MCSN Doesn't Need Approval As Collecting Society Or An Exemption As One To Enforce Its Right, Supreme Court Rules

In a unanimous decision, a panel of five Justices of the Supreme Court held that Section 15(a) (now Section 17) and Section 32 (now Section 39) of the Copyright Act, as amended, which requires a collecting society to seek the approval or exemption of the Nigerian Copyright Commission (NCC) before it can enforce its rights do not apply to the Musical Copyright Society Nigeria, MCSN. In an appeal by MCSN at the apex court in suit No. SC 425/2010 between MCSN v. Compact Disc Technology Ltd, Nu Metro Home Entertainment (WA) Ltd and Nu Metro Retail Nigeria Limited, the panel, consisting of Justice Mary Peter-Odili, Justice Olukayode, Justice Ariwoola, Justice Kudirat Kekere-Ekun, Justice Amina Adamu Augie, and Justice Sidi Dauda Bage, set aside the decision of the Court of Appeal which held that MCSN can’t enforce its rights unless it is approved as a collecting society or given an exemption by the NCC. In the leading judgment by Mary Ukaego Peter-Odili, the Supreme Court held, “I am in agreement with the submission of the learned counsel for the appellant, that Copyright (Amendment) Decree No. 42 of 1999 which introduced Section 15 A (now 17) is not retrospective. “In fact, the decree specifically stated its commencement date to be May 10, 1999. Based on the above, I am of the humble opinion that since the lawmakers have specifically stated commencement date for the Decree “to be May 10, 1999”, it is clear that the lawmaker never intended the decree to have a retrospective effect. We rely on and adopt the statement of law in the case of Afolabi v. Governor of Oyo State (1985)16 NSCC. (Pt.2) Vol.16,page11512 as follows:- “A law is said to have retroactive effect when the commencement date is earlier in point of time than the date of commencement –for example, Tribunal of inquiry (Validation etc) Decree No. 18 of 1977 which was considered by this Court in the case of Uwaifo v. AG Bendel State & ors(1982)13 NSCC 221 at 232, was dated the 18th day of March, 1977, but therein stated specifically that it shall be “deemed to have come into effect on 29th July, 1975.” “Indeed, the commencement of the Copyright (Amendment) Decree No. 42 of1999 was clearly provided for to be May 10, 1999 which is not earlier than 1986 and 1990 when the exclusive rights in the copyright works were transferred to the appellant. “The issue, therefore, raised retrospectivity of the Act can be said to have been settled by this Court as seen in the case of Ojokolobo & Ors v. Alamu & Ors(1987)2 NSCC991, wherein it was held per Karibi-Whyte (JSC), thus: “the presumption of retrospective is displaced by the provision of a commencement date which is a future date.”]]>