By Femi Alonge
In Nigeria, as it is in other parts of the world, music transcends the boundaries of entertainment in that it is one of the very foundations of the cultural heritage of the Nigerian people; regardless of ethnic or religious backgrounds, music binds people. Music as an intellectual property falls within the purview of copyright protection as provided by the Berne and Paris Conventions vis-à-vis the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement.) In this sense, Copyright simply provides the framework for the protection of rights of original authors – artistes in this case, who constitute exclusive right owners of their musical works. Interestingly, today, Intellectual Property (IP) is creating a revolution in the music industry with the advancement in digital technology. Some scholars argue that the revolution is positive while others subscribe to the alternative view. Undeniably, there has since been an alarming growth rate of infringement of Intellectual Property Rights (IPRs) in musical works via illegal downloading or distribution of copyrighted music on the internet, as mostly perpetrated by young individuals. It is pertinent to note that such acts are illegal, and are prohibited or criminalized by various municipal and international legislations, some of which are highlighted above. With a population of over 200 million people, Nigeria offers one of the largest commercials markets for raw music talents, sadly the realization of such prospects is delayed by the barriers set up by digital piracy. In short, these facts indicate the growing economic exploitation of stakeholders in the music industry – a diagnosis. In truth, such diagnosis calls for urgent protectionist measures – clinical solutions.
The unauthorized use, reproduction and distribution of such musical creations – digital music piracy, diminishes local profits and as a result, frustrates prospective investment in the music industry because potential investors are not willing to stake their money in pursuits that have little or no guarantee of at least commensurate returns. This simply explains the urgent need to establish an equilibrium between the economic interests of the artistes as well as music lovers in the country. Apart from investments in brand promotion, merchandizing and record labels, artistes need copyright protection to stay in business, and to do so, such acts of illegally downloading musical works on the internet that boycott adequate remuneration in the form of royalties to IPR owners in the music industry must be effectively curbed. Musicians may very well acquire copyright and trademark protection over the album art, original music, band names and their digital variations but such protection is not absolute because it requires a working enforcement mechanism.
Flowing from the bitter truth that music IPR owners are losing revenue due to illegal downloading of copyrighted music, is the question of what countermeasures are readily available to deter such vice in the Nigerian music industry.
First on this note is that there ought to be the existence of working institutional enforcement agencies on IPRs in the music industry in Nigeria. For instance, Copyright Society of Nigeria (COSON) is an agency responsible for administering mechanical, performance rights. COSON licenses music users through collection of license fees which are distributed as royalties This sole procedure prevents third parties from boycotting remuneration. More important it is, to emphasize that COSON is partnered with other IP institutions such as World Intellectual Property Organization (WIPO), International Confederation of Societies of Authors and Composers (CISAC), Nigerian Communications Commission (NCC), et cetera – which is a step further towards combatting piracy and ultimately boosting investment in the music industry. However, this does not directly deter illegally downloading of copyrighted music, hence the need to adopt a sui-generis institutional framework in the Nigerian musical industry, where there are conservatory measures set up by licensed service agencies to contain online sharing and digital piracy in the music industry.
In Nigeria, it is quite common to see perpetrators of such act as there are various illegal downloading sites for such purposes which require meagre or zero cost. More so with the advancement of digital technology, emerges novel techniques of pirating online musical records. To this end, there are various local sites which enable peer-to-peer (P2P) network of file-sharing of copyrighted musical records of Nigerian artistes and free downloads on personal computers (PCs) or MP3 players. This rather unfair exploitation by the public increases every day at an alarming rate being the widely recognized acceptable norm. For instance, most of the traffic on websites such as waploaded.com, mp3music.com, naijaloaded.com, bittorrent.com, tooxclusive.com; largely lack the authorization of original creator(s) of musical content (not in public domain) for torrent distribution. However, on a rather positive note, some recognized sites such as YouTube and Apple iTunes Store provide for a Digital Rights Management System (DRMS) that encourages automatic revenue allocation to music copyright owners based on views, sharing or downloads. All thanks to technological innovations, some of which include copy-protection or copy-management systems, digital watermarks and encryption systems which deter infringement of IPR owners of copyrighted digital musical works. Nigerian music owners who wish to enjoy such Technological Protection Measures (TPM) are advised to subscribe to such IPR protection mechanisms and technological tools in order to effectively enforce their copyright. Another of such protectionist measures is the use of smart contracts in the Nigerian music industry; smart contracts grant music copyright owners access to automated remuneration subject to predetermined license terms. By extension, major stakeholders in the music industry can secure Public-Private Partnership (PPP) Agreements and through blockchain technology build a music database system covering the length and breadth of the country via the supply chain of music distributors and media affiliates. Such a classic case of technology versus technology has the tendency of refurbishing the music industry with endowments of market expansion, financial growth and sustainable revenue generation. It is imperative to add here that some posit quality reduction as an appropriate countermeasure to online sharing of musical works but nothing is farther from the truth in that online sharing is largely influenced by inflation, low income and high bandwidth thus it is advised to subscribe rather to these technological innovations which positively influence purchase intention.
Furthermore, IP infringement in terms of digital piracy; illegal downloading of copyrighted music attracts both criminal and civil penalties in developed jurisdictions. There is the liability for damages – statutory or actual or monetary, common in foreign legislations such as the United States (US) while in Italy, multiple illegal downloading sites are blocked. Other known penalties include sanctions, injunctions, fines, or even imprisonment. In addition to this legal framework, law firms and more particularly, music and entertainment lawyers are nurturing the habit of aggressively investigating cases of piracy of musical works, or generally, the entertainment industry, invoking relevant laws in a bit to recap huge financial settlements. Although some might condemn such acts as self-oriented, one must however agree that desperate times indeed require desperate measures. Accordingly, stakeholders in the music and legal industry in Nigeria are urged to adopt such investigative and reporting roles as clinical best practices.
Consequently, illicit practices of illegal downloading and sharing of copyrighted music have significant adverse effects on the revenue of the Nigerian music artistes, hence they are advised to adopt the Digital Rights Management System (DRMS) which makes the copyright owner the controller services required of such online musical works, whether number of views, downloads, copies or plays. Thus, the proper education of Nigerian music owners and enthusiasts on such need for implementation of procedures and mechanisms for DRMS, coupled with this sui-generis institutional framework of protectionist measures will ultimately ensure that the menace of illegal downloading in the music industry is effectively curtailed in Nigeria.