VOLUME  2  ISSUE 3

Webinar Summary: Music, Music Publishing, Sound Recording: A Paradigm Shift for Afrobeat(S)

Summary: The Music Industry in Nigeria has witnessed phenomenal growth and has become an export point in the distribution of Afrobeat(s) music to the rest of the world. The rise in the number of creative works and development of great indigenous content in terms of quality of compositions and sound recordings is the obvious reason for this growth. Nigerian music has become relevant across the world, thus making it obvious that there is an absence or limited presence of a music publishing industry which is crucial to this phenomenal growth.

Indeed, the music publishing sector in Nigeria has not achieved much in comparison to the music boom or best practice in other jurisdictions. There are issues of lack of education among the artist, the difficulty in generating revenue and the challenges of investment. The focus of the webinar talk is on the law as it relates to music publishing, the business of making money in the industry, the owners of music and how to proffer some solutions to the difficulties.

HOST: D. Olatunde Laoye is the Managing Partner, L & A Legal Consultants. He is a consummate solicitor and expert negotiator at the transactional end of practice. He has extensive experience in corporate and commercial practice, intellectual property, media and entertainment amongst others.

The webinar examined conceptual and practical intellectual property issues from different perspectives on the music industry in Nigeria. The gap in development of the music publishing sector was identified, and the advent of Music streaming and the global best practice in music publishing was critically scrutinized.

Due to the growth and increase in revenue of the entertainment industry in Nigeria, it has become inevitable to address issues on music publishing of Afrobeat(s)-contemporary genre of Nigeria’s music industry globally, the challenges of the seemingly non-existent music publishing industry is apparent.

MODERATOR: Adebambo Adewopo  Of Counsel, L & A Legal Consultants. He is Professor of intellectual property at the Nigerian Institute of Advanced Legal Studies (NIALS) and Senior Advocate of Nigeria, the first IP academic admitted to the Inner bar.

Music publishing in Nigeria is not only a tropical issue in Nigerian Music Industry today but also it is a huge missing part in the seemingly non-existent publishing industry. The music industry due to the high rise in exponential growth is predicted by experts as one of the most valued creative asset and source of wealth. By some, it accounts for the global recorded revenue of 19 billion dollars in 2018, music publishing accounts for 5.5 Billion Dollars.

In the Nigerian market, report compiled over the span of 5years, the period within 2015 and 2020, published in 2019 by the Nigerian Recording industry ranks Nigeria’s recording business at 50million dollars based on recording revenue locally generated. So, we seek to ask key questions and proffer possible answers. Where is music publishing in this figure with an apparently weak or non-existence structure? The fortune of writers, creatives, artists, singers and investors are limited and only visible in the mostly explored areas of performance and endorsements in the industry. This webinar seeks to address the law, business, music composers and the money to be made in music publishing.

Dr. Ifeoma Ann Oluwasemilore is an Intellectual Property specialist with focus on Copyright and related Rights, e-commerce and law of banking and negotiable instruments. She teaches intellectual property law at the Faculty of Law, University of Lagos.

The position of the law is to create an enabling environment for the industry to thrive and build. The primary law to guide us in music publishing will be the Copyright Law, Cap C28 LFN,2004. The legal regime for music publishing will be subsumed in copyright protection in Nigeria which is governed by the Copyright Act. Section 1 of the Copyright Act provides that literary and artistic works are works entitled to protection. A song writer owns all his rights in a song, he reserves 100% of his rights in the work, but where a song writer signs his right away, he loses a 100% of his rights in the copyright work. Until the artist gets a publisher, he reserves 100% of all rights in the song.

In Section 6 artists are entitled to publish, distribute, reproduce, copy and adapt their work. The right to make and sell is for the artist. There are two kinds of copyright, copyright in the sound recording and copyright in the song or lyrics owned by the writer. An artist can only lose these rights where he or she agrees to grant a publisher the right to produce the music. The moment an idea is fixed in a medium, it’s enough to say that the artist is the owner of the copyright until the right is shared with the publisher, who then activates part of the rights to either distribute or copy or reproduce.

A copyright owner need not register the copyright work, it is sufficient to bring a claim for the rights entitled to the creator in a court of law without registration. The system in Nigeria is the notification system. It is advisable for ease of litigation when there is conflict to notify the Nigerian Copyright Commission on the existence of the work. This notification can serve as evidence of the original owner in court.

Colin Gayle is a producer, artist manager, and media executive per excellence. His career has recorded remarkable accomplishment from corporate America to the vast fields of entertainment industry.

Music publishing involves song writing, a process of ensuring music catalogue creation and collection of royalties for the musical work. A music publisher collects royalties from radio, television and others. It is the responsibility of the publisher to collect income for all use of music or copyright by others on behalf of his client. That is, where a radio station plays an artist song, the radio station pays for the number of playtime in which the song is played.

There are different modes to assess the various media platforms. The music publisher tracks these media platforms and others for the royalties due to the creator of the copyright. They pay a blanket license for music played on television stations which is divided by the performing rights association.

The case of movies is different. When music is played in a movie you a sync fee is earned. There has been a shift in recent times on online streaming platforms as there are global publishers who collect royalties from online music streaming. The mechanism through which the music fees are determined is either through administrative deals or co publishing deals. However, co-publishing deals are preferred.

In a co-publishing deal, both the content creator and the music publisher own the rights to publish and the right to explore the work. The responsibility of the publisher is to exploit and expose the copyrighted work to the entire world and collect royalties from relevant bodies and organization. There is a serious issue regarding the revenue generated through music publishing, as far as Nigeria is concerned there is a continued export of Nigerian music creatives to the foreign market to publish their creation; denying the country of any means through which revenue is generated internally.

This situation is a major setback. In future, creatives will have apathy towards indigenous publishers. Burnaboy a Nigerian Artist is signed to Atlantic Records and Universal Studio, worldwide publishers. The royalties claimed on the copyrighted work of Burnaboy is taxed in the company’s place of residence. Consequently, artists use these platforms as opposed to using a music publisher in Nigeria. The sector does not generate any income for the country nor create investment.

Lack of education is Nigeria’s big challenge in raising a viable music publishing industry. Nigerians need to embrace training and artist need awareness in the area of music publishing. There is also the issue of exorbitant administration fee charges that are as high as 38% in Nigeria whereas in United States and other jurisdictions charges are as low as 12%. This is one of the draw back in the regulation of Nigeria’s publishing industry. This hike in fees further pushes creatives away out of the shores of the country, there is an urgent need to correct this to avoid the movement of content creators outside the nation.

Nigerians in the Music business need to adopt global best practice in addressing issues in this sector to further improve on it.

Akinyemi Ayinoluwa is a lawyer, consultant, Partner and Co-Founder at Hightower Solicitors and Advocates. He specializes in entertainment law and practice.

The business of music publishing is the business of song writing and how compositions are exploited commercially, as it stands now, Nigerian music is recognized globally and appreciated. Some of Nigeria’s colorful musicians are collaborating with their foreign counterparts to create chat toping music and sounds. The implications of this regarding ownership is wealth creation. In Nigeria, compositions, songs and sound recordings are owned by the creator. There has to be a guarantee that the musical work created, artist and creatives will receive sufficient compensation.

The original compositions of sounds and songs should be adequately exploited and there should be guaranteed compensation. There has to be proper relationship between the artist and the publisher, since the publisher will be responsible for tracking the song. The music publisher goes to different collection society on behalf of the artist to claim the royalties for the artist.

Since the advent of streaming and streaming platforms there has been a paradigm shift, the current trend now is that artists can easily upload their music on streaming platforms where the music can be easily downloaded. The streaming platforms charge a percentage while the artist is entitled to a percentage share from earnings made by the created work.

Law in Nigeria reserves all the rights of the artist, who is the owner of copyright. In the course of music business, a technical issue that arises is sampling another person’s creation or work of art. To sample a work means to do a remake of an already created work either by referencing it or improving on it. In other to successfully sample, there is need to seek the owner’s consent or permission. The artist who fails to ask for the owner’s consent may suffer litigation actions and may lose certain royalties and entitlement.

It is worthy to note that the business is about consent and permission. Where there is no permission the original owner can lay claim to the newly created sample or a fraction of the record.

Ayoyemi Lawal-Arowolo Professor at the School of Law & Security Studies, Babcock University. LL. B Lagos State University (LASU), BL, LL.M a Indiana University-Indianapolis US and Ph.D. University of Kent, Canterbury UK.

It is worthy of note that there is a gap in music publishing in the music industry in Nigeria. This gap is an issue for the growth of the industry, there are people who are taking advantage and making money at the expense of artist, they claim to be assisting them to get to the peak of their career. The owners of creations are entitled to compensation and royalties for their works.

The role of a music publisher is more than the collection of royalties. They are involved in the review and auditioning of music in similarity to practices in other jurisdictions like the United States. In Nigeria collection of royalties is through Collective Management Organizations (CMOs), they are responsible for searching for users and collecting royalties for the music owners. However,little or no recognition is given to composers of these music resulting in the gap earlier stated.

The copyright Acct in sections 6 and 7 has provisions on the general nature of copyright and the nature of copyright in sound recording. The right of the owner to publish is expressly stated but there should be more to cater for the music publishing industry; to expressly state their limitations in similarity to the provisions on collecting societies in sections 17 and 39 of the Copyright Act. The gap in the law and the industry is glaring. Also missing is a structure for music publishing in Nigeria.

The era of a single collecting society in Nigeria is gone. The boom in Nigeria’s music industry requires more than one to adequately take care of the needs of this industry in Nigeria and globally. The provision in the Copyright Act stating that another CMO can be approved, if the one in existence does not carry out its functions adequately is the loophole for having more than one collecting society based on law. Having multiple CMOs in the country will ensure a wider and even more efficient way of generating revenue is captured. Regulators should allow the existence of more than one CMO in this era by expressly stating it in the law, otherwise it remains implied and can be interpreted in none beneficial ways to the industry.

Emmanuel BEZ Idakula is a Nigerian artist, multi-instrumentalist, singer-songwriter, composer, vocalist, lyricist, creator and mentor.

The issues surrounding the absence or weak publishing institutions is such that artists lack the necessary education. Most artists perceive music as passion and not necessarily a business and they are more excited about becoming popular. Secondly, the environment or society has contributed to the issue; since there is no culture of payment of royalties artists are entitled to, by the radio stations or difficulty with the collection organization. There is the issue of radio stations and Copyright Society of Nigeria (COSON), where the stations stop playing songs owned by artist of membership to COSON. Finally, most artists focus on the performance of music to generate revenue which is the most popular area of making money and nothing else. There is definitely an issue with the music publishing system, the structure and environment.

Conclusion: In conclusion three keys things can be gathered from the discussions.  They include the need for urgent education, awareness and training of stakeholders in the music industry in the area of music publishing. Secondly, the need to create enabling structures that will allow role players in the music business to effectively generate revenue and lastly, the indoctrination of global best practices in regulations and policy of the music business.

Please click the link below to watch the recorded version of the Webinar https://youtu.be/4wkLVbrzTuo

For further enquiries, about our IPRs Talk Series, please send a mail to info@lalegalconsultants.com

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