When we talk about copyright infringement in Nigeria, most people think of the famous or infamous Alaba market in Lagos where hundreds of thousands of unauthorized copies of music CDs and video are reproduced and widely sold. That is what is commonly called piracy, the most familiar type of copyright infringement in Nigeria. That is just one aspect of copyright infringement.
As we expand our knowledge of copyright, we must understand that copyright grants the creator of a work a wide bundle or basket of exclusive rights like the right of reproduction, the right of performance, the right to broadcast, the right of translation, etc. Any unauthorized doing of any act exclusively reserved for the copyright owner is an infringement. This is so whether it is done directly or through a third party. The areas of infringement continue to expand in the digital environment.
For instance, copyright is infringed by any person who without the licence or authorization of the owner of the copyright permits a place of public entertainment or of business to be used for a performance in public of a work, where the performance constitutes an infringement in the work unless the person permitting the place to be so used was not aware, and had no reasonable ground for suspecting that the performance would be an infringement of copyright.
Proprietors of events venues like hotels, sports stadia, civic centers, town halls, etc must understand the need to licence their venues for the performance of works which are controlled by copyright. They can alternatively ensure that all potential performers in their venues have obtained necessary licences for the works they wish to perform. If they do not take this seriously, they might be faced with heavy lawsuits.
It may not just be enough for the proprietor of the venue to claim that he was not aware that the performance constituted copyright infringement or that he warned the performer not to infringe copyright.
The English case of PRS Ltd. v. Mitchell & Booker Ltd probably illustrates the situation in the best possible way. Mitchell & Booker Ltd were owners of a dance hall called the Hammersmith Palais. A band was engaged at the Hammersmith Palais to provide music. One of the terms of the contract with the band was that the band should not infringe copyright and if it did, the members will be liable for such infringement. The proprietor of the dance hall went further to post a notice in the hall with the following words, "Only such music as may be played without fee or licence is allowed to be played in the hall". Despite the contract and the notice, the band went ahead to play, without authorization, music that was controlled by the Performing Right Society (PRS), the collective management organization based in London.
In the case, the court came to the decision that on proper construction of the agreement between the dance hall and the band, the band members were the servants of the dance hall owners and not independent contractors. The court also decided that the owners of Hammersmith Palais would not be absolved of copyright infringement because of the provisions of the contract or the notice placed on the premises.
Furthermore, the court took the position that the band members were acting in the course of their employment when they performed the music, the subject of the dispute and that the owners of the copyright were entitled to an injunction and damages for the infringement of their rights.
The decision by the English Court in the above matter appears to be based on the principle of vicarious liability and indicates the need for proprietors of events venues to thread carefully on the issue of copyright in music.
Copyright is also infringed by any person who without the licence or authorization of the owner of copyright performs or causes to be performed for the purposes of trade or business or as supporting facility to a trade or business, any work in which copyright subsists.
Please, performance does not only refer to live performance as in the illustrated case. It includes the playing of recorded music on the facility. It also includes radio, television and cable broadcasts or computer transmission received on the facility. As long as it can be shown that the reception of such a broadcast or transmission is outside of a private setting, a performance in public will be deemed to have taken place. Indeed, even if the record player, radio, television set or a computer monitor is located in a private residence and the performance is clearly audible or visible in public, copyright infringement may still have occurred!
That certainly was the case in another of the many ground- breaking English copyright cases that have developed copyright practice around the world. In PRS v. Camelo, the defendant's wife managed a restaurant on the ground floor of a story building where the family lived. There were three rooms on the ground floor used by the family. The room at the back was the kitchen. The room in the middle served as the family living room. The room in front opened out to the streets and it was in this room that madam's customers were served their meals.
A radio set in the family living room was so loud that it could be heard clearly in the restaurant. The evidence was that the customers were attracted to the music. The defendant however took the position that the radio was situated in a private residence and the fact that the music was heard in the restaurant area was merely accidental.
Justice Clauson who determined the case took the view that it was irrelevant where the radio set was located. According to him, the performance took place wherever the music was audible to a person hearing it as a musical piece. In the words of the judge, "the performance may be in the private living room and extend far beyond the area and on the facts of this case I should say it extends over substantially to the whole restaurant". Of course, it was held that the defendant had infringed copyright.
This kind of infringement is pervasive in Nigeria. Culprits include nightclubs, banks, hairdressing & barbing salons, supermarkets, stadia, restaurants, luxury buses, airports, etc. Think about it while we continue our discussion next week.
See you next week.
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