A Federal High Court sitting in Lagos has refused the prayers of a cable outfit, Multichoice Nigeria Limited, to strike out the claims of the Musical Copyright Society Nigeria Ltd/Gte (MCSN) in its N30billion copyright infringement suit instituted against it for want of jurisdiction.
In the preliminary objection filed before Justice Daniel Osiagor and argued by counsels to Multichoice led by Moyosore Onigbanjo (SAN), four issues were raised for determination by the court.
The defence argued that the plaintiff, MCSN, commenced the action in breach of Section 14 of the Copyright (Collective Management Organization) Regulations 2007 which mandates parties to submit disputes arising from any matter within its purview to the Nigerian Copyright (Dispute Resolution Panel) to settle.
They submitted that the plaintiff, MCSN, did not, in the first instance, seek the leave of court before commencing action for infringement of copyright in respect of which both the copyright owner or an exclusive licensee have a concurrent right of action as stipulated by Section 37(3) of the Copyright Act, 2022.
Thirdly, it was argued 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.
The defendant contended that the plaintiff lacks the locus standi to sue as a Collective Management Organization (Collective Society) and maintain any action with respect to that capacity because its license has expired and has failed to renew same as provided by section 1(9) of the Copyright (Collective Management Organization) Regulations, 2007.
In its response, the plaintiff, MCSN, through its counsel, Dada Awosika (SAN) filed a 16-page affidavit and formulated a lone issue for determination by the court.
The plaintiff prayed the court to determine “Whether the honorable court, given the 1999 Constitution and the Copyright Act 2022 , has requisite jurisdiction to hear and entertain the subject matter of this suit?”
Awosika argued that the suit is a copyright infringement action which 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 carries civil and criminal liabilities in nature as provided for under Section 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.
MCSN submitted that by the Exhibit M1 (letter of renewal of certificate) and M2 (certificate of approval) attached to the counter affidavit, it has a valid license 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 by the defence .
Ruling on the issues before the court , Justice Osiagor agreed with MCSN’s position that in line with the provisions of Section16 of the Copyright Act, it has the right to approach the court to ventilate any violations of its copyright works.
The court dismissed claims by Multichoice that the plaintiff ought to seek the leave of court in filing any suit relating to infringement of copyright wherein the copyright owner and an exclusive licensee have concurrent right 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 falls within such a situation to warrant the need of the 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 therefore dismissed Multichoice claims that the plaintiff’s license has expired; saying “Exhibit 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 fulfill 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.
The court ordered the Nigerian Copyright Commission (NCC) to set up a conflict and Dispute Resolution panel for the parties.
Justice Osiagor ordered parties to report back to the court in October 2024.
