pay for their seats and meals in the café, it was only logical that the proprietors pay for the performance of their works by an orchestra in the café. They therefore took a brave and logical decision that as long as they were not paid for the performances of their works, they would equally not be obliged to pay any fees to the café. The court found in favour of the authors, and the proprietors of the café were obliged to pay a substantial amount of fees.
Collective management is not only a necessity in terms of delivering the gains of creativity to authors in a widening environment of mass exploitation of creative content that defies individual licensing options, but equally a legal facility to enable society legitimately access creative content without the fear of legal repercussions. If only businesses and other users of content can view it from this perspective, then these recurring disputes and legal battles that results in needless expenditure on both sides would have been avoided.
In my view, the Judgement of the court had addressed in clear terms, the legal implications of activities of hospitality business owners, who have for long sought to use creative works of copyright owners without being licensed on the premise that their subscription to pay television was an adequate coverage for such activities. This Judgement, not being punitive in nature, is expected to pave way for an amicable resolution of issues of licensing between collective management organizations and owners of hospitality businesses, not just in Abuja, but also in the entire country.
* Mike Akpan is the Principal Partner of Alpha-Edge Legal, an IP and Corporate Law firm based in Abuja. He was Counsel to AVRS in the case of Reiz Continental Hotel Ltd V. AVRS
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References
| ↑I | Suit No. FHC/L/43/89 (Unreported |
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