OVERVIEW OF THE PUBLISHING INDUSTRY AND LEGAL BASIS

OVERVIEW OF THE PUBLISHING INDUSTRY AND LEGAL BASIS FOR COLLECTIVE MANAGEMENT IN NIGERIA BY OBI EZEILO obi. ezeilo@copyright. gov. ng obiezeilo@yahoo. ca DEPUTY DIRECTOR NIGERIAN COPYRIGHT COMMISSION PRESENTED AT AWARENESS RAISING SEMINAR ON THE COLLECTIVE MANAGEMENT OF COPYRIGHT ORGANISED BY ARIPO, IFRRO, NCC, REPRONIG & WIPO LAGOS, SEPTEMBER 17, 2013

HISTORY OF THE PUBLISHING INDUSTRY IN NIGERIA �The very first printing press in Nigeria was established in Calabar in 1846 by Rev. Hope Waddell of the Presbyterian church of Scotland Mission. �The press was used to print bible lessons and later arithmetical books for schools. �In 1854 another missionary based in Abeokuta, Rev Henry Townsend of the Church Missionary Society (CMS), established a press. �Five years later (1859), he used it to print the very first newspaper in Nigeria “Iwe Irohin”. From that effort grew what we know today as the CMS Press.

HISTORY OF THE PUBLISHING INDUSTRY IN NIGERIA (CONT. ) �The Ibadan University Press was known as the first scholarly publishing house in West Africa. It was established in 1952. �Between then and the mid 80’s, many university presses and publishing houses especially foreign companies were established in Nigeria, encouraged mainly by the economic boom of that time. �With the economic decline of late 80’s, the entire publishing industry started a downwards slide. Demand for published works reduced and some foreign publishers left the country.

HISTORY OF THE PUBLISHING INDUSTRY IN NIGERIA (CONT. ) �Some publishing companies began to concentrate on few academic books where they were sure of the market. Quality of published works declined. Distribution channels became distorted. �The dwindling capacity of the big publishers led the coming into existence of many small publishing companies �Some authors commenced self-publishing or the so-called ‘vanity publishing’. �In some cases, authors entered into partnership with publishers to partly finance the cost of publication. This way, the publisher bore only part of the risk in case the

FEDERAL GOVERNMENT INTERVENTION IN THE INDUSTRY �Some publishers also resorted to the Print-on-Demand (POD) system where the books are printed only when they are demanded for. �The Federal Government made some frantic attempts to remedy the situation by setting up a number of task forces, study groups, conferences and committees to save various facets of book production and distribution especially academic books to meet the needs of the educational system, viz; �In 1983, there was the Nigerian National Congress on Books;

FEDERAL GOVERNMENT INTERVENTION IN THE INDUSTRY (CONT. ) �In 1984, the Task Force on the Scarcity of Books and Stationery; �In 1987, the Panel on a Book Policy for Nigeria; �In 1989, the ODA/ World Bank Books Sector Study; �In 1990, the National Council on Education Committee Report on the Rationalization of Textbooks in Primary and Secondary Schools; �In August-September 1990, the Ministerial Committee on Provision of Books to Schools and Colleges;

FEDERAL GOVERNMENT INTERVENTION IN THE INDUSTRY (CONT. ) �In August 1993, the Nigerian Educational Research & Development Council Review Workshop on Preferred Recommendations for solving the problems of the Nigerian Book Industry and Formation of Implementation Strategies; �in April 1994, the National Conference on Book Development organized by the Nigerian Book Foundation on theme "Making Books Readily and Affordable”. �All these efforts and the improved national economy led to enhanced activities in the publishing industry. �However most of the big publishers still concentrate on academic books.

THE NIGERIAN COPYRIGHT LAW �The existing copyright legislation in Nigeria is the Copyright Act Chapter C 28 Laws of the Federation of Nigeria 2004. It made extensive provision for protection of copyright works. �Works protected by copyright includes literary works, musical works, artistic works, cinematograph films, sound recording and broadcast. There also provisions for protection of performer’s right and expression of folklore. �The nature of rights reserved for each class of rights are similar with a little variation. However, by Section 6 of the Act, the owner of copyright in a literary or musical work has the exclusive right to do and authorise the doing of any of the follow acts:

THE NIGERIAN COPYRIGHT LAW (CONT. ) �Reproduce the work �Publish the work �Perform the work in public �Produce, reproduce, perform, or publish any translation of the work �Make any cinematograph film or a record in respect of the work �Distribute to the public for commercial purposes copies of the work by way of rental, lease, hire, loan or similar arrangement �Broadcast or communicate the work to the public

THE NIGERIAN COPYRIGHT LAW (CONT. ) �Make any adaptation of the work �Do in relation to a translation or adaptation of the work any of the above stated acts The Act further provides that copyright is infringed by any person who, without the license or authorisation of the owner of copyright, does or causes any other person to do an act, the doing of which is controlled by copyright-Section 15 (1)(a) of the Act. �The right to reproduce a literary work is therefore reserved for the owner of the work. However, the reproduction right reserved is in respect of the whole or a substantial part of the work either in its original form or in any form recorgnisably derived from the original. Section 6 (2) of the Act.

THE NIGERIAN COPYRIGHT LAW (CONT. ) �It is then an infringement of the right of the owner to reproduce the whole or substantial part of his work without his license or authorisation. �What is whole or substantial has not been defined by Nigerian courts but the courts will mostly likely be persuaded by decisions from other commonwealth nations in this area. �The courts will be inclined to accept the English law principle that "what is worth copying is prima facie worth protecting". The question of what would amount to a substantial part of a work is one of fact and degree.

THE NIGERIAN COPYRIGHT LAW (CONT. ) �As declared by Lord Reid in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd. , "the question whether the defendant has copied a substantial part of a work depends much more on the quality than the quantity of what he has taken. " �Therefore where students or lecturers decide to photocopy portions of a textbook or journal which they deem so important to photocopy and keep, it may be difficult to say that those portions photocopied are not substantial part of the book.

THE NIGERIAN COPYRIGHT LAW (CONT. ) �The law went further to define reproduction to mean the making of one or more copies of a literary, musical or artistic work, cinematograph film or sound recording. Section 51 of the Act. �It is instructive to note that the Nigerian Copyright Act does not make specific reference to photocopying or reprography but to the more generic incidence of reproduction which is all inclusive. �Although photocopying often includes literary, artistic and musical works, there is very little use of sheet music in Nigeria. The bulk of the photocopying that goes on is therefore in literary works, particularly books and artistic works either as illustrations, diagrams or photographs.

COLLECTIVE MANAGEMENT OF COPYRIGHT IN NIGERIA �The Nigerian Copyright Act not only provided adequately for the rights in literary works but also anticipated the consequences of infringement. It recognizes that it would be impractical for every prospective user to obtain license from the respective right owners for every intended use of every work. �It provides that a collecting society may be formed in respect of any one or more rights of copyright owners for the benefit of such owners and the society may apply to the Nigerian Copyright Commission( NCC) for approval to operate as a collecting society- Section 39 (1). �NCC may approve a society to operate as a collecting society if it is satisfied that the society meets certain listed pre-conditions- Section 39 (2).

COLLECTIVE MANAGEMENT OF COPYRIGHT IN NIGERIA (CONT. ) �NCC may make regulations guiding the operation of collecting societies – Section 39 (2)(d). �It is a crime punishable upon conviction by a term of imprisonment for any organisation, person or group of persons to purport to perform the duties of a society without the approval of NCC - Section 39 (4)(5) & (6). �The Commission has made the Copyright (Collective Management Organisations) Regulations 2007.

NCC POLICY ON REGULATION OF CMOs § To encourage the establishment of strong and credible national CMOs that will reflect the aspirations and expectations of Nigerian authors; § To encourage, as far as possible, the formation of CMOs for different categories of copyright works or class of rights; § To provide technical support for effective management of rights by approved CMOs; § To engender transparency and accountability in the management of affairs of CMOs; § To ensure a proper balancing of the interest of authors of copyright works in relation to users of copyright works; and § To ensure a conducive and rancour-free licensing environment for approved CMOs.

REQUIREMENTS FOR MANAGEMENT AND MEMBERSHIP STRUCTURE • Organs of a CMO must include General Assembly of all members and Governing Board/Council; (Reg. 1 (3)(b)); • The CEO, who shall not be a member of the organization, should be a person knowledgeable on copyright; • The internal rules of the organization (articles of association) must provide for representation of the NCC at meetings of the organization; • Only a member of the CMO can be appointed as a Chairman of the Governing Board and Management shall be Citizens of Nigeria and ordinarily resident in Nigeria;

REQUIREMENTS FOR MANAGEMENT AND MEMBERSHIP STRUCTURE (CONT. ) • The Governing Board shall as far as possible reflect the different categories of right owners in the CMO. • Membership of the organization must be open to all right owners of the category of rights for which CMO is seeking license to operate; • The CMO should not impose as requirement of enrollment, that a member should constitute the CMO as his sole agent or agent for other purposes; • Provision may be made for collective membership or membership through an association but each member shall be entitled to one vote with similar rights and privileges;

PUBLISHING INDUSTRY AND COLLECTIVE MANAGEMENT • The basis for the collective management of rights is the existence in a right owners a right of an exclusive nature prohibiting third party dealing therein without prior authorization. • The Copyright Act however confers ownership of copyright in a literary work on the author and not the publisher. Unlike what obtains in some other jurisdictions, copyright protection for literary works does not extend to the typographical arrangement of the text or material. • There is much persuasion in the argument that publishers should be granted a separate right in typographical arrangements of a work in a manner similar to the rights granted to recording companies in their sound recordings but this has not yet been incorporated in Nigerian law.

PUBLISHING INDUSTRY AND COLLECTIVE MANAGEMENT (CONT. ) �The publishing companies therefore derive their right to literary works and to collective management of literary work from the contracts they signed with authors of these works. �The only Collective Management Organisation approved by NCC to administer literary rights in Nigeria is the Reproduction Rights Society of Nigeria (REPRONIG).

EXCEPTIONS TO THE RIGHT OF THE COPYRIGHT OWNER �The second schedule of the Copyright Act provides some exceptions to the rights reserved exclusively for the owner of a copyright work including the right of reproduction of the owner of a literary work. �These exceptions include some limited use of works by educational institutions, the government, National Archives, media organisations, public library, the museum or reproduction of a published work in braille for the exclusive use of the blind.

EXCEPTIONS TO THE RIGHT OF THE COPYRIGHT OWNER (CONT. ) �By far the most challenging exception is the provision that ‘the right conferred in respect of any work does not include the right to control the doing of any of the acts mentioned by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events…’ �This is essentially a codification of a long standing common law principle permitting the "fair use" of a portion of a work either for purposes of illustration, review or criticism, so long as the quantity and value of the portion taken was not substantial. �it is difficult to define in precise terms what would constitute "fair dealing". The facts of each case would therefore have to be approached separately and with cautions.

EXCEPTIONS TO THE RIGHT OF THE COPYRIGHT OWNER (CONT. ) �As formulated by Justice Story of the US, ‘the question. . . is whether [the act complained of] is a justifiable use of the original materials, such as the law recognizes as no infringement of the copyright. . [We] must often, in deciding questions of this sort, look to the nature and object of the selection made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work’. �Apart from the requirement that the use of the work must constitute fair dealing, it must also be for the purpose of research, private use, criticism and review or for reporting of current events. This provision makes it even more difficult for a user to take benefit of this exception.

EXCEPTIONS TO THE RIGHT OF THE COPYRIGHT OWNER (CONT. ) �It is likely that the courts will interpret this provision very strictly, the general understanding being that these kinds of exceptions should apply in "special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder’’. �In the final analysis, any reproduction that could be seen to affect the economic interest of the author will most likely not be covered by the fair dealing exception. �The issue of fair dealing is certainly formidable but not insurmountable. REPRONIG and other interested parties should continue to negotiate and agree on the boundaries of the protected rights. Unfortunately, none of the exceptions provided in schedule 2 of the Act has been tested in our courts. In any event, it would be in the interest of both owners and users of works that the areas of conflict are resolved out of court.

PAYMENT FOR REPRODUCTION OF LITERARY WORKS �Photocopying remains the most visible violation of copyright in literary works. While one would have been pleased to note that this once revolutionary technology is gradually phasing out, more intense challenges and wider opportunities are even presented by the emerging electronic and Internet based technologies of today. �All business outfits which engage in large scale photocopying and other forms of reproduction including reproduction in the digital environment ought to obtain licenses and pay royalties for such reproduction to REPRONIG.

PAYMENT FOR REPRODUCTION OF LITERARY WORKS (CONT. ) �Copyright infringement is a species of tort and as is the case with other torts, any person that is found to have collaborated with the primary defendant in the commission of the infringement would be liable as a joint tortfeasor. �Similarly, an employer may be held vicariously liable for a copyright infringement committed by its employee acting in the course of his duty. In such cases, it is no defence that the employee may have been given a general warning or prohibition against the doing of acts that might amount to an infringement. �Consequently, educational institutions are liable for the reproduction of works carried out by its members of staff and students in its environment.

PAYMENT FOR REPRODUCTION OF LITERARY WORKS (CONT. ) �Educational institutions are secondary infringers. They would be directly liable either for doing or authorizing the doing of the infringing act or vicariously for the actions of its teachers and students. It is therefore important that these institutions negotiate and obtain licenses for works used within their institutions.

CONCLUSION �The history of copyright through the last four Centuries has been characterized by the challenges of emerging technologies and the conflict between protection and access. �While photocopying and other forms reproduction grant more access to users of literary, musical and artistic works, it is also important that these usages are paid for because as they say, ‘a labourer is entitled to his wage’.

END OF PRESENTATION THANK YOU